Paull v Williams

[2005] NSWCA 421

CITATION:	Paull v Williams & Ors [2005] NSWCA 421
HEARING DATE(S):	14 & 15 November 2005
JUDGMENT DATE:	5 December 2005
JUDGMENT OF:	Giles JA at 1; Tobias JA at 41; Bryson JA at 42
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	Hotel restaurant available for lease - plaintiff began conducting restaurant - whether concluded agreement for twelve months lease - claim of agreement to be inferred from conduct - not to be inferred - nor estoppel against denying agreement - whether loss suffered by misleading or deceptive or unconscionable conduct in relation to entry into a twelve months lease - no reliance proved - decion turns on the facts. ND
CASES CITED:	Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; Empirnal Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523; Integrated Computer Service Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110. Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.
PARTIES:	Allan Paull - Appellant Warren Williams - First Respondent Navigrand Pty Ltd - Second Respondent Sandross Pty Ltd - Third Respondent Yenstar Pty Limited (In liquidation) - Fourth Respondent B M Robinson (1972) Pty Ltd - Fifth Respondent Brian Robinson - Sixth Respondent
FILE NUMBER(S):	CA 40370/04
COUNSEL:	A J McQuillen & R Newell - Appellant R J H Darke SC & J M Hennessy - First, Second and Sixth Respondents The appellant did not proceed against the Third, Fourth and Fifth Respondents
SOLICITORS:	L C Muriniti & Associates, Dee Why - Appellant Brophy Bridge & Mirow - First, Second and Sixth Respondents The appellant did not proceed against the Third, Fourth and Fifth Respondents

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1018/02
LOWER COURT JUDICIAL OFFICER:	P R Bell DCJ

CA 40370/04
DC 1018/02

GILES JA
TOBIAS JA
BRYSON JA

Monday, 5 December 2005

ALLAN PAULL v WARREN WILLIAMS & ORS

Judgment

1 GILES JA: The claims in the District Court depended on establishing a concluded agreement for a twelve months lease, alternatively that there was loss suffered by misleading or deceptive or unconscionable conduct in relation to entry into a twelve months lease. The judge held that neither had been established. Many other issues were raised, and the proceedings occupied a remarkable twenty days.

2 For the reasons which follow, in my opinion the challenge on the central questions fails and the appeal should be dismissed.

3 Mr Allan Paull conducted a restaurant at the Excelsior Hotel, Glebe. The business was trading unprofitably. He saw an advertisement published in the Sydney Morning Herald on 10 February 1996. It read -

“ HOTEL restaurant for lease, city CBD location, newly renovated, no ingoings, realistic rental.
Experienced operators only.
Phone [phone] after 9 am.”

4 The hotel was the Metropolitan Hotel in George Street, Sydney. The joint lessees of the hotel were Sandross Pty Ltd, Yenstar Pty Ltd and BM Robinson (1972) Pty Ltd (collectively, the companies), acting in partnership. Mr Bryan Robinson was the licensee, and appears to have controlled the companies’ involvement in the hotel. As at late 1995 there were difficulties between the partners, and Mr Robinson decided to place the lease of the hotel on the market for sale. A fire affecting the operations of the hotel had brought closure of its restaurant, and Mr Robinson wished to have a functioning restaurant to assist in the sale. He was responsible for placement of the advertisement, and for its terms.

5 In response to the advertisement, Mr Paull and his associate Mr Christopher Joyce met Mr Robinson on 14 February 1996. There was conflicting evidence as to what was said and done between them, then and thereafter, and the judge did not take a favourable view of the credit or reliability of any of them. The findings in the following account were not seriously in issue on appeal.

6 There was discussion on 14 February 1996 of entering into an agreement for the operation of the restaurant, but the discussions did not go into detail. On the next day Mr Robinson attended the Excelsior Hotel restaurant, and although the judge did not expressly so find there was common evidence to the effect that he said he was impressed and would tell his partners “you will do well at the Metropolitan”; he said that they should discuss specifics. On 16 February 1996 Mr Robinson contacted Mr Paull, indicated that Mr Paull should start “as soon as possible”, and arranged a meeting for 19 February 1996 at the Brooklyn Hotel, another hotel in which Mr Robinson was interested.

