McCasker v Omad (NT) Pty Ltd
[2023] NTSC 1
•9 January 2023
CITATION:McCasker v Omad (NT) Pty Ltd [2023] NTSC 1
PARTIES:RAYMOND HENRY MCCASKER
v
OMAD (NT) PTY LTD
(ACN 128 898 135)
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:2022-02046-SC
DELIVERED: 9 January 2023
HEARING DATE: 18 November 2022
JUDGMENT OF: Huntingford A/AsJ
CATCHWORDS:
Practice and procedure - Application for summary judgment - Contract - Construction of clause in lease - Whether appropriate case for summary disposal – complex legal argument – application dismissed
Federal Court of Australia Act 1976 (Cth) s 31A
Gaming Machine Act 1995 (NT) s 37C
Supreme Court Amendment (Miscellaneous) Rules 2018 (NT)
Supreme Court Rules 1987 (NT) O 22, 24, 47Australian & New Zealand Banking Group v David (1991) 1 NTLR 93
Australian Securities and Investment Commission v Cassimatis [2013] FCA 641
Civil & Civic Pty Ltd v Pioneer Concrete (NT) Pty Ltd (1991) 1 NTLR 43
Cole Sopov v Kane Constructions Pty Ltd [2007] VSCA 257
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
Spencer v The Commonwealth (2010) 241 CLR 118
Sportsbet Pty Ltd v Moraitis [2010] NTSC 24REPRESENTATION:
Counsel:
Plaintiff:C Ford
Defendant:A Wyvill SC
Solicitors:
Plaintiff:De Silva Hebron
Defendant:Tsoukalis Lawyers
Judgment category classification: B
Judgment ID Number: Hun2301
Number of pages: 19
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINMcCasker v Omad (NT) Pty Ltd [2023] NTSC 1
No. 2022-02046-SC
BETWEEN:
RAYMOND HENRY MCCASKER
Plaintiff
AND:
OMAD (NT) PTY LTD
(ACN 128 898 135)
Defendant
CORAM: HUNTINGFORD A/AsJ
REASONS FOR JUDGMENT
(Delivered 9 January 2023)
Introduction
This is an application by the plaintiff for summary judgment pursuant to Order 22 of the Supreme Court Rules 1987 (NT) (SCR). The plaintiff seeks declaratory relief in the terms of paragraphs A and E-H, or alternatively B-H of his prayer for relief which was as follows:
A.A declaration that the Plaintiff validly terminated any contract between him and the Defendant to purchase 20 Gaming Machines located at the Premises on or about 30 June 2022 or, alternatively, on 25 August 2022;
B.A declaration that clause 22.5 of the Lease required the Defendant to transfer Gaming Machine Licence GM244 issued under the Gaming Machine Act 1995 (NT) to the Plaintiff on or about 4 May 2022 at no additional cost to the Plaintiff;
C.A declaration that the Defendant breached clause 22.5 of the Lease in failing to transfer Gaming Machine Licence GM244 to the Plaintiff at no additional cost from 4 May 2022 to 20 July 2022 despite demand;
D.A declaration that the market value of the 20 Gaming Machines as part of a business in terms of clause 22.6(c) of the Lease is the market value of the Gaming Machines not including any value of GM244;
E.Damages to be assessed for the Defendant's breach of clauses 22.5 and 22.6 of the Lease and of the contract arising out of the Plaintiffs exercise of the Option;
F.Interest;
G.Costs of and incidental to these proceedings on the indemnity basis or alternatively on the standard basis:
H.Such further or other order as the Court sees fit.
The plaintiff also made application that, in the event that his summary judgment application was unsuccessful, the same questions be determined as preliminary issues in accordance with r 47.04 of the SCR. However, that application was not pressed at the hearing and is therefore not addressed in these reasons.
Background
The plaintiff is the owner of land at 3/30 Virginia Road, Virginia, upon which there is licensed premises known as the “Virginia Tavern”. In 2006 the plaintiff leased the premises to Solloc Pty Ltd (Solloc) which operated the tavern. At the time of the lease the plaintiff held a liquor licence which was transferred to Solloc, but there was no gaming machine licence in relation to the premises.
In 2008 Solloc sold the tavern business to the defendant. At that time, Solloc held a gaming machine licence, in accordance with the Gaming Machine Act 1995 (NT), authorising the operation of 10 gaming machines at the premises. All of Solloc’s interest in the business including the lease and the plant and equipment (including gaming machines), together with the liquor and gaming machine licences, was transferred to the defendant as part of the sale.[1]
The lease was extended at various times until it terminated by efflux of time on 3 May 2022. At termination, the defendant held a gaming licence authorising the operation of 20 gaming machines at the premises.
