Leopardi & Or v Complete Natural Stone & Calabrese No. DCCIV-99-89 Judgment No. D56

LEOPARDI & ORS V COMPLETE NATURAL STONE P/L & CALABRESE
[1999] SADC 89 of 1999

Judge Allan
Civil

The principal issue in this case is whether the defendant Complete Natural Stone Pty Ltd (“CNS”) is entitled to operate a quarry owned by the plaintiffs.
The plaintiffs seek the following declarations and orders:
‘(a)... A declaration that the defendants are not entitled to enter on to or use the land and quarry.
(b)A declaration that the defendants are trespassing on the land and the quarry.
(c).... An order that the defendants forthwith remove or cause to be removed all of their plant and equipment located on the land and the quarry.
(d)That thereafter and until further order each of the defendants be restrained and an injunction be granted restraining them, whether by themselves or by their agents servants employees or otherwise from entering on to or otherwise dealing with the land on which the quarry is situated.
(e).... An order that an account and enquiry be made and taken with regard to all stone and other extracted minerals taken by the defendants from the quarry from 24 October 1988 to the date of this order.
(f)Costs.
(g).... Any further or other orders the court may deem fit.’
For its part, CNS seeks the following orders:
‘1..... An Order or Declaration that there is an agreement, right or licence (“the Agreement”) to enter onto the land and quarry and remove stone from the land in accordance with the terms set out in the document entitled “Heads of Agreement”.
2.Orders for specific performance of the Agreement.
3...... In the alternative, damages to be assessed compensating CNS for the Plaintiffs’ misleading and deceptive conduct..
4.Costs on an indemnity basis.’
The plaintiffs are the registered proprietors of the whole of the land contained in Certificate of Title Register Book Volume 5429 Folio 602; the plaintiff Leopardi (“Leopardi”) as to one undivided second part and the other plaintiffs (“the Rollonds”) as joint tenants of one undivided second part. Situated on the plaintiffs land, which is at Wistow, is a bluestone and slate quarry. The plaintiffs are the holders of a mining tenement in relation to the quarry. It is tenement No. PM170. In the tenement, Leopardi is described as the holder and operator and the Rollonds are described as the joint holders.
The plaintiffs bought the land from a man called Seaton Dredge in October 1997. They operated the quarry for the benefit of their respective businesses. The Rollonds had a landscaping business, amongst other things, and they used stone from the quarry for the purposes of that business. Leopardi sold stone from the quarry. The costs associated with the quarry, such as the royalties paid to the government, were shared; but there was no sharing of income; for example, Leopardi retained any money that he got for the sale of stone. The Rollonds owned a front end loader which they used in the quarry for their purposes and they allowed Leopardi to use it for his purposes.
It was contended for by the defendants that the plaintiffs operated the quarry in partnership, but I do not think this was so. They did not regard themselves as partners for the purpose of operating the quarry and, it seems to me, the facts bear that out.
In early March 1998, Leopardi had a conversation for the first time with the defendant Calabrese (“Calabrese”). Calabrese had previously operated the quarry and Leopardi had learnt of that when he was researching the history of the quarry. Leopardi had contacted Calabrese because he wanted to discuss the possibility of the business name under which Calabrese had operated the quarry being transferred to him. They discussed a number of things in a lengthy conversation, including the business name, signs on the property relating to the quarry and whether they could be purchased, the previous ownership and operation of the quarry by Calabrese, the sale of the property by a bank pursuant to a mortgage and the attempts by Calabrese to purchase the property from Seaton Dredge. They arranged to meet.
On 26 March 1998, Leopardi and Calabrese met at the quarry. A further discussion ensued. They discussed a number of things, including the signs, the previous ownership of the land, the current ownership of the land, Leopardi’s arrangement with the Rollonds whereby the quarry was operated and the supply of stone to Calabrese from the quarry.
Subsequent to this conversation, Leopardi sold some stone to CNS. On 25 June 1998, a quantity of stone was supplied by Leopardi. It was paid for by a cheque in the name of CNS which cheque, as I understand it, was handed to Leopardi by Calabrese. Subsequently, on 18 August 1998 and 9 September 1998, further stone was supplied by Leopardi to CNS. Payment for each was made by way of cheque in the name of CNS.