7 At the meeting at the Brooklyn Hotel Mr Robinson was made aware that Mr Paull wanted a lease of the restaurant. Mr Joyce produced a copy of the lease of the Excelsior Hotel restaurant and showed it to Mr Robinson, but did not provide a copy to him. He expressed the desire that a similar arrangement be entered into for the Metropolitan Hotel restaurant.

8 There was no agreement at the Brooklyn Hotel upon rent or duration for Mr Paull’s conduct of the restaurant. It was agreed that Mr Paull would commence conducting the restaurant and would continue for a minimum of four weeks rent free, but with no commitment on either side beyond the four weeks - as demonstrated by Mr Robinson saying “you may not like me and I may not like you”. Mr Joyce said that he would prepare a draft agreement that would set out the basis for the continuing conduct of the restaurant, once rent and duration were agreed. Mr Robinson said he would look at the draft when it was prepared.

9 Mr Paull commenced operating the Metropolitan Hotel restaurant on 26 February 1996, under the name Bistrot Metro. In addressing the hotel staff shortly beforehand, Mr Joyce referred to “taking over” the lease of the restaurant as of the following Monday; on any view, there was no existing lease to be taken over and no agreement on a lease.

10 At about this time, probably early in the four weeks period, Mr Robinson was given a draft agreement. The draft was a modified version of the rather informal lease of the Excelsior Hotel restaurant. It provided for a lease of “a minimum of 12 months. With an option for a further 12 months”. It provided for either rent of an amount per week which was left blank or that Bistrot Metro would pay the wages for the beverage staff in the restaurant. Numbered paragraphs set out “Responsibilities of Bistrot Metro” and “Responsibilities of the Metropolitan Hotel”. Under the heading “Special Conditions – Area for discussion” many other matters were listed, of which examples are the use of a particular credit facility for beverages purchased by restaurant patrons, provision of meals or a discount on meals for staff of the hotel, level of music, and some rather Delphic matters “Room hire charges”, “Food to bars – milk, cream & fruit”, “Linen to bars – teatowels”, and “Coffee”.

11 Mr Robinson did not express acceptance of the draft agreement, but said that he would show it to his lawyers. In fact he did not do so, and the judge found that he never intended to agree to a lease.

12 On or about 5 March 1996 Mr Joyce discussed with Mr Robinson signage for the Metropolitan Hotel restaurant, from which the judge concluded that Mr Robinson was aware that Mr Paull “was ‘settling in’ to the restaurant in more than a very temporary manner”.

13 By mid-March, if not earlier, Mr Paull and Mr Joyce were aware that the lease of the hotel was for sale. There were discussions with Mr Robinson about them taking over the lease of the hotel. At one such discussion, on 12 March 1996, Mr Joyce stressed the need for finalisation of the restaurant agreement, but was put off by Mr Robinson on the basis that taking over the hotel lease would make it unnecessary to finalise a lease of the restaurant. It is evident, although detailed findings were not made, that the judge found that Mr Paull and Mr Joyce nonetheless asked a number of times that the draft agreement be signed.

14 On 23 March 1996 Mr Paull wrote to the proprietor of the Excelsior Hotel, giving notice that he would cease trading at that hotel the next day because the restaurant was trading unprofitably and he had “made the decision not to dig the hole any deeper”; he said that “the Metro has been subsidising the Glebe restaurant for over 4 weeks. Without this Glebe would have been closed a month ago”.

15 In a discussion with Mr Robinson towards the end of March 1996 agreement was reached upon a basis for payment of rent, that it would be by way of payment of the beverage waiting staff, $150 per week for cleaning, payment of the credit commission for beverage and payment of certain staff meals. At this discussion, at which Mr Paull was present, Mr Joyce expressed concern that Mr Paull was “vulnerable” because there was no signed lease agreement.

16 The judge found that as at this time -

· “Mr Joyce was continuing to press for the signing of the lease document because he was aware Mr Paull was ‘vulnerable”,

· negotiations were taking place between the three men concerning Mr Paull buying the hotel lease,

· despite not having receiving [sic] a signed agreement as sought, Mr Paull continued to operate the restaurant,

· Mr Robinson was prevaricating over the signing of the lease, using problems with the Brooklyn Hotel as his excuse, and raising the purchase of the hotel lease as a situation that would absorb the restaurant arrangement.”

