Perpetual Ltd v Myer Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
COMMERCIAL LIST

S CI 2016 00483

PERPETUAL LIMITED (ACN 000 431 827) (AND OTHERS ACCORDING TO THE SCHEDULE)	Plaintiffs
v
MYER PTY LTD (ACN 004 143 239)	Defendant

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 22, 23 November and 6 December 2017
DATE OF JUDGMENT:	29 January 2018
CASE MAY BE CITED AS:	Perpetual Ltd v Myer Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 2

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LEASES AND TENANCIES – Provisions with respect to the payment of outgoings – Construction – Rectification – Acquiescence – Laches – Account stated – Limitation of actions – Recovery of moneys on the basis of claimed underpayments – Mount Bruce Mining v Wright Prospecting Pty Ltd (2015) 256 CLR 104 – Westpac Banking Corporation v Tanzone Pty Ltd (2000) 9 BPR 17,521 – Simic v NSW Land & Housing Corp (2016) 339 ALR 200 – Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 – Byrnes v Kendle (2011) 243 CLR 253 – Commonwealth Dairy Produce Equalisation Committee Ltd v McCabe (1938) 38 SR (NSW) 397 – Bank of New South Wales v Brown (1983) 151 CLR 514 – Hampton Gold Mining Areas Ltd v Metals Exploration Ltd (1995) 17 WAR 30 (FC).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C.M. Scerri QC with Mr R.M. Peters	Gadens Lawyers
For the Defendant	Mr I.G. Waller QC with Mr P.S. Noonan	Clayton-Utz

HIS HONOUR:

Issues

This proceeding raises as the central issue whether there is a mistake in the formula for the calculation of variable outgoings payable under a lease between the Plaintiffs as landlords and responsible entity, and Myer Pty Ltd (“Myer”) as tenant under a lease executed on 4 September 2001 (“the Lease”) of its department store (“the premises”) at the Chadstone Shopping Centre (“Chadstone”). The term of the Lease is 30 years commencing on 23 November 1998; together with one option for a further term of 15 years.

More particularly, the central issue arises with respect to cl 3(b) of the Fourth Schedule to the Lease which concerns the calculation of Myer’s contribution, as tenant, to increases in variable outgoings. The Plaintiffs contend that there is a mistake in these Lease provisions in that the reference in cl 3(b) to “the immediately preceding Accounting Period” should be a reference to “the Base Accounting Period”. For convenience in these reasons, this is referred to as “the Mistake”. Such a reference does not, however, pre-empt the question whether there is a relevant mistake.

The registered proprietors of Chadstone are the First Plaintiff (“Perpetual”) and the Second Plaintiff (“Bridgehead”). During the relevant period, Perpetual has held 50% of Chadstone as trustee of, or custodian for, a publicly listed trust. Gandel Management Limited (“GML”) was manager and then responsible entity of the trust. In 2002, the Third Plaintiff (“Vicinity”) replaced GML as responsible entity of the trust and assumed GML’s rights with respect to the Lease. Perpetual, Bridgehead and GML, and for the period after October 2002 Perpetual, Bridgehead and Vicinity, are collectively referred to as the “Plaintiffs”.

In the event of a finding that there was a Mistake, the next question is whether the Court should correct the Mistake, either by a process of construction or by means of the equitable remedy of rectification. These questions, in turn, also require consideration of the various defences raised by Myer, which include—with respect to rectification—acquiescence and laches. Additionally, Myer raises and relies upon the statute of limitations and also the application of the common law cause of action of account stated.

In the event that a Mistake is found and none of the Myer defences are successful, the Plaintiffs seek from Myer a payment in respect of an underpayment of increases in variable outgoings. It is the common position between the parties that any such underpayment would be quantified in a separate and subsequent part of the trial of this proceeding in the event that the parties are unable to agree the amount.

Background

In 1994, the Plaintiffs began preparation for “Stage 20” of the development of Chadstone which finally received internal approval in 1997. Stage 20 included substantial demolition and building works and the addition of David Jones as a second department store.[1]
[1]Witness Statement of Neville Beer (8 May 2017), [16].