Calabrese said in evidence that, during the first conversation he had with Leopardi, he told Leopardi that he, Calabrese, was employed by CNS. Leopardi denied this. I think it is unnecessary for me to decide whose version I should accept on that topic, because, whatever the position, I am satisfied that, at an early stage of their relationship, Leopardi became aware of the existence of CNS and that, in some form or another, Calabrese worked for that company.
Between June and September 1998, on various occasions,Calabrese raised with Leopardi the prospect of CNS mining stone from the quarry. Leopardi was open to such a proposal, as was Phillip Rollond with whom Leopardi raised the matter. After a time, Leopardi asked Calabrese to put his proposal in writing.
On 18 September 1998, Leopardi and Calabrese met at the quarry and produced the document exhibit P5, a copy of which is annexed hereto. The document was written by Leopardi, Calabrese not being comfortable writing in English. The document was signed by Calabrese and Leopardi. I am satisfied, and find, that, during the course of this conversation, Leopardi told Calabrese that the Rollonds would have to be consulted about any proposal for the operation of the quarry. Calabrese said that he would arrange for his solicitors to prepare a formal document which would be forwarded to Leopardi and the Rollonds for their consideration.
Calabrese duly instructed a solicitor, Mr Bungey, and, on 1 October 1998, a meeting took place at the quarry between Leopardi, Calabrese and Mr Bungey. Before the meeting, Mr Bungey had obtained a copy of the certificate of title to the land and the mining permit. A number of matters were discussed: they included the amount of blasting which would be done, who would do it and where it would be done, the pallets which would be used for transporting stone, the sort of stone to be removed, the price of the stone removed, the method of recording the stone removed, the time for payment for the stone removed, access by other people to the land, CNS having first right of refusal in the event of the quarry being offered for sale, the terms of any agreement, the weight of the stone removed, compliance with the Mining Act, the payment of royalties to the government, the erection of a shed for storage and whether CNS would have a lease of the quarry.
Mr Bungey duly prepared a document described as “Heads of Agreement”. By arrangement with Leopardi, it was faxed to the Rollonds fax number on 8 October 1998. A copy of that document, which is exhibit P6, is annexed hereto. It was accompanied by a letter in the following terms:
‘I refer to the discussions with Michael Leopardi on 1 October 1998 and now enclose a copy of Heads of Agreement which I have prepared which are intended to set out the basic terms of the arrangement between Complete Natural Stone Pty Ltd and the owners of the land.
Please let me have any comments you may wish to make in relation to that document.’
On 9 October 1998, some alterations having been made by Mr Bungey to the document at the request of Calabrese, an amended Heads of Agreement, P7, was faxed to the Rollonds fax number. A copy of that document is annexed hereto. It was accompanied by a letter in the following terms:
‘I refer to my facsimile of 8 October 1998 and realise that the provisions of 2(d) and the following paragraph may not accurately reflect the proposal.
I have therefore amended those paragraphs and enclose the amended document for your comments.’
The Rollonds decided that they did not like the terms contained in these documents and decided they would not be entering into any contract with the defendants. They communicated that fact to Leopardi shortly after 10 October 1998. The Rollonds and Leopardi did not respond to the faxes.
After 1 October 1998, blasting work was carried out at the quarry. This work was performed on 23 October 1998 by Hans Guyer; a man who had previously done work for both Calabrese and Leopardi. Two blasts were performed; one for an area to be used by Calabrese for the purposes of CNS and the other for an area to be used by Leopardi. CNS paid for part of Guyer’s bill for doing the work and Leopardi paid the balance. Calabrese helped to prepare the quarry for the blasting.
CNS operated the quarry from 24 October. Leopardi was aware of that and the Rollonds became aware of it too.
On 18 November 1998, the Rollonds’ solicitor wrote to Calabrese in the following terms:-
‘We are acting on behalf of Barbara, Phillip and Julie Rollond, the owners with Mr Michael Leopardi of land at Kineke Road, Wistow on which there is a bluestone and slate quarry.
Our clients instruct us that you have entered upon the land for the purpose of quarrying, and that you have done so without having any authority from our clients to do so.
Our clients are not willing for you to remain in possession of the land and accordingly have instructed us to request that you vacate the land immediately and remove all plant, equipment and chattels brought by you upon the land. You have licence from our clients to enter upon the land for this purpose and for no other purpose.
Should you fail to remove these items from the land within the next 7 days, our clients will take such further action as they may be advised.’