On or about 2 December 2021 the plaintiff “elected”, in accordance with the lease, to purchase the plant and equipment and stock-in-trade of the defendant.[2] When the defendant handed the premises back to the plaintiff on 4 May 2022, all of the relevant plant and equipment, including the 20 gaming machines nominated in accordance with the licence, remained on the premises. The parties have been unable to agree on a price for the plant and equipment, including the gaming machines. The defendant has received no payment in relation to any of the plant and equipment.
The main dispute in this proceeding concerns whether the plaintiff is now required to purchase the gaming machines, and, if so, at what price. There is also a dispute as to the price of the plant and equipment other than the gaming machines, although the quantum of that dispute is relatively small.
The key clauses of the lease are:
22.5 Licenses and Permits
The Tenant will at the expiration or sooner determination of the Lease do all acts and things necessary to enable the Landlord or any person authorised by the Landlord to obtain the renewal of the Licence and any other licence or permit or a new Licence or any other new licence or permit the transfer of the Licence or any other licence or permit then existing and in force to any person or corporation nominated by the Landlord to enable the Business to continue uninterrupted at the Premises.
22.6 Sale of Chattels
(a)Upon termination of this lease by expiry of the term or for any other reason the Landlord may elect by notice in writing to the Tenant to purchase the stock-in-trade and plant and equipment of the Tenant in the Premises and used for the Business. The election may be made at any time prior to the termination of this Lease.
(b)Upon the election being made by the Landlord an inventory of the good and saleable stock-in-trade and the plant and equipment in a condition for use in the Business will be made by the Landlord and Tenant.
(c)The sale price of the stock-in-trade will be the landed cost price and the sale price of the plant and equipment will be market value for sale as part of a business.
(d)The sale price less any moneys owed by the Tenant to the Landlord under the terms of the Lease will be paid to the Tenant on the day which is 14 days after the sale price has been agreed or otherwise determined in exchange for possession and evidence that the stock-in-trade and plant and equipment are owned by the Tenant free from encumbrances.
(e)If any dispute arises as to the completion of the inventory or the sale price of the stock-in-trade and plant and equipment the dispute will be determined by a person acting as an expert and not as an arbitrator to be appointed by the President for the time being or next most senior officer available of the Law Society Northern Territory on the application of either Party.
The terms “Licence” and “Business” are defined in the lease and those definitions are also relevant.
The proceeding
In his statement of claim, the plaintiff alleges that he exercised an option in the lease which brought into being a new contract to purchase the plant and equipment, on the terms in the lease in particular clause 22.6. The plaintiff further alleges that the defendant breached (or repudiated) that contract, giving rise to a right to the plaintiff to terminate. The plaintiff says that on either 30 June 2022 or 26 August 2022, he terminated or alternatively accepted the defendant’s repudiation of the contract to purchase the gaming machines, but not the other equipment.[3] As a result, the plaintiff says that he is not obliged to purchase the gaming machines.
In the alternative, the plaintiff says that, if the contract to purchase the gaming machines remains on foot, he is only obliged to pay to the defendant the value of the gaming machines as chattels, excluding the value of the licence which authorises their operation.
The defendant resists the plaintiff’s claim and sues on a counterclaim. The defendant says that there was no separate contract for the purchase of the plant and equipment. Rather, the plaintiff made an election under the terms of the lease when he chose to purchase the plant and equipment and, having made that election, it is now too late to change his mind. The defendant further alleges that, in any event, it neither breached nor repudiated the contract for purchase of the gaming machines, and that the value of the gaming machines includes their value as authorised machines operating under the gaming machine licence. In its counterclaim, the defendant seeks payment for the plant and equipment, including the gaming machines, in the sum of $1,217,000, together with interest and costs.
Summary judgment – legal principles
With effect from 14 March 2018,[4] rules 22.01 and 22.02 of the SCR were replaced with a new r 22.01 which introduced the “no reasonable prospect of success” test for applications for summary judgment. Rule 22.01(3) makes it clear that a claim or defence need not be “hopeless or bound to fail” to have no reasonable prospect of success.