17 The judge said -

“During March 1996 there had been three streams of discussion going on – one pressing for the signing a lease document (transcript 6 March 2003, page 485 – Mr Robinson), one relating to the payment of rent, and the third relating to the taking over of the hotel lease. By that time, the staff that had formerly been employed by the Metropolitan Hotel had become staff employed by the Bistrot Metro (transcript 7 March 2003, page 523 – Robinson). However, Mr Robinson did not agree to a twelve-month lease or arrangement during March, but had only committed himself to sending it to his lawyers. Whilst this was evasive action by Mr. Robinson it did not constitute an agreement to a lease for a term of twelve months.”

18 Mr Paull continued to conduct the Metropolitan Hotel restaurant during April 1996. The judge found that he conducted the restaurant “generally in accord with” the agreement which had been provided to Mr Robinson, although not completely in accordance with the basis for payment of rent: for example, the $150 per week for cleaning was not paid.

19 In late April 1996 Mr Joyce asked Mr Robinson if the restaurant agreement had been “organised”, to which Mr Robinson responded by asking, “What about you blokes buying the place?”. In further exchanges Mr Joyce made clear that that was not of interest and said, “We must get this agreement on track and signed”, to which Mr Robinson replied, “My accountant has it and I will get back to you”. By this time Mr Robinson was “well into negotiations with” Mr Warren Williams for the sale of the lease of the hotel to Mr Williams’ company Navigrand Pty Ltd.

20 The pressing for signing the lease document continued until 3 May 1996 . On that day Mr Robinson told Mr Paull that he had sold the hotel. He said to Mr Paull that the purchaser (in fact Mr Williams’ company) “will continue with you on exactly the same basis … they are happy to keep you on … and everything will stay the same”. As I read the judge’s reasons, he did not accept Mr Joyce’s evidence that Mr Robinson agreed that the purchaser would continue “as per our agreement”, but he did accept that Mr Joyce responded, “Now I understand why you have been stalling us, how long has this been on the cards?”

21 The judge found that Mr Williams and his daughter were each a “witness of truth”. The judge accepted that, in a conversation with Mr Paull and Mr Joyce in which they said that they “put a proposal to Brian Robinson”, Mr Williams said he knew “but you never reached any agreement”, and one of them said “Yes, that’s right”.

22 Mr Robinson had not wanted Mr Williams to talk to Mr Paull during the negotiations, and he had not done so. From what Mr Robinson had said to Mr Williams, Mr Williams believed that he could tell Mr Paull to leave because there was no binding agreement. This was congruent with his experience that it was common in the hotel industry for a restaurant operator to walk into and walk out of a restaurant, the equipment being there, rent being low and there being no payment for good will. In late May 1996 Mr Williams told Mr Paull to vacate the restaurant, which he did.