Myer, at that time, was the key anchor tenant and the sole department store at Chadstone. It occupied the premises pursuant to a favourable lease,[2] which had been amended in 1989 to give Myer certain rights in the event that a second department store was added to Chadstone.[3]
[2]Witness Statement of Raymond McNamara (4 August 2017), [35(b)].
[3]Deed of Variation, recital G, cl 2.1.

In the circumstances, Stage 20 could not proceed unless Myer agreed to surrender its existing lease and enter into a new lease on terms that would facilitate the redevelopment.[4] It was expected that, if Stage 20 did proceed, Myer would lose $16 million in revenue when the David Jones department store opened.[5] The rent payable by Myer would also increase significantly,[6] with only a small increase in floor area.[7] There appears to be some consensus—though perhaps not common ground—that Myer was to be no worse off under the new Lease than under its then existing 1983 Lease;[8] which also made provision for payment by Myer of a contribution to variable outgoings. In any event, commercially, one would wonder why the position would be otherwise, absent some highly beneficial collateral arrangement of which there is no evidence in this case. In any event, this not a decisive consideration in the present context.
[4]Transcript, 74 (Neville Beer).
[5]Memorandum of Peter Leslie regarding Comparison of Rental Rates.
[6]Chadstone Master Plan: Preliminary Feasibility Study No 3 (March 1996), 8 noting Myer’s current total occupancy costs as $4,582,932; compare with Memorandum of Peter Leslie regarding Comparison of Rental Rates, noting the Current Myer Offer of $6.76 million.
[7]Transcript, 79 (Neville Beer).
[8]Witness Statement of Neville Beer (8 May 2017), [23]; Witness Statement of Raymond McNamara (4 August 2017), [36]; cf Transcript, 241–2, 245–6, 258, 279–80.

The concept plans for Stage 20 were provided to Myer in March 1994,[9] and the parties engaged in negotiations over the course of the ensuing years. Mr Peter Leslie and Mr Neville Beer were the principal commercial negotiators for the Plaintiffs and Mr Raymond McNamara was the principal commercial negotiator for Myer.[10] Internal and external lawyers were also involved on both sides to assist in preparing the documentation. When negotiations on variable outgoings reached a critical point, the variable outgoings clause was also reviewed and redrafted for the Plaintiffs by Mr Paul Powderly, who was “in charge of outgoings for all centres”.[11]
[9]Letter from Neville Beer to David Lawson (30 March 1994).
[10]Witness Statement of Neville Beer (8 May 2017), [22]; Witness Statement of Raymond McNamara (4 August 2017), [12].
[11]Witness Statement of Angelika Dickschen (7 June 2017), [45.1]–[45.3]. The role of Gandel Asset Management Pty Ltd is explained in the Witness Statement of Neville Beer (8 May 2017), [10.2].

The final draft of the Lease was scheduled to an agreement for lease (“AFL”) executed in September 1997.[12] The AFL and draft Lease were preceded by numerous drafts of “Heads of Agreement” (“HoA”) which set out, in short terms, the essential elements of the proposed lease. None of the HoA were ever executed and it is not contended by either party that any of the HoA were legally binding.
[12]Agreement for Lease (6 November 1997).

The final version of the HoA was dated 26 November 1996.[13] The Plaintiffs contend that the HoA are objective contemporaneous evidence of how the parties intended that Myer’s contribution to Variable Outgoings would be calculated. The first draft HoA was prepared by 20 September 1995.[14] In subsequent drafts, the document became an “Invitation to Make an Offer Heads of Agreement”.[15] These documents were also sometimes described as simply an “Invitation to Make an Offer”.[16]
[13]Invitation to Make an Offer: Heads of Agreement (26 November 1996).
[14]Heads of Agreement (20 September 1995).
[15]Invitation to Make an Offer: Heads of Agreement (16 January 1996); similarly in subsequent drafts.
[16]Facsimile from Peter Leslie to Raymond McNamara (16 January 1996); see also Invitation to Make an Offer Heads of Agreement (16 January 1996) at clause 16 “Approvals” and similarly in subsequent drafts.