CNS responded by letter from its solicitor faxed to the Rollonds solicitors on 25 November 1998 in the following terms:
‘We act for Complete Natural Stone Pty Ltd in relation to this matter and refer to your letter of 18 November 1998.
We are instructed that Mr Calabrese has never dealt with your clients and that at all times in his discussions with Mr Michael Leopardi, Mr Leopardi has purported to act with the authority of your clients. In fact in the early stages of negotiations there were some issues which Mr Leopardi specifically indicated he would refer to your clients. They were subsequently resolved.
We enclose a copy of a hand written Agreement signed by Mr Calabrese and Mr Leopardi dated 18 September 1998 and a copy of draft Heads of Agreement prepared by us and sent to Mr P Rollond and Mr Leopardi on 9 October 1998.
After 9 October 1998 Mr Leopardi indicated to Mr Calabrese that the Heads of Agreement were acceptable and on that basis Mr Calabrese organised for drilling and a blast on the site to take place on 24 October 1998.
Before 24 October 1998 Mr Calabrese also did a large amount of work on the site in preparation for the blast and also work on the site to assist Mr Leopardi. At no time during the conduct of that work did Mr Leopardi indicate that there was any disagreement about the terms of the Heads of Agreement. In fact, he confirmed that the Heads of Agreement were acceptable.
It was only after the blast on 24 October 1998 that Mr Leopardi indicated to our client that your clients had some concerns about the arrangements. In fact, Mr Leopardi only indicated at that time that your clients were concerned about the term of the agreement. In all other respects, according to Mr Leopardi, the agreement was acceptable.
In our view your clients have allowed Mr Leopardi to negotiate on their behalf and are bound by his acceptance of the arrangement. We do not agree that your clients are entitled to evict our client from the land.’
The Rolland’s solicitor replied by letter dated 18 January 1999 in the following terms:
“We refer to your fax of 25 November 1998.
The only point we wish to make at this stage is to deny your assertion that Mr Leopardi had been authorised by our clients to contract with Mr Calabrese on their behalf. On the contrary, Mr Leopardi had been informed by our clients that they did not wish to enter into any arrangements with Mr Calbrese.
Mr Leopardi has told our clients consistently that his discussions with Mr Calabrese proceeded on the basis that any agreement under which Mr Calabrese might obtain access to the quarry would require our clients’ approval. In this regard, we note that the document dated 18 September 1998, which you claim to be a handwritten agreement between the parties, names Mr P J Rolland as a party to it, yet he has not signed it, nor has Mr Leopardi purported to sign on his behalf.”
Many of the facts which I have just recited are not really in dispute. On matters of dispute, my findings indicate the evidence on each topic I prefer and accept. It will be necessary for me to make further findings of fact for the purpose of deciding the issues in the case, and I will do so as it becomes necessary.
The defendants contend that, by an agreement partly oral and partly in writing, the plaintiffs agreed to grant CNS the right to quarry bluestone and slate on the plaintiffs land on terms and conditions more particularly described in exhibit P7. The defendants contend that the agreement, in so far as it was oral, was made in a conversation between Calabrese as agent for CNS and Leopardi on behalf of himself and as agent for the Rollonds on 18 September 1998 and confirmed at the meeting on 1 October 1998. The defendants contend that, in so far as the agreement is in writing, it is evidenceed by exhibit P5 and exhibit P7.
In the time leading up to 18 September 1998, in the conversations Calabrese and Leopardi had about the possibility of CNS mining the quarry, Leopardi told Calabrese that Phillip Rollond was open to the idea of entering into such an arrangement if agreement as to terms could be reached. For his part, Leopardi looked upon the prospect of such an arrangement favourably. During the course of these conversations, things such as the price to be paid for the stone removed from the quarry, the site of blasting work and who should control the blasting were discussed. During this period, Leopardi was seeking Phillip Rollond’s views on these things. At one stage, Calabrese proposed that CNS pay $5.00 per tonne for stone removed by it. This was put to Phillip Rollond by Leopardi and Phillip Rollond said that $5.00 per tonne was not enough. Calabrese was informed by Leopardi that $5.00 per tonne was not acceptable. In one of the conversations he had with Leopardi at about this time, Calabrese increased the proposal to $8.00 per tonne. Leopardi told Calabrese that this was not acceptable. At some time prior to 18 September, Calabrese said CNS was prepared to pay $10.00 per tonne. There seems to be little dispute about these matters.
