Mafubi Pty Ltd v Westfield Ltd

4 -

IN THE FEDERAL COURT	OF AUSTRALIA	)
)

NEW SOUTH W E S DISTRICT REGISTRY	)	No. G 93 of 1985
1
GENERAL DIVISION	)

BETPEEN:

MAFWBI FTY. LIMITED

Applicant

PJID :

WESTFIELD LIMITED

Respondent

29 JULY 1985

REASONS FOR JUDGMENT

LOCKHART J.

This case was specially fixed for hearing to commence today

by consent of the parties. When the matter was called

on for hearing

this morning counsel for the applicant moved on

a notice of motion

filed on 25 July 1985	seeking, so far as presently relevant, orders
that:

The appli'cant

have

leave

join

respondent

the

proceedings	Foto	Island	(NSW)	Pty.	Limited	and	Ephraim
Landes ;

2 . The applicant have leave to amend the statement of claim and application;

3 .

The date for hearing these proceedings on

July

1985 be

vacated; and

2 .

4 .

"he evidence of any witness proposed

-go be called on behalf

of	the applicant at the hearing who is unwilling to give

evidence by affidavit may be glven orally in court.

It is common ground that, if the application to amend the

statement of claim and the application is acceded to, the hearing

could not, for all practical purposes, proceed today.

"he order that is sought in relation to the calling of

witnesses who may be unwilling to give evidence by affidavit

is,

perhaps, unnecessary. It arises from the form of the orders made by

consent by this Court on 30 May 1985 which were in quite usual form.

The intent of those orders, as

I read them, is that the evidence

the witnesses on both sides

in this case should

.be primarily by

affidavit, subject, of course, to cross-examination. It was clearly

not the intent of that order to exclude the right of

a party to call

witness to give viva voce evidence

in chief because plainly there are

circumstances when witnesses will not volunteer affidavits and they

cannot, of course, be forced to swear them. In these situations, the

only course that can be taken for all practical purposes is to have

the witnesses give their evidence in chief from the witness box.

But

even -if the order sought is not strictly necessary it is not opposed. to simply not make the order.

turn next

'CD

the application to amend the statement of

claim.

The case was commenced by the filing of

an application on 1

.--

May 1985 and a statement of claim

was filed that same day.

In essence

that last mentioned document alleges that a shop in the Westfield

Shoppingtown Hurstville was leased by the respondent to the applicant

by a registered lease dated

5 December 1980.

This lease was for a

term of five years, to expire on

7 September 1985. The statement of

claim then asserts that prior

to the execution of the lease, which

identified as being in

about July

1980, the respondent by its

servants or

agent represented to the applicant that subject to the

applicant paying the rent for the premises the applicant would	be
granted another lease for a term of five years.

Then it is aid

that,

acting

the

faith

the

representation, the applicant executed the lease and spent substantial

sums of money on fitting out the shop. Other allegptions are then

made in the statement of claim to which

I need not refer: but it is

said that in all the circumstances the respondent

has engaged in

conduct that is misleading

or deceptive within the meaning of

S. 52 of

the Trade Practices Act

1974

and has made false

misleading

statements in contravention of

S. 53(g) of the Trade Practices Act and

has made false

or misleading statements in contravention of para.

53A(l)(b) of that Act. Wide

relief is sought, including orders under

S .

87.

The statement of claim which the applicant now seeks to file

raises a case that is, in my opinion, materially different from the

case as presently pleaded. Indeed it is not disputed that it raises

very different issues. What is said in 'essence by counsel

for the

4 .

.--

applicant is that, notwithstanding the difference between the case

it is and the case that is sought to be pleaded, there are common

elements of law and of fact and that much of the evidence that would

be given to support the case as presently pleaded would also be given

to support the proposed

new case.

The case that it is proposed to make is, in substance, that

prior to the execution of the lease in 1980 from the respondent to the

applicant, the respondent by its servants or agent represented to the

applicant that:

(a)

the respondent then had and for

a number of years had had

policy or practice that it would not include in any lease of

a retail specialty shop in any of its shopping centres

option to renew the lease but would, upon expiry of

the

lease, renew the lease for

a further term

as a

matter of

course if the lessee had been

a good tenant, had traded well

and had paid rent under the lease on time; and

(b)

if the applicant had been

a good tenant, had traded well and

had paid rent under the lease on time, the respondent would

in accordance with that policy

or practice and as a matter of

course grant to the applicant, if it

so requested, upon

expiry of the lease a new lease of the premises for	a further
5 year term.