The Mistake

The Plaintiffs contend that to overcome the Mistake in cl 3(b) of the Fourth Schedule of the Lease, that clause should be construed or rectified in accordance with Annexure B to the Further Amended Statement of Claim. For convenience, this Annexure B is reproduced in the Annexure to these reasons (and is referred to hereafter as “the Annexure” or “Annexure B to the Further Amended Statement of Claim”, depending on context).

The reasons why the Plaintiffs contend that this is necessary are as follows:[17]
[17]Plaintiffs’ Closing Submissions (27 November 2017), [13].

…
13.1The Fourth Schedule, as written, defines “Base Accounting Period” as the Accounting Period of twelve months commencing on 1 July following the Commencing Date (i.e. the first full year of the Lease term). But the Fourth Schedule does not use the term “Base Accounting Period” at all in the annual calculations for which the Fourth Schedule provides;
13.2The concept of the Base Accounting Period was an important one, and was the subject of negotiation until 12 May 1997;
13.3Clause 3 is divided into two parts. Paragraph (a) applies “in respect of the second full Accounting Period after the Commencing Date” (i.e. the second full year of the Lease term). The increase in outgoings is described in sub-paragraph (a)(i) by reference to “the immediately preceding Accounting Period”. In the case of “the second full Accounting Period after the Commencing Date”, the “immediately preceding Accounting Period” is, of course, the first Accounting Period. That is the same thing as the Base Accounting Period;
13.4Thus, the calculation in Clause 3(a) is to be done by reference to the Base Accounting Period. This is reflected in the formula in Clause 3(a)(ii), where the factor “VO” is defined as the Variable Outgoings “for the Accounting Period preceding the Accounting Period in respect of which the calculation is being made”. This factor is correctly applied in Clause 3(a)(ii) to adjust for changes in the Index by multiplying VO by CPI(2) divided by CPI(1). VO is applied correctly in Clause 3(a)(ii), also, by calculating the increase from the previous year by deducting the Variable Outgoings in the first year from the CPI-adjusted Variable Outgoings in that year;
13.5In contrast, Clause 3(b) is expressed to apply “in respect of each subsequent Accounting Period”. But a clear mistake has occurred because Clause 3(b) is identical to Clause 3(a) although the former is expressed to apply only to the second full Accounting Period, while the latter is expressed to apply to the remaining (26) years of the first term, and the 15 years of the second term. It is impossible to discern any plausible explanation for this, and Myer has not suggested any;
13.6The Owners’ case is supported also by Clause 5 of the Fourth Schedule. It refers to the “Base Accounting Period” not being updated if the option is exercised. That reference makes no sense unless the Base Accounting Period is relevant to the calculations of the Variable Outgoings contribution during the 15 years of the extended term. That is made relevant, and Clause 5 is given sense, only if the Fourth Schedule is construed or rectified as pleaded by the Owners.

The Plaintiffs contend that the correction to the Lease which they plead in Annexure B to the Further Amended Statement of Claim is necessary: first, to give effect to the distinction in cl 3 of the Fourth Schedule to the Lease between the second full Accounting Period and subsequent Accounting Periods; secondly, to give relevance to cl 5 of the Fourth Schedule to the Lease; and, thirdly, as a correction which goes no further than is necessary to correct the Mistake.

Myer, on the other hand, contends that the terms of the Lease do not indicate any drafting infelicities or absurdities and that, consequently, there is no basis to construe the Lease as a commercial agreement other than in accordance with its terms. Moreover, Myer contends that the expression “Base Accounting Period” does have work to do with respect to cl 5 of the Fourth Schedule to the Lease—as that provision now stands:[18]

5.If the Lessee exercises the option given to it for a further term of fifteen years the Base Accounting Period will not be updated and the lease for the further term shall incorporate such alterations as are necessary to provide for the Lessee to contribute to Increases in Variable Outgoings as if such further term were a continuation of this Lease.
[18]See Transcript, 196–7.