Leopardi and Calabrese gave evidence about the events of 18 September 1998 including the preparation of exhibit P5 and the signing of it. The effect of the evidence of Leopardi on this topic is that, following the earlier discussions, it was time for the defendants proposal to be reduced to writing so that he and, particularly, the Rollonds could give some consideration to it. He denied that he had ever agreed a price of $10.00 per tonne, saying that, at all times, he had said that no agreement could be reached unless the price was at least $10.00 per tonne. He said that he told Calabrese that any proposal contained in exhibit P5 would have to be approved by the Rollonds. He denied that he had ever said to Calabrese that a price of $10.00 per tonne would be accepted. He denied that he had ever said to Calabrese that he, Leopardi, was the majority shareholder and that it was totally up to him what was agreed. Leopardi said, in effect, that, in writing out exhibit P5, he discussed each matter referred to in the document with Calabrese, but did not indicate any agreement had been reached on any of the topics; rather, he said that he discussed each item with Calabrese so that he understood what it was that was being proposed so that he could write it down. He denied that, before starting to write, Calabrese said to him words to the effect that, now that they had a deal, he would put something in writing.
The effect of Calabrese’s evidence on this topic is that, by 18 September 1998, an agreement had been reached. He said that, prior to that time, there had been some negotiations between himself and Leopardi about price and other matters with price being the main topic of discussion; the terms of any arrangement being, so far as he was concerned, at least to a large extent, linked to price. He said that, prior to 18 September 1998, Leopardi told him that he and the Rollonds would accept $10.00 per tonne and that he had indicated that he was prepared to pay that amount. According to his version of the events, the matters mentioned in exhibit P5 were discussed between him and Leopardi and agreement was reached in relation them.
Where there is a conflict between the evidence of Leopardi and Calabrese on these matters, I prefer the evidence of Leopardi. I am not satisfied that, at any time, Leopardi said to Calabrese that he and the Rollonds would accept $10.00 per tonne. I think this means that no contract was entered into on or before 18 September 1998. The wording of P5 itself might tend to suggest the opposite. Apart from anything else, the word “agreement” is specifically mentioned; but, this does not dissuade me from the view I have taken. Notwithstanding the form of P5, against the background of the other material, I think the effect of the document is to put forth a proposal for consideration by the plaintiffs. It is a document prepared by people unsophisticated in such matters. It is true that Leopardi signed the document, but I accept that he did so at the request of Calabrese and that he did not do so with the intention of entering into a contract in those terms; and, bearing in mind that he told Leopardi the matters contained in P5 would have to be approved by the Rollands, Calabrese, could not have thought so either. As it happened, Philip Rolland did not sign the document.
I think that what was said between the various parties to the conversation which took place at the quarry on 1 October 1998 must be seen against the background of the events of 18 September 1998 and the period leading up to that time. As I have mentioned, a number of matters were discussed at the quarry on 1 October. Mr Bungey made notes of those matters during the return trip from the quarry. During the course of the meeting, as various matters were raised as to the proposed operation of the quarry pursuant to any arrangement between the parties, Calabrese and Leopardi discussed them and indicated their assent or otherwise to a particular method of operation or conduct; and it was the results of their discussions that Mr Bungey recorded in his notes following the meeting.
During the course of the meeting on 1 October, the attitude of the Rollonds was raised. According to Leopardi, he told Mr Bungey and Calabrese that the Rollonds would need to agree on the terms and conditions being discussed. Calabrese said that Mr Bungey enquired as to whether the Rollonds would have to agree to these things and that Leopardi replied to the effect that they did not have to agree, that they left it to him and that as long as they got $10.00 per tonne they would be happy. Mr Bungey said that he said to Leopardi “Well how do the Rollonds feel about this arrangement?”. He said that Leopardi replied “As long as they get their $10.00 per tonne, they’re fine”. I prefer the version of Mr Bungey. I found his evidence on this topic the most reliable.