Following the 2018 amendments, rules 22.01(1)-(3) and (5) of the SCR are in the same terms as s 31A(1)-(4) of the Federal Court of Australia Act 1976 (Cth).[5] The High Court considered the “no reasonable prospects” test in s 31A in Spencer v The Commonwealth.[6] The introduction of s 31A of the Federal Court Act has been said to lower or “soften” the test for summary judgment and to have “set a different inquiry” compared with earlier regimes.[7]
As to the process and approach in the Federal Court, Reeves J said in Australian Securities and Investment Commission v Cassimatis:
…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached.[8]
The High Court in Spencer emphasised that the power to grant summary judgment is “not to be exercised lightly” and should be “attended with great caution”.[9]
Rules 22.03 to 22.06 of the SCR describe the procedural and evidentiary requirements on an application for summary judgment. These rules were not significantly amended in 2018.[10] The operation of rules 22.03 – 22.06 was described by Kearney J in Australia & New Zealand Banking Group v David.[11]
The applicant bears the legal burden of establishing that the respondent has no reasonable prospect of successfully defending the claim. However, once the applicant has established a good cause of action, a persuasive or evidential burden falls upon the respondent to show cause. Rule 22.06(1)(b) requires that the respondent show cause by satisfying the Court that “in respect of that claim or part a question ought to be tried or that there ought for some other reason be a trial of that claim or part”.[12]
The principles applying to the procedural and evidential parts of Order 22 were described by Southwood J in Sportsbet Pty Ltd v Moriaitis as follows:[13]
(1)Unless the plaintiff makes a proper affidavit the defendant is not required to answer the application for judgment.
(2)The court will give the plaintiff judgment unless the defendant shows cause against the application to the satisfaction of the Court. Cause may be shown by affidavit or otherwise.
(3)The Court will normally require an affidavit by or on behalf of a defendant before a defendant will be granted leave to defend. The defendant is required to use such diligence as is reasonable in the circumstances to put before the Court in a summary form all of the evidence relied on by the defendant in defence of the plaintiff’s claim.
(4)The affidavit material relied upon by a defendant may contain statements of fact based on information and belief provided the source of the evidence is identified and the grounds of belief are set out. A defendant may also obtain leave to defend if the defendant tenders evidence which, though not evidence of the facts, shows such evidence exists and will be available at the trial.
(5)A defendant should condescend into particulars. The evidence of the defendant must deal specifically with the facts relied upon by the plaintiff in support of its application. The affidavit of the defendant should state clearly and concisely what facts are relied on as supporting the defence.
(6)The defendant must point to some material, legal or factual, that provides an arguable response to the claim and not leave it to the judicial officer hearing the application to trawl through the material to find an answer to the plaintiff’s claim.
(7)The evidence of the defendant should show that there is a real case to be investigated either on the facts or in law.
(8)A defendant will be granted leave to defend if there are facts which, if true, would constitute a defence to the plaintiff’s claim. The Court is reluctant to try a case on affidavit where there are facts in dispute.
(9)An important issue is whether the defendant’s account of the facts has sufficient prima facie plausibility to merit further investigation. [footnotes omitted]
A decision about whether to grant or refuse summary judgment involves the exercise of a discretion.[14]
The evidence
In support of his application for summary judgment the plaintiff relies upon the affidavits of David De Silva promised 16 August, 23 September, 5 October and 14 November 2022. Taken together, the affidavits satisfy the requirements of r 22.03(1).
The defendant relies upon the affidavits of Damian Paul O’Brien made 20 October 2022, Anthony John West made 20 October 2022 and John Tsoukalis made 7 November 2022. I am satisfied that the affidavit material is of the kind required by r 24.04.
From the affidavit material it appears that there is little dispute between the parties as to the broad facts. At the heart of the proceeding is a dispute about the construction of the terms of the lease against the background of the Gaming Machine Act. This is an argument of some complexity. Additionally, the proceeding is made somewhat more complicated by the plaintiff’s claim that he is not required to proceed with the gaming machine contract at all.