It is sought to allege in para. l

of the proposed statement

of claim that each of the representations to which	I have referred was
misleading or deceptive in that:

(a)

the respondent did not have at the time the representations were made and had not had prior thereto any policy or practice to the effect alleged;

(b)

the respondent had at all material times reserved to itself a complete discretion whether or not to renew a lease for a

further

term

regardless

whether

not

the

lessee

thereunder had performed his obligations under the lease; and

(C)

the respondent failed to inform the applicant at the time the representations were made of the discretion to which I have just referred in paragraph (b) and that, if the applicant

performed its obligations under the lease, it could not on

the expiration thereof expect the grant of

a new lease for

further term of

5 years as

a matter of course.

However, the proposed pleading then alleges in essence that

the representations made by the respondent

to the applicant were made

in pursuance of a course of conduct engaged in by the respondent in relation to all shopping centres owned and managed by it throughout Australia prior to andTat the time of the representations to the

applicant wherein the respondent,

knowing that such representations

were false or misleading or deceptive:

...-

(a) made

prospective

lessees

specialty

shop

premises

shopping

centres

owned

managed

the

respondent,

representations to the same or similar effect as those

alleged in paras. 6(a) and (b) of the pleading;

(b)

instructed the servants and agents

of the respondent to make

the representations aforesaid in the course

of negotiations

with prospective lessees of the premises; and

(C)

permitted the servants and agents

the respondent to make

representations

as aforesaid in the course of negotiations

with prospective lessees of the premises in order to induce the prospective lessee to enter into leases 0.f specialty shop

premises within shopping centres owned and managed

by the

respondent which did not contain express options	to renew
upon expiry of the terms granted thereunder.

It is then sought to be alleged in para.

9 that at the time

the respondent made the representations to which

I have referred, it

knew or ought to gave known that the applicant would rely upon their

truth and accuracy in determining whether to enter into the-lease.

The pleading then proceeds to cover matters to which

I need not refer,

except those in relation

to a proposal to join Foto Island

(NSW) Pty.

Limited as a third party.

I shall deal with that later

as a separate

matter.

' L

4 .

In my

opinion the case which is presently propounded by the

applicant

one

where

said

that

the

respondent

made

representation to the applicant from which the respondent has, in the

events pleaded, departed. The case which it is proposed to propound

is a case of the respondent ' falsely representing that it has a policy

in relation to leasing which, in fact, the respondent	at no material
time ever had.

There are affidavits before the Court which supports the case

as presently pleaded and,

so far as I can discern at this stage of the

matter, do not support the case that it is proposed to propound. Long

Innes J. in

v. Norton-Culhane (1928) 28 S.R. (N.S.W.) 302, sald.

at pp. 305-306, in respect of an application under the Equity Rules

1902 of the Supreme Court of

New South Wales

cor a decree on

admissions of fact made by the plaintiff and

a consequent application

for leave to amend the statement of claim:

"Speaking generally I think it

is correct to say

that an application for leave to amend will as a

general

rule

granted

cases

where

the

applicant is not acting male

fide and where it can

be granted

without injustice to the otherjparty."

After reference to certain authorities, his Honour continued:

"But the

rule

is subject to the exception that the

amendment will be refused which will

change the

suit into

a suit of a substantially different

character and raise issues which can be more

conveniently tried in another suit."

r -

In	my opinion the proposed amendment would, if allowed,

fashion

the

present

proceeding

into

one

which

substantially

different in character and raise issues which may be tried more

conveniently in other proceedings between the parties.

I am conscious, of course, of the provisions

of Order 13 rULe

2 of this Court's Rules which are,

as the rule itself states, designed

allow

necessary

amendments

pleadings

for the

purpose of

determining the real questions in issue between the parties and

avoid multiplicity of proceedings.

I am also aware of the fact that

there may be some common elements in the case

presently pleaded

with the case that would exist if the proposed amendments were to	b
allowed.

I turn then to certain other matters bearing on discretion.

The

case

one

which

has

proceeded

fairly

rapidly

from

its

institution to trial. It has been the subject of various directions

by the Court,

so far as I can discern always with consent, and

timetables were laid down by the Court with the consent of the parties

for the filing

of affidavits, pleadings, and carrying out the various

interlocutory processes that are customary in cases of this nature.