I think the events of 1 October do not advance the matter any further so far as the defendants are concerned. I think the proper interpretation to be placed on what occurred at the quarry is that Calabrese and Leopardi, with the assistance of Mr Bungey, were reducing the proposals represented by P5 to fine detail; and that nothing occurred on that occasion to change the position that the Rollonds would have to approve any proposal. I think the mere statement by Leopardi to the effect that the Rollonds would be satisfied so long as they got $10.00 per tonne for stone was no more than an expression of opinion by him as to what their attitude to the proposal might be. I think the proper interpretation to be placed on his attitude to the proposed agreement up to and including 1 October 1998, so far as it was represented to Calabrese, was that any proposal would stand or fall depending on the attitude of the Rollonds to it. In the end, I am not satisfied that there was an agreement between CNS on the one hand and Leopardi and the Rollonds on the other. I turn to a more detailed consideration of the events following the receipt by the Rollonds of P6 and P7.
There seems to be no doubt that, within a day or two of the documents having been received, both Barbara Rollond and Phillip Rollond decided they were not interested in the proposals contained in the documents and that they each had communicated that to Leopardi. For his part, Phillip Rollond told Leopardi that, if Calabrese wanted an agreement, he would have to come up with something better than P7. As best I can tell on the evidence, the attitude of the Rollonds was not relayed to Calabrese for some days.
According to Leopardi, he first told Calabrese that the Rollonds were not happy with the contents of P6 and P7 on 21 October 1998 during the course of a discussion at the quarry. He said that, on this occasion, Calabrese produced to him a document, exhibit P8, a forerunner of P7. He said that, at this time, although he had discussed P7 with the Rollonds, he had not seen the document. He said that Calabrese drew his attention to certain matters in P8 about which he, Calabrese, was not happy. He said that he told Calabrese that there were certain things in P7 which were unacceptable and would have to be changed. He said that he told Calabrese that the Rollonds were not happy with the “agreement”. He said that Calabrese said that the documents could be worked on and that they could work it out.
According to Calabrese, the discussion about P8 occurred sometime prior to 21 October 1998 and that, on this occasion, Leopardi said to him “I haven’t seen anything but you’ve got no problem, you can start whenever you want”. According to Calabrese, it was not until 6 November that Leopardi told him that the Rollonds had difficulty signing a document in the form of P7; Leopardi saying that the term was too long. Calabrese said that, on this occasion, Leopardi proposed that the term be for one year followed by a longer period if everything went all right. He said that Leopardi said that it was “totally up to (him)”, and that he could guarantee that when one year had gone, he, Calabrese, would get twenty years.
According to Leopardi, on 21 October 1998, it was clear to him that Calabrese was instructing Guyer as to the drilling being undertaken for the blast and that Calabrese seemed to him to be taking over that procedure. He said that he allowed matters to proceed in that way because Calabrese seem self-assured and seemed to think that matters could be resolved.
On about 20 October 1998, Phillip Rollond was informed that Calabrese had moved some equipment into the quarry. He spoke to Leopardi. He was concerned about Calabrese being there. Leopardi went to the quarry. Calabrese was there and so was his equipment. Leopardi did not speak to Calabrese. He did not know how to handle the situation. He still thought that an arrangement acceptable to all parties could be reached.
On 23 October 1998, Leopardi again attended at the quarry. Calabrese was present. Leopardi did not tell him of the attitude of the Rollonds. He did not think his discussion with the Rollonds had been conclusive and he wanted to speak further to Phillip Rollond about the situation.
On 26 October 1998, Leopardi was at the quarry with Barbara Rollond. She told him that she wanted Calabrese off the property.
On 27 October 1998, Leopardi saw Barbara Rollond and she repeated to him that she did not want Calabrese at the quarry. Leopardi saw Calabrese at the quarry that day, but said nothing to him.
On 30 October 1998, Barbara Rollond was again at the quarry with Leopardi. She told him that she was not interested in reaching any agreement with Calabrese and wanted him off the property.
On 31 October 1998, there was a meeting between all the plaintiffs. Leopardi felt “threatened” at the meeting. He had no opportunity to talk to Phillip Rollond alone.
On 2 November 1998, Leopardi met Phillip Rollond at the quarry. Phillip Rollond told him that he did not want to come to any agreement with Calabrese. At that stage, Leopardi considered there was no hope of “resolving the situation”. He did not know what to do.
On 4 November 1998, Leopardi was at the quarry. Calabrese gave him a statement setting out the amount of slate removed from the quarry during the month of October by CNS and a cheque in relation to it (exhibit P9). Leopardi was embarrassed. He did not know what to do. He said nothing to Calabrese about the attitude of the Rollonds. He still believed something could be worked out and he did not want people to be upset.