The argument about the purchase of the gaming machines
The plaintiff argues that he was entitled to terminate the contract for purchase of the gaming machines because the defendant committed a sufficiently serious breach and/or repudiated the agreement. He says that the defendant’s breaches were, first, that it insisted that the price of the gaming machines included the costs of the gaming machine licence and, second, that it threatened to refer the valuation of the machines to expert determination under clause 22.6(e) of the lease. The plaintiff argues that this was plainly a breach or repudiation, because the plaintiff had not opted to purchase the licence and because clause 22.5 required the defendant to transfer the licence freely to the plaintiff therefore excluding the value of the licence from expert determination under clause 22.6(e).[15] The plaintiff submits that the breaches were sufficiently serious to justify termination as they went to the root of the gaming machine contract.[16]
The third breach relied upon by the plaintiff is the alleged refusal to transfer the gaming machine licence freely as required by clause 22.5. Again, the plaintiff alleges that this is fundamental to the gaming machine contract because it affects the price of the machines and because it evinced an intention by the defendant not to be bound.[17]
The plaintiff says that by letter from his solicitors dated 30 June 2022 he terminated the gaming machine contract.[18] There is no dispute that the letter was sent, or that it stated that the plaintiff no longer wished to purchase the gaming machines. The letter does not mention repudiation or breach of contract. The plaintiff’s statement of claim says that the gaming machine contract was terminated on either 30 June 2022 or 26 August 2022. There is no evidence about what happened on the later date.
The defendant says that the plaintiff is obliged to purchase the gaming machines. First, it argues that when the plaintiff chose to purchase the plant and equipment it did not exercise an option but made an election under the terms of the lease. The consequence of this is said to be that, having made an election between two inconsistent rights, to purchase or not to purchase, the plaintiff cannot now change his mind.
Further, the defendant argues that, because it acted to its detriment by leaving all the plant and equipment including the gaming machines at the premises, on the basis that the plaintiff became the legal owner in accordance with the terms of the lease, an estoppel by convention arises which prevents the plaintiff from refusing to proceed with the purchase.
The defendant’s above propositions are arguable. However, even if the plaintiff is right, and a contract arose which could be terminated in relation to the gaming machines alone and no estoppel arose, the defendant’s case is that it has not breached or repudiated the gaming machine contract.
In argument, counsel for the plaintiff explained that the plaintiff’s position is that the defendant’s insistence that the value of the gaming machines included the value of their licence, and its insistence upon referral of the dispute about the value of the gaming machines to expert determination, amount to anticipatory breaches.[19]
Whether the defendant’s interpretation of the contract was correct is a question of law involving the construction of the relevant terms of the lease. The construction questions are more complex than would otherwise be the case because of the provisions of the Gaming Machine Act, which, among other things, strictly regulates who can own or possess gaming machines, and how they can be sold or disposed of. The defendant argues that because the sale price of the plant and equipment in clause 22.6(c) is stated to be the “market value for sale as part of a business” and the machines can only be owned when authorised in accordance with a licence, then the value must include the value of the licence. A number of potential questions flow from this which were not (fully) argued in this application including: whether the licence and the authorising of gaming machines are separate; is a licence capable of being property in the context of the regulatory scheme in the Northern Territory; and how to determine the value of a licence. Counsel for the defendant submitted that the questions in dispute in this case are not settled. I think there is some force in that submission.
As noted above, the resolution of a question of law, even a complex one, can be appropriate on summary judgment. However, the construction of the terms of this contract are not straightforward. The approach to construction of commercial contracts is objective, but may require consideration of what a reasonable business person in the circumstances would have understood the clauses to mean.[20] Surrounding circumstances can be relevant to that inquiry.[21] To attempt to resolve this question on a summary judgment application, without the benefit of evidence, or full submissions, therefore carries a significant risk of injustice.
Even if the defendant’s interpretation of the contract was incorrect, it does not automatically follow that the defendant has repudiated the gaming machine contract. The question of whether a party has acted in a way which shows an intention not to be bound is one of fact. Surrounding circumstances can be relevant.