Though, as Myer concedes, the expression may only have a minor drafting role in the context of these provisions, it does, nevertheless, have a role. Consequently, the expression cannot be characterised as mere “surplusage” and thus support the Plaintiffs’ contentions made on this basis. The issue of “absurdity” is addressed in detail in the reasons which follow but, for present purposes, it is sufficient to make reference to the submissions by Myer that the evidence given on behalf of the Plaintiffs does not indicate that they had any difficulty in interpreting and applying the terms of the Lease for some 20 years or so.
Negotiating history

Before descending into the particulars of the negotiating history, it should be emphasised that the process began in the early to mid-1990s, now the best part of 30 years ago. The Plaintiffs did call a number of witnesses in relation to the negotiating history, the testimony of which is considered in more detail in the reasons which follow. Nevertheless, it is clear, both from their evidence and as a matter of human experience, that the recollections of these witnesses are now sporadic and hazy, as would be expected, and that reliance in relation to the negotiating history should be placed primarily upon the documentary evidence.[19]
[19]Auswest Timbers Pty Ltd v Secretary to the Department of Sustainability and Environment (2010) 241 FLR 360 at 400–2 [87]; FoodCo UK LLP v Henry Boot Developments Ltd [2010] EWHC 358 (Ch) [3]–[5] (Lewison J); and see North East Solution Pty Ltd v Masters Home Improvement Australia Pty Ltd [2016] VSC 1, [10]–[12] (Croft J).

Negotiation of the Heads of Agreement

Between September 1995 and November 1996 at least 14 drafts of the HoA were exchanged between the parties, with numerous changes made on different issues. During that time, the parties put forward proposals and counterproposals on the question of whether, and in what manner, Myer should contribute to increases in variable outgoings.

On 24 August 1994, negotiation of the HoA between the Plaintiffs and Myer about Stage 20 had commenced. In September 1995, the Plaintiffs drafted a HoA and provided it to Myer with the master plans for Stage 20 which, by that time, had been prepared.

The Plaintiffs provided a very detailed account of the negotiating process said to be evident from the contents of the HoAs.[20]
[20]Plaintiffs’ Closing Submissions (27 November 2017), [59]–[96].

A summary of this process was also provided by Myer.[21]
[21]Defendant’s Outline of Closing Submissions (28 November 2017), [15]–[31].

From September 1995 to May 1996, the parties put forward competing positions with respect to the issue of contribution to variable outgoings, which may be summarised as follows:

(a) on 20 September 1995 the Plaintiffs proposed a draft HoA that provided that Myer would contribute to increases in variable outgoings over the base year;[22]
[22]Heads of Agreement (20 September 1995).

(b) on 29 April 1996 Myer responded with a draft HoA that provided that it would not contribute to increases in variable outgoings at all;[23] and

(c) on 22 May 1996 the Plaintiffs responded with a draft HoA that again provided that Myer would contribute to increases in variable outgoings over the base year.[24]

The drafts provided after September 1995 followed a series of meetings between the Plaintiffs and Myer between January 1996 and 22 May 1996.[25] The Plaintiffs contend that these discussions indicate that since increases in variable outgoings would not be covered by the rent review process, the Plaintiffs, understandably, wanted separate provision to be made for increases in variable outgoings.[26] Commercially, of course, this is unsurprising in a commercial lease of the type contemplated unless the parties were content with a grossed up rent. However, it is also clear that difficulties are encountered in formulating commercial terms in this respect where the lease is for a long term, such as the Lease in this instance, and where, consequently, movements in variable outgoings are likely to be difficult to estimate for that period.

[23]Draft Heads of Agreement (29 April 1996).

[24]Invitation to Make an Offer: Heads of Agreement (22 May 1996).

[25]See Plaintiffs’ Closing Submissions (27 November 2017), [61]–[65].

[26]See Plaintiffs’ Closing Submissions (27 November 2017), [65].