According to Leopardi, when he was at the quarry on 6 November 1998, he told Calabrese that the Rollonds were not interested in coming to any agreement with him and that they wanted him to leave the quarry. He said that Calabrese replied that he had a verbal agreement, that a deal had been done and he had authority to be there.
Sometime shortly after 6 November 1998, Leopardi spoke to Phillip Rollond and told him of Calabrese’s attitude and said that he did not know what to do. He was informed that the Rollonds were going to send Calabrese a letter; hence the letter of 18 November.
Sometime after 18 November 1998, Leopardi spoke to Calabrese at the quarry. Calabrese informed him that he had received the letter of 18 November and that he was going to reply. He mentioned that Leopardi’s name did not appear in the letter. Leopardi says that he replied that it made no difference, they were joint owners and he was involved in anything that was done. Leopardi says he told Calabrese that the Rollonds were making trouble and being hard to get on with.
As I have mentioned, Calabrese and other employees of CNS had continued to work at the quarry. Leopardi also worked in the quarry until early this year.
For his part, Calabrese says that, on 6 November 1998, Leopardi did not say to him that the Rollonds wanted him to leave the quarry. He says that, a few days after 6 November 1998, he spoke to Leopardi. He says that Leopardi suggested that the terms of an agreement could be 6 months followed by 20 years. He says that, some days later, Leopardi told him that there was a problem and that his partner did not want to go ahead with any arrangement and that he had been asked to get Calabrese out of the quarry. He says that, about 2 days later, Leopardi again spoke to him and said that he was going to get a letter from his partners telling him to get out of the quarry. He says that, on that occasion, Leopardi said that it was not fair, that he would stand alongside him and that, if anyone asked him, Calabrese, what he was doing in the quarry, he should say he was working for Leopardi.
So far as these conversations between Leopardi and Calabrese are concerned, that is, those conversations which occurred after 9 October 1998, where there is a conflict about the substance and occasions of those conversations, I prefer the evidence of Calabrese. I have reached that conclusion taking into account the impression each made on me in the witness box against the background of the other material relating to this period. On these matters, I find the evidence of Calabrese more reliable.
All this means that the first time Calabrese became aware there was a problem with the Rollonds entering into any arrangement with CNS would have been 6 November 1998. It is true that, prior to that time, Calabrese and Leopardi had each expressed some concern about the documentation emanating from Mr Bungey, but, as I see it, the first time Calabrese was put on notice that there was a problem with the Rollonds was 6 November 1998; and even then Leopardi was still providing Calabrese with hope that agreement could be reached. It was not until some days after 6 November 1998, sometime between then and 18 November, that Leopardi, for the first time, told Calabrese that the Rollonds did not want to proceed any further with the matter and that he was to leave the quarry.
As an alternative to the proposition that, on the evidence, there was an agreement between CNS on the one hand and Leopardi and the Rollonds on the other, a proposition which I have not accepted, Mr Heywood-Smith, for the defendants, submitted that exhibit P7 communicated an offer on the part of CNS to the plaintiffs which the plaintiffs, by their conduct after the receipt thereof, accepted. I do not accept that submission. It is time to consider the issue of Leopardi’s authority to act as an agent for the Rollands.
I think there is no doubt that Leopardi had actual authority to act on behalf of the Rollonds in relation to the negotiations with CNS. The real question is the extent of that authority. I am satisfied, and find, that Leopardi had the actual authority of the Rollonds for the purpose of obtaining a proposal from CNS for the removal of stone from the quarry by it, but I think that was the extent of it. There is nothing before me which indicates to the contrary. The next matter is whether Leopardi had apparent or ostensible authority to act on the Rollonds behalf beyond that. I think it has not been established that he did.
The Rollonds and Leopardi were not partners in the operation of the quarry. Calabrese had never met the Rollonds nor had he had any previous dealings with them. Leopardi, as I have said, informed Calabrese on 18 September 1998 that any proposal put forward by Calabrese for the quarrying of stone by CNS would have to be approved by the Rollonds. At all relevant times, Calabrese understood that the Rollonds, or one or other of them, owned the quarry together with Leopardi. I think the position is not altered by the fact that the mining permit describes Leopardi as the operator of the mine. I think the proper interpretation to be put on Leopardi’s position, so far as the Rollonds and CNS were concerned, was that he was no more than a conduit for the purpose of communications between them.