23 The judge stated the conclusions -

“It is clear from these findings that Mr Paull responded to an advertisement for the lease of a hotel restaurant. Mr Robinson was responsible for the placement of the advertisement because he intended to sell the lease of the hotel, and it was beneficial for there to be a visibly operating restaurant on the premises. While Mr Robinson never intended to agree to a lease for a period of time other than the initial four week period, he was prepared to allow the restaurant to continue past the expiration of that period, and in fact did so allow it to continue. Mr Robinson was not only agreeable to the situation, he promoted the prospect of selling the hotel lease to Mr Paull.
Mr Paull wanted a written lease agreement which include a term of twelve months. Without the benefit of such an agreement he went into occupation of the restaurant for a four week period during which he did not have to pay rent. There was no commitment past that four week period, because Mr Robinson had made it clear each may not like the other – the implication being that would bring about the end of Mr Paull’s occupation. At the commencement of the four week period, Mr Robinson was given a copy of a written lease agreement. Although aware Mr Paull wanted the agreement signed, he prevaricated and never signed it, nor did he ever have any intention of signing it.
Mr Robinson did not tell Mr Paull he would not sign the document. Instead he ‘stalled’ (to use Mr Joyce’s word) by referring to a number of matters; difficulty in the sale of the Brooklyn Hotel, referral of the document to a solicitor, and referral of the document to an accountant. The question of rent was the subject of agreement, but Mr Paull acknowledged he was aware his continued occupation, his ‘tenure’, also depended upon proof of performance and the signing of a written agreement. Additionally Mr Paull became involved in the prospect of buying the hotel lease, and Mr Robinson relied upon this to suggest to Mr Paull there would then not be any need for a restaurant lease.
Mr Paull did not withdraw from seeking a written agreement. There was agreement between Mr Paull and Mr Robinson as to what might be called ‘the day to day’ operation of the restaurant and payment of rent. However, Mr Robinson engaged in ‘stalling’, and thus permitted the continuation of the operation of the restaurant. This was to the hotel’s benefit because he was marketing the hotel lease.
Mr Paull was aware of Mr Robinson’s preparedness to sell the hotel lease and his business manager, Mr Joyce – who in many respects is involved in this venture as the Plaintiff’s ‘alter ego’ – was expressing concern over Mr Paull’s ‘vulnerability’ due to the absence of a signed agreement. Mr Paull appreciated that he did not have a concluded agreement as to the term of occupancy, and that is why there was continued pressing for the document to be signed. This emphasises the fact that there was no oral agreement as to the term of occupation, past the original four week moratorium period.
Support for these conclusions is found in the affidavit of Mr Williams sworn 12 June 1996. In paragraph 14 he deposed to a conversation with Mr Paull and Mr Joyce in which ‘they’ said ‘we put a proposal to Brian Robinson’ to which he responded, ‘I know you put a proposal to Brian Robinson but you never reached any agreement’ and ‘one of them said’, ‘Yes, that’s right’. As already stated. I find Mr Williams to be a witness of truth.
Mr Paull had departed from the premises of the Excelsior Hotel on a few days notice, notwithstanding the fact that he asserted he had an agreement which itself provided for the giving of four week’s notice. That finding, together with the evidence of Mr Williams as to the ‘walk in/walk out’ basis upon which hotel restaurants operated, leads to the conclusion that Mr Paull was aware, absent a binding (to him, written) agreement that he did not have the right to operate the restaurant for twelve months.
Mr Paull and Mr Joyce maintain that Mr Robinson specifically agreed to sign the written document headed Agreement to Lease – this evidence is not accepted. Mr Robinson maintains that he specifically stated that he would not sign a lease – this evidence is also not accepted. The Court is more than satisfied that the advertisement was designed to draw in persons interested in taking on a lease of a hotel restaurant that Mr Robinson wanted that business running while he sought to sell the hotel lease; however he did not want a binding commitment and repeatedly deflected the requests by Mr Paull and Mr Joyce to sign the document that had been presented to him, It is the deferral of the requests to sign that provides the rationale for the continued pressing to sign.”

Was there a concluded agreement for a twelve months lease?

24 Mr Paull submitted that a concluded agreement for lease should be found from the parties’ conduct, in the manner of Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523, Integrated Computer Service Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 and Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153. Classical offer and acceptance is not essential for the formation of a contract, which may be inferred from the acts and conduct of parties as well as or in the absence of their words. Did the parties’ conduct, viewed in the light of the surrounding circumstances, show an agreement for lease; in particular, when Mr Paull had made known that he wanted a lease in the form of the draft agreement, on an objective assessment did Mr Robinson by his conduct convey agreement that the lease would be entered into?

25 Mr Paull emphasised the surrounding circumstances of the advertisement of the restaurant “for lease”, Mr Robinson’s expressions that Mr Paull would do well at the Metropolitan and that he should start as soon as possible, and the undoubted references to a lease at the various meetings. When the draft lease was put forward the four week period was about to begin or probably had just begun, whether the parties would like each other (to adopt Mr Robinson’s language) remained to be seen; and rent was still to be agreed. Rent was agreed towards the end of March, and any conditionality about the parties liking each other was objectively satisfied because Mr Paull continued to conduct the Metropolitan Hotel restaurant and Mr Robinson allowed him to do so. The restaurant was conducted generally in accord with the draft agreement. Mr Paull submitted that from these facts there was objectively to be found an agreement that the parties were bound to a lease in the terms of the draft agreement.

26 In my opinion, the submission should not be accepted. The facts are remote from those of Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd and like cases. In this present case the parties plainly intended that their relationship should be that embodied in a written document. Mr Paull put forward the draft agreement. It left for decision not only rent, but also a number of other matters listed under the heading “Special Conditions – Area for discussion”. Rent was agreed, but the other matters were not, and over-arching the proffering of the draft agreement and agreement on rent was Mr Robinson’s statement that he would show the draft agreement to his lawyers, a position maintained in his later statement that it was with his accountant. I do not think it can be inferred that the parties agreed upon the draft agreement as the embodiment of their relationship, let alone that they agreed that they were bound to each other without the signing of a finalized agreement. That Mr Joyce was pressing to have a signed agreement as he put it in late April 1996, to “get this agreement on track and signed” and Mr Robinson was fobbing him off, demonstrated to the contrary.