On 14 August 1996, the parties met to discuss the terms proposed in the Plaintiffs’ then most recent draft HoA, which had been provided to Myer on 13 August 1996 (though dated “13/5/96”).[27] At that meeting, Mr McNamara made it clear that Myer would not agree to contribute to increases in variable outgoings over the base year.[28] On 15 August 1996, Mr McNamara followed up the meeting the day before by sending his annotations to the draft HoA stipulating, among other things, that Myer would not contribute to variable outgoings at all.[29] The annotated draft from Myer struck out the paragraph in Item 8 of the Plaintiffs’ draft HoA dealing with Myer’s contribution to variable outgoings and had the word “DELETE” written next to that clause in the margin. The annotated draft HoA was signed by Mr McNamara at the top of the first page. This signing is, as Myer observes in its submissions, significant in that this was the only HoA ever signed by anybody.
[27]Facsimile from Peter Leslie to Raymond McNamara (13 August 1996), with attached Invitation to Make an Offer: Heads of Agreement (dated both 13 August 1996 and 13 May 1996).
[28]Witness Statement of Neville Beer (8 May 2017), [47.2]; see also Minutes of Meeting with Myer (14 August 1996) as described by Mr Beer in his Witness Statement at [47].
[29]Letter from Raymond McNamara to Peter Leslie (15 August 1996), attaching Annotated Invitation to Make an Offer: Heads of Agreement (14 August 1996); Witness Statement of Neville Beer (8 May 2017), [47]–[48].

On 6 September 1996, the Plaintiffs sent Myer an amended draft HoA dated 4 September 1996 which, apart from dating, was the same was the draft that had been sent to Mr Andrew Erikson. As observed in the Plaintiffs’ submissions, they “changed tack” in this draft.[30] In Item 6 of the draft, they include variable outgoings in the rent review process—hence Ms Angelika Dickschen describing it as a “gross” lease in her 5 September 1996 letter to Mr Erikson. The rent review had ratcheted increases in rent every five years. Since increases in variable outgoings were to be covered by the rent review mechanism, Item 8 concerning Variable Outgoings now read “Included in Annual Base Gross Rental”. At that time, further negotiations were scheduled for 13 September 1996.[31] The reference to a copy of the draft having been sent to Mr Erikson is a reference to a draft being sent to him on 5 September 1996 together with instructions to him, as a partner of Malleson Stephen Jacques (“Mallesons”) to prepare a draft AFL and a draft of the Lease accordingly.[32]
[30]See Plaintiffs’ Closing Submissions (27 November 2017), [71].
[31]Witness Statement of Neville Beer (8 May 2017), [51].
[32]Letter from Angelika Dickschen to Andrew Erikson (5 September 1996), attaching Invitation to Make an Offer: Heads of Agreement (1 September 1996).

Thus, as observed by Myer, by 6 September, the Plaintiffs had seemingly accepted Myer’s change. Mr Leslie wrote to Mr McNamara providing an amended draft HoA with the variable outgoings reference deleted as stipulated by Mr McNamara, under cover of a letter that said:[33]

We refer to your letter of August 15th, 1996, and enclose herewith our revised Heads of Agreement incorporating the terms and conditions upon which we are prepared to recommend your offer for final board approval.
We have attempted to incorporate some of your suggestions with other points being left for further discussion at our meeting scheduled for September 13th, 1996.

[33]Letter from Peter Leslie to Raymond McNamara (6 September 1996) attaching Invitation to Make an Offer: Heads of Agreement (4 September 2016).

On 11 September 1996, Myer sent the Plaintiffs handwritten amendments to the draft HoA dated 4 September 1996.[34] Myer reverted to its position, as at 13 August 1996, namely, no ratcheted increase in rent in Item 6 and no increase in variable outgoings in Item 8. On 13 September 1996, the Plaintiffs met with Myer and then,[35] on 25 September 1996, there was a Gandel Group Pty Ltd (“Gandel Group”) board meeting. As can be seen from the minutes of that meeting, the board considered the draft HoA that Myer had sent on 11 September 1996 because Myer was not accepting the 12% ratchet.[36] Myer was also reported as requesting an increased tenure under the Lease of 30 years.
[34]Witness Statement of Neville Beer (8 May 2017), [53].
[35]Witness Statement of Neville Beer (8 May 2017), [57].
[36]Witness Statement of Neville Beer (8 May 2017), [56].