Also

is customary, regrettably, the timetables have not been

adhered to but, nevertheless, on 27 June 1985 the trial was fixed to

commence today on the application of both parties. Indeed, on

18 July

1985 the solicitor for the applicant informed the Court that there

should be no bar to the case proceeding toflay.

m a t has happened is,

and counsel for the applicant has frankly informed me, that there

has

4 3

.--

been	a change in fairly recent times. Senior-and junior counsel

appearing for the applicant have, with the benefit of fresh minds,

turned their attention to the case and decided that in the interests

of their client the case should be fashioned substantially differently

to its present form.

The argument has been submitted by counsel for the respondent

that the statement of claim, even if allowed would not be in proper

form, that it has certain internal inconsistencies, and that it lacks

particularity in relation to most material allegations, including

those mentioned in para.

B of the statement of claim.

need not

determine those matters because they would probably be capable of

being cured by 'the applicant. I prefer to rest my decision on other

grounds including the ones to which

I have already adyerted.

I turn, however, to

a different aspect of the matter, namely,

that it is apparent from what has been said from the bar table and

from my examination of the pleadings and other documents to which

have been referred, that the premises the subject of these proceedings

are already the subject of

lease from the respondent to Foto Island

(NSW) Pty.

Limited, which apparently changed its name

to its present

form-from Basid Holdings Pty. Limited. It appears that this lease is

for 5

years to commence immediately upon the expiration of the lease

in suit, that is, on

8 September 1985.

Foto Island (NSW) Pty. Limited

not a

party to the proceeding but it

is a

company which the

applicant seeks to have goined.

. . '

G	.
P

10.

There is no doubt in my mind that substant'ial prejudice would

.--

be sustained by the respondent and by Foto Island

(NSW) Pty. Limited

if the amendments sought were permitted, if only because the parties

have by

their conduct thus far demonstrated the desirability of this

case being disposed of before the lease from the respondent to Foto

Island (N.S.W.)

Pty. Limited commences to operate, and it is obvious

that, if the application before me today succeeds, it will be well

after that date before this litigation concludes.

I am mindful that

notwithstanding what I have said, the issues in the present case and

the rights of appeal that exist may cause this litigation to

unresolved by the dates

7 and 8 September 1985.

Some attempt was made in argument on behalf of the applicant

to suggest that it is not its fault that it comes

so, late in the

day

to seek the proposed amendment

to the pleadings; but I am satisfied,

having heard the argument from counsel for both parties that,

notwithstanding the direction of the Court on

30 May 1985 that the

applicant file all affidavits on which it proposes to rely

on or

before 20 June 1985, those temporal constraints were not met. Indeed,

an affidavit of Mr. B.J. Rowles sworn

on 17 June

1985 was not filed

until 18 July 1985,'some one month after the date fixed. Much of what

is said

in the affidavit of

Mr. Rowles generated

a sheaf of affidavits

from the respondent in response thereto which,

in turn, has a bearing

upon the application for amendment made today by counsel for the

applicant.

11.

therefore decline to grant the

propos'ed application for

leave to amend the statement of claim save insofar	as the matter to
which I am about to turn.

It is sought, as

1 said, by the applicant to loin as

respondent Foto Island (NSA) Pty. Limited and I have already briefly

described the role performed by this company in the relevant events.

On the assumption that the case were to proceed as presently pleaded,

I can see difficulties in the Court hearing the matter without the

presence of that company as

party, and I think the desirable course

is	that that company be joined. Counsel for the respondent has

informed the court that he has instructions to, if necessary, appear

for that company, and

I am conscious of the fact that the defence

filed on

June 1985 pleads in paragraph

that the subject premises

were leased

Basid Holdings Pty. Limited without notice of

any

rights the applicants may claim to have to continued occupation of the

premises.

The lease to Basid Holdings Pty. Limited is

to commence on

8 September 1985 and to subsist for

a term of 5 years.

It seems to me that all parties have had knowledge for some

considerable

timebf

the basic issue in this case relating to the

leasing

to Foto Island

(NSW)

Pty. Limited of the shop premises.

Therefore, I propose to refuse the application for leave to amend the statement of claim, but to allow the applicant to join Foto Island

(NSW) Pty. Limited as a respondent.

I	>	*
0

7 ,.

12.

I should mention now that the applic&t 'seeks also to join

Ephraim Landes as

a respondent. Little has been said about that

application in argument. It seems,

so far as I can glean it from the

material, that Mr. Landes is sought to be joined

as a person involved

in the alleged contravention pursuant

to S . 75B of the Trade Practices

A A .

I am not satisfied at this stage that he is

a person who should

be joined.

In the light of what

I have said

I will invite counsel to

make any further submissions they wish on the future conduct of the

proceeding.

[1985] FCA 497

29 Jul 1985