Is there an estoppel against denying a concluded agreement for a twelve months lease?

27 Mr Paull submitted that there was an estoppel in the manner of Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. In that case the terms of the lease had been proposed, the intending lessor had sent it by way of exchange but exchange had not taken place, and the lessor had embarked on demolition and construction as contemplated by the lease. The legal relationship of lessor and lessee had been assumed by the intending lessor, induced thereto by the intending lessee; the intending lessor had acted in reliance on the assumption and would suffer detriment if the assumption was not fulfilled; the intending lessee was estopped from “retreating from its implied promise to complete the contract” (per Mason CJ and Wilson J at 408, Brennan and Deane JJ relevantly agreeing); the remedy for the detriment was to hold the intending lessee to the lease as if exchange had taken place. In the present case Mr Paull submitted, in short, that he had been induced by Mr Robinson to assume that he had a twelve months lease, that he had acted on that assumption to his detriment by commencing conducting the Metropolitan Hotel restaurant and continuing to conduct it, and that the remedy for the detriment was to hold the companies to a twelve months lease.

28 The judge found that Mr Paull believed that a twelve months lease would be considered, but not that it would be entered into. When Mr Paull commenced conducting the Metropolitan Hotel restaurant, on any view a twelve months lease was not assumed. Even when the draft agreement was in play, any assumption was necessarily incomplete because of the matters for further discussion, but more fundamentally the continued stance of Mr Robinson that he had shown the draft agreement to his lawyers and then that it was with his accountant, and the pressing for finalisation and signature of the draft agreement, provided a sound basis for the judge’s express finding that Mr Paull “appreciated that he did not have a concluded agreement as to the term of occupancy.” The necessary assumption induced by Mr Robinson was not made out.

29 It is not clear that there was any detriment for which the appropriate remedy would be to hold the companies to a twelve months lease, as distinct from ordering financial compensation for any lost expenditure. It should not be forgotten that Mr Paull moved from a losing business at the Excelsior Hotel. Questions of enforcement against Navigrand Pty Ltd would arise. It is not necessary to go to these matters.

Misleading or deceptive or unconscionable conduct

30 The amended statement of claim alleged conduct contravening the Trade Practices Act 1974 (C’th) and the Fair Trading Act 1987 (NSW), essentially in that Mr Robinson represented to Mr Paull that he would be given a twelve months lease or that there was an agreement for a twelve months lease. For reasons which will be apparent, the judge correctly found against Mr Paull in that respect.

31 The pleading was not well framed, but on one view also alleged contravening conduct in that Mr Robinson represented that the Metropolitan Hotel restaurant was available for lease to an acceptable lessee and, understood benevolently, that the companies intended to enter into a lease with an acceptable lessee. The judge found that Mr Robinson “never intended to agree to a lease for a period of time other than the initial four week period”; that when given the draft agreement, he “procrastinated and never signed it, nor did he ever have any intention of signing it”. Mr Robinson stalled on signing a lease, so the restaurant would continue and would benefit the companies in selling the lease of the hotel. Mr Paull submitted on appeal that this amounted to contravening conduct, and that he had suffered loss by the conduct because he had commenced to conduct the Metropolitan Hotel restaurant and had continued to conduct it in reliance on the prospect of a lease, if found an acceptable lessee, held out by Mr Robinson.

32 The loss suffered by the conduct would be arrived at by comparing Mr Paull’s position, having taken up the conduct of the Metropolitan Hotel restaurant in February 1996 and then been required to leave in May 1996, with his position if he had not taken up the conduct the restaurant. The loss-making Excelsior Hotel restaurant would play a part in the assessment. The damages claimed by Mr Paull at the trial focussed on the profits he said he would have made if he had had a twelve months lease, to which he sought to add a twelve months option and conversion to a five year lease by operation of a provision of the Retail Leases Act 1994. While there was evidence going to his expenditure in embarking upon the Metropolitan Hotel restaurant, and reference in his submissions before the judge to Mr Robinson “concealing that no lease of the type being sought in [a version of the draft agreement] was available or would be granted”, it is not clear that in the end a case was presented at trial in accordance with the submissions on appeal.