In my view, seen against the background of my finding that, on 18 September 1998, Calabrese was put on notice that any proposal would have to be approved by the Rollonds, nothing was thereafter done by the Rollonds which indicated acceptance of any offer. It is true that Leopardi made some soothing noises about what the Rollonds might be prepared to do, but, in my opinion, what Leopardi said was no more than that; and what he said fell short of indicating an acceptance by the Rollonds of any offer. It is also true that, on the facts as I have found them, CNS, through Calabrese, operated at the quarry without any suggestion or warning that it was not permitted to do so until sometime between 6 November and 18 November 1998 when the plaintiffs knew it was operating and should reasonably have inferred that CNS, through Calabrese, might have considered it had some right to be so operating; but, once again, seen against the background of Calabrese’s knowledge that the acceptance by the plaintiffs of any proposal by CNS was subject to what the Rollonds might say about it, I am not satisfied that the commencement of operations by CNS at the quarry and the continuation thereof, apparently in accordance with it’s proposal, amounted to conduct which, in the circumstances, indicated acceptance of any proposal by CNS. The prudent thing for CNS to have done would have been to make contact with the Rollonds. Clearly, Calabrese was keen to get access to stone from the quarry. His keenness might have lead him to act in a less than prudent manner. Whether the events after 9 November 1998 give rise to any other right in CNS is another matter.
Section 56 of the Fair Trading Act , 1987 provides as follows:-
’56 (1) A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’.
The defendants contend that the plaintiffs engaged in misleading or deceptive conduct or conduct that was likely to mislead in breach of that section. Although the defendants allege misleading or deceptive conduct, they really rely on misleading conduct; the words “misleading” and “deceptive” not being synonymous.
Whether conduct is misleading is a question of fact to be determined in the light of all relevant facts and circumstances. The conduct can be express or by silence. No question of intent arises.
I am not satisfied that the conduct of the Rollonds, or one or other of them, was misleading. For the reasons I have already mentioned, Leopardi did not have any actual or apparent authority to conduct any negotiations with the defendants as their agent. Consequently, in the consideration of whether their conduct was misleading, their actions, or lack of them, alone must be examined. After the Rollonds received P7, they did nothing so far as CNS was concerned. Upon becoming aware that the defendants had moved on to the quarry and begun operations, they asked Leopardi to inform Calabrese that work must cease and that all equipment and employees must leave the quarry and, when that seemed to have no effect, they instructed their solicitors to take steps to have the defendants removed.
I think the same thing cannot be said of Leopardi. I think the proper interpretation to be placed on his conduct after the receipt of P7, as I have found it to be, is that it was misleading: notwithstanding that he knew the attitude of the Rollonds soon after P7 was received by them, that is, that they did not propose to enter into a contract with CNS, he represented to Calabrese in the conversations which I have mentioned that CNS would be permitted to mine the quarry and, having encouraged CNS to begin work, he did nothing thereafter to dissuade it from doing so; rather, he was prepared to facilitate CNS being there and operating in the quarry; and this position continued until 18 November.
Section 84(1) of the Fair Trading Act provides as follows:-
“84 (1) A person who suffers loss or damage by conduct of another in contravention of a provision of Part X (other than section 57) may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.”
I am satisfied, and find, that the defendants CNS, through Calabrese, relied on the misleading conduct of Leopardi. It is true that Calabrese, at the relevant time, held a firm view as to whether an agreement enabling CNS to work the quarry existed, but I think if Leopardi had not made the representations which constitute the misleading conduct, but, rather, had informed Calabrese as to the true position so far as the Rollonds were concerned, Calabrese probably would not have embarked on the activity in the quarry from 21 October 1998.
It is not difficult to have some sympathy for Leopardi in the situation in which he found himself. It was a situation where, on either side of him, he had assertive people pursuing their interests and he really did not know how to handle the situation.
So far as the plaintiffs are concerned, they are entitled to an order that the defendants vacate the quarry and that an account and enquiry be made as to the stone extracted by the defendants from the quarry since 21 October 1998. I shall hear counsel as to the form of such orders.
CNS is entitled to an order against Leopardi in respect of any loss or damage it has suffered because of his misleading conduct. I shall hear the parties further in relation thereto and as to the quantum of any such loss or damage and as to any order or orders which should be made in respect thereof.
I shall also hear counsel as to costs.

[1999] SADC 56

19 April 1999