The defendant’s position as to interpretation of the contract is set out in its solicitor’s letters of 27 April 2022 and 26 June 2022.[22] The latter was in response to a detailed letter from the plaintiff’s solicitors dated 10 June 2022 stating their view of the legal effect of the relevant terms of the lease, and the inappropriateness of expert determination to resolve that issue.[23]
The letter stating that the plaintiff did not want to purchase the gaming machines was sent on 30 June 2022,[24] four days after the defendant’s solicitor’s letter of 26 June 2022. Each of the other references to the contested meaning of the contract and the referral to expert determination was made after the plaintiff’s purported termination on 30 June 2022. I note that the plaintiff says that that only proves he was right to terminate. I also note this all occurred in circumstances where the plaintiff was in possession of all of the plant and equipment and there was (and is) an ongoing dispute as to the value of those chattels other than the gaming machines. Further, it is not disputed that after the plaintiff commenced proceedings, the defendant agreed to have the interpretation question, and all other disputes, resolved as part of this proceeding.[25]
Insistence upon an interpretation of a contract which is incorrect may, but does not always, evince an intention not to be bound.[26] Neither a genuine belief in the correctness of a position, nor the fact that it is founded upon legal advice, will be relevant.[27] The conduct of the impugned party must be considered. Where a party is, objectively, engaging in a genuine dispute with the other party about the true construction of a contract, it is less likely that an inference of repudiation will be drawn.[28] Whether the defendant has acted bona fide in relation to the dispute will not be determinative because the test is objective, but it can be a relevant circumstance.[29]
The plaintiff also states that he was entitled to terminate the contract for actual breach because the defendant failed to transfer the gaming licence to him immediately upon termination of the lease.[30] It is not disputed that the gaming licence transfer document was prepared by the defendant and sent to the plaintiff’s solicitors on or about 20 July 2022.[31] Nor is it disputed that the liquor licence and the gaming machine licence (without nomination of the particular machines in dispute) were transferred to the plaintiff on 10 August 2022, having been lodged with the relevant authority on or about 29 July 2022.[32] The form for transfer of the liquor licence, signed by the defendant, was delivered to the plaintiff on or about 27 April 2022 and lodged with the authority some time after that.[33] It is only possible to transfer a gaming machine licence to a person who also holds, or has applied for transfer of, a liquor licence in relation to the relevant premises.[34]
The defendant denies that it was in breach for failure to transfer the gaming machine licence promptly and says that it was ready, willing and able to transfer the licence from the time of termination of the lease. It points to its solicitors’ letters of 27 April 2022, 8 June 2022 and 26 June 2022, which include statements said to support that inference.[35]
Whether the delay in this case is such to constitute breach of contract amounting to repudiation on the part of the defendant, will involve questions of fact and law. It is possible that the evidence at trial may reveal additional details which give important context. The drawing of inferences as to the conduct of the defendant based upon the delay in transfer of the gaming licence, is not something I would be prepared to do on the evidence available in this application.
For the above reasons, I cannot conclude that the defendant has no reasonable prospect of successfully defending the plaintiff’s assertion that it has no obligation to proceed with the gaming machine contract. I am therefore not satisfied that the defendant has no reasonable prospect of successfully defending that part of the proceeding, even if its other arguments do not succeed (upon which I express no view), and accordingly the defendant should have unconditional leave to defend.
The alternate basis for summary judgment
In view of my conclusion that the plaintiff has not shown that the defendant has no reasonable prospect of success in defending the action for an injunction in terms of paragraph A of the prayer for relief, it is clear that the case must proceed to trial. Until the question of whether the plaintiff is required to purchase the gaming machines is resolved, there is no utility in determining the further questions in paragraphs B and D of the prayer for relief, which are concerned with how the gaming machines should be valued.
The question at paragraph C of the prayer for relief relates to the same breach of contract allegation discussed at [36] to [38] above. It is inappropriate to determine on a summary judgment application for the reasons given there.
Additional discretionary factors
The defendant argued that the plaintiff was estopped from seeking summary judgment because such a course is inconsistent with a procedural agreement reached between the parties which resulted in consent orders made on 5 September 2022. The orders made on that date set the matter on course for a trial in March 2023. The defendant says that in agreeing to those orders it gave up a right to have the sale price payable by the plaintiff for the plant and equipment determined by an expert in accordance with clause 22.6(e) of the lease.
The defendant points out that the basis of the agreement leading to the procedural order was that all issues would be tried together. This application by the plaintiff cannot resolve all issues. The question of the value of the plant and equipment other than the gaming machines, which was clearly susceptible to expert determination in accordance with the lease, will not be resolved. Further, it was common ground that if the plaintiff were successful, a further hearing would be necessary in order to determine any damages due to the plaintiff, in relation to which there is no evidence in this application.
I am not convinced that the estoppel argued by the defendant arises on these facts. An application for summary judgment can be made at any stage in a proceeding.[36] As the plaintiff’s counsel pointed out in argument, the orders of 5 September 2022 were made before the defence and counterclaim was filed and served.[37] There was no evidence as to any specific agreement not to bring a summary judgment application.
However, the stage in a proceeding at which a summary judgment application is made is a relevant consideration. The proceeding is scheduled for hearing in March 2023, with an estimate of two days duration, and there is no suggestion that the parties would not be ready to proceed at that time. As a practical matter, this is not a case where there is likely to be any significant saving of time or resources in having the matter determined summarily, irrespective of the outcome. In fact, the reverse is more likely to be true.