33 Mr Paull said in his principal affidavit that on 19 February 1996 Mr Joyce told Mr Robinson that they were “not prepared to walk into the restaurant without a written agreement”, specifying a minimum term of twelve months, and that Mr Robinson said that that would be fine. In his oral evidence this became a written and signed agreement. Mr Joyce gave affidavit evidence of a conversation in (perhaps unfortunately) identical terms. They were not accepted as to this conversation.

34 In fact, Mr Paull commenced conducting the Metropolitan Hotel restaurant without any agreement for lease, written or otherwise, and without any agreement on rent or duration beyond the four weeks rent free. It was Mr Paull’s oral evidence that he commenced and continued the conduct of the Metropolitan Hotel restaurant because, unlike the Excelsior Hotel restaurant for which he gave a day’s notice, he “had an agreement to lease in place.” He said that he commenced on 26 February 1996 although there was not a written agreement because Mr Robinson had promised to sign an agreement at the end of the four weeks; he said he “thought we had negotiated a legal agreement with Robinson, on his proviso to sign the document after four weeks, which obviously he was happy with our performance.” He still thought signature of the draft agreement was important to give security of tenure, and that until it was signed he did not have security of tenure, hence the frequent requests to Mr Robinson to sign it; when asked why, he answered, “A signature on a document is a contract is it not?”

35 Mr Paull’s dichotomy between having legal agreement for a twelve months lease and not having security of tenure was not greatly elucidated, but whatever he meant, this evidence was not directed to reliance on an intention to enter into a lease with an acceptable lessee. The judge did not accept that Mr Robinson promised to sign an agreement at the end of the four weeks. On the judge’s findings, Mr Paull commenced to conduct the Metropolitan Hotel restaurant with no certainty at all that he could continue beyond the four weeks, and continued to conduct it after the four weeks knowing that he did not have a concluded agreement for the length of his occupancy.

36 In a supplementary affidavit Mr Paull said that he would not have “quit the operation in the Excelsior Hotel at Glebe and given up the opportunity which that involved”, and would not have gone into the Metropolitan Hotel and conducted the restaurant, if he had been told by Mr Robinson that Mr Robinson intended to sell the lease of the hotel. In his supplementary affidavit Mr Joyce was allowed to say that he and Mr Paull were induced “to enter into negotiations with Mr Robinson” on the basis of his representations that he wished to lease the restaurant operations in the Metropolitan Hotel.” The judge did not specifically deal with this evidence so far as it provided a basis for reliance on conduct conveying an intention to enter into a lease with an acceptable lessee. The thrust of the evidence was plainly enough in issue, Mr Paull’s profound dissatisfaction with the Excelsior Hotel restaurant and his continuance with the Metropolitan Hotel restaurant without protest when he became aware that the lease of the hotel was on the market in mid-March 1996 or earlier particularly telling against Mr Paull’s evidence.

37 Given these matters and his extent of conducting the restaurant without security of tenure in any ordinary sense, I do not think it should be inferred that Mr Paull would not have taken up the Metropolitan Hotel restaurant if he had been told that the lease of the hotel was on the market and that it was not intended to enter into a lease. The judge implicitly found otherwise when he said that, despite becoming aware that the lease of the hotel was on the market and knowing that he did not have a written agreement which would “confer on him a twelve month period”, Mr Paull “chose to continue to operate the restaurant”. Mr Paull had every reason to abandon the business at the Excelsior Hotel, he may well have been prepared to take up and continue with the Metropolitan Hotel restaurant in the hope or expectation that its success would move a purchaser of the lease of the hotel to continue the arrangement or even enter into a lease for a term, and the judge was not satisfied to the contrary.

38 In my opinion, the submissions on appeal do not have necessary support in the evidence, and should not be accepted. I add that, from the debate as to damages in the course of submissions, it may be that damages suffered by the conduct in question could not properly be picked out of the evidence at the trial, and if they could they would not be large.

The result

39 The claims against the companies and Mr Robinson fail. The claims against Mr Williams and Navigrand Pty Ltd involved enforcing against them a twelve months agreement for lease or were founded on representations that the agreement for a twelve months lease would be honoured. They failed because the agreement for lease was not upheld, and that remains the case.

40 I propose orders that the appeal be dismissed with costs.

41 Tobias JA: I agree with Giles JA.

42 Bryson JA: I agree with Giles JA.

********