On their own, these factors would be unlikely to provide sufficient reason for rejection of an otherwise suitable case for summary judgment. However, when taken together with my above findings in this proceeding, they are additional discretionary grounds for refusal of the plaintiff’s application, particularly in relation to the alternative basis for declaratory relief in terms of paragraphs B, C and D of the prayer for relief.
Conclusion
The plaintiff’s application for summary judgment is dismissed.
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[1]Subject to approval of the Director-General of Licensing. In relation to the gaming machine licence, the defendant applied for and received a new licence as a transfer was not possible at that time.
[2]“Elect” is the term used in the lease. There is a dispute as to whether the plaintiff made an election under the lease or exercised an option. Subsequently, the parties agreed that the stock-in-trade would not be included in the purchase. There is no dispute about that.
[3]Statement of claim, paragraph [29].
[4] Supreme Court Amendment (Miscellaneous) Rules 2018 (NT).
[5] Rule 22.01(4) of the SCR does not appear in the Commonwealth legislation.
[6] Spencer v The Commonwealth (2010) 241 CLR 118. There were two joint judgments, that of French CJ and Gummow J and of Hayne, Crennan, Kiefel and Bell JJ. Heydon J, while in agreement with both joint judgments as to the result in that case, did not consider it necessary to address s 31A.
[7] Spencer v The Commonwealth (2010) 241 CLR 118, 138-141, [50]-[60] (Hayne, Crennan, Kiefel and Bell JJ); see also Australian Securities and Investment Commission v Cassimatis [2013] FCA 641, [46] (Reeves J). As explained by Reeves J in Cassimatis at [19], the separate joint judgments in Spencer take different views as to the relevance of earlier decisions, in particular Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, which were decided upon earlier forms of words. Reeves J noted that the differences are “quite confined”.
[8][2013] FCA 641, [46].
[9] Spencer v The Commonwealth (2010) 241 CLR 118, 131 [24] (French CJ and Gummow J), 141 [60] (Hayne, Crennan, Kiefel and Bell JJ).
[10] The provisions remain almost identical to rr 22.03-22.06 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).
[11] ANZ v David (1991) 1 NTLR 93, 95–96, cited with approval in Territory Loans Management v Turner (1992) 110 FLR 341, 348.
[12]Supreme Court Rules 1987 (NT) r 22.06(1)(b) (‘SCR’); ANZ v David, (n 11) 95.
[13] Sportsbet Pty Ltd v Moraitis [2010] NTSC 24, [12], cited with approval in Proud v Arkell [2019] NTSC 35, [14].
[14] Civil & Civic Pty Ltd v Pioneer Concrete (NT) Pty Ltd (1991) 1 NTLR 43, 50–51; see also ASIC v Cassimatis (n 8) 686 [50].
[15] Plaintiff’s written submissions 7 November 2022, at [9] and [12].
[16] Above, at [10].
[17] Above n 15, at [11] and [12].
[18] Above n 15, [13].
[19] Transcript 18/11/22 p 33.
[20] Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640, 656 [35] (French CJ, Hayne, Crennan and Kiefel JJ).
[21] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, 117 [46]–[51] (French CJ, Nettle and Gordon JJ).
[22] Annexures DDS 6 and DDS 7 affidavit of David De Silva 16/8/22.
[23]Annexure DDS 8 affidavit of David De Silva 16/8/22.
[24]Annexure DDS 9, affidavit David De Silva 16/8/22.
[25] Annexures JT 1 affidavit of John Tsoukalis 7 November 2022.
[26]DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423, 431-2.
[27] Cole Sopov v Kane Constructions Pty Ltd [2007] VSCA 257, [15]-[16] (Maxwell P and Kellam JA).
[28] Ibid [15].
[29] J W Carter, Carter’s Breach of Contract (LexisNexis, 2nd ed, 2018) 369-371 [8-26].
[30] Transcript 18/11/22 p 30.
[31] Annexures DDS 11, affidavit of David De Silva 16 August 2022.
[32]Annexure DDS 14, affidavit David De Silva 16 August 2022.
[33]Affidavit Damian O’Brien 20 October 2022, [37].
[34] Gaming Machine Act 1995 (NT) s 37C.
[35] Annexures DDS 6 and 8 of affidavit of David De Silva of 16/8/22 and annexure 16 of affidavit of Damian O’Brien of 20 October 2022.
[36] SCR (n 12) r 22.01(4).
[37] Transcript 18/11/2022 p 59.
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