On 24 September 1996 and 27 September 1996,[37] there was further correspondence by fax from Mr Beer to Mr McNamara highlighting a change to the formula for the rent increases. The Plaintiffs proposed to Myer a new base gross rent review mechanism. In the 4 September 1996 draft HoA the Plaintiffs sought a 12% ratchet every five years and the new proposal was to reduce the ratcheted increase in base gross rent to 5% on the basis there would be a review after the first five years and then every three years thereafter.[38] On 8 October 1996, the Plaintiffs prepared an amended draft HoA incorporating these changes.[39]
[37]Facsimile from Neville Beer to Raymond McNamara (24 September 1996); Facsimile from Neville Beer to Raymond McNamara (27 September 1996).
[38]Witness Statement of Neville Beer (8 May 2017), [57].
[39]Invitation to Make an Offer: Heads of Agreement (8 October 1996).

The position under the draft HoA dated 8 October 1996 was that the Lease term was to be 30 years with a 15 year option—which extended Myer’s tenure from the existing termination in 2013 up to 2043. Item 6 matched the 27 September 1996 base rent proposal. As increases in variable outgoings would be recovered under the rent review, no increases were needed under Item 8. At this point, negotiations were continuing, but many of the terms seemed relatively settled and a draft AFL and Lease was being prepared by Mallesons. This is consistent with Ms Dickschen providing the 8 October 1996 draft HoA to Mr Erikson.[40] On 11 October 1996, Mallesons provided to the Plaintiffs the draft AFL and the draft Lease, the draft Lease being based on the 8 October 1996 draft HoA.[41]
[40]Witness Statement of Angelika Dickschen (7 June 2017), [18].
[41]Witness Statement of Neville Beer (8 May 2017), [60]; Witness Statement of Angelika Dickschen (7 June 2017), [19].

On 15 October 1996, Mr Beer sent a letter to Mr McNamara as follows:[42]
[42]Letter from Neville Beer to Raymond McNamara (15 October 1996) attaching Invitation to Make an Offer: Heads of Agreement (15 October 1996).

Please find herewith the documentation confirming the proposed new Myer store at Chadstone Shopping Centre.
The documentation includes:
a.       Heads of Agreement.
b.       Lessor/lessee Works.
c.       Store Layout.
d.       Site Plans.

We look forward to your acceptance.

Although not spelt out in this letter, the draft HoA which it attached was, as Myer observes, in fact quite different to what had gone before. Mr Beer had had financial models prepared that contemplated a net lease instead of a gross or semi-gross lease,[43] and the draft HoA attached to the 15 October 1996 letter in part reflected that change, with the addition of the “Item 8” pleaded by the Plaintiffs in this proceeding:[44]
Non Statutory Outgoings
The Lessee is responsible for 80% of the increases in centre operating expenses as the demised premises relates to total lettable area of the centre over the base year (year 1). These annual increases are to the lesser of CPI or actual.

From the terms of the correspondence, it is apparent that Mr Beer intended this as an “offer”.[45]

[43]See e.g. Analysis of Myer Rent Proposals (undated).

[44]Invitation to Make an Offer: Heads of Agreement (15 October 1996), [8].

[45]Witness Statement of Neville Beer (8 May 2017), [59].

The proposal or offer made by Mr Beer in the 15 October 1996 letter was, the Plaintiffs say, an attempt by Mr Beer to break an impasse with a modified net rent deal as, prior to 15 October 1996, Myer had rejected the Plaintiffs’ proposals for increases of base rent to be 5% on reviews after the first five years and then every three years.

The draft HoA sent to Myer on 15 October 1996 contained significant changes by comparison with previous drafts but, as observed by Myer, the letter attaching the amended HoA was an anomaly in the chain of correspondence in that, unlike all other correspondence attaching a draft HoA that had been changed,[46] it made no reference to any revision having been made to the attached draft. Nor were the changes marked up on the attached draft.[47] And nor was the change to a net lease consistently reflected in the draft HoA, which still provided on its first page for “base gross rental” and the increase of this amount by “base gross rent reviews”.[48] In spite of this, neither Mr Beer nor Mr McNamara recall any discussion about these changes to the draft HoA.[49] Nor is there any evidence, in contrast to other amended drafts of the HoA,[50] that Mr McNamara acknowledged or considered the “offer”. By contrast, there is ample evidence, as Myer submits, that Mr McNamara had already rejected the concept at least twice.[51] Consistently with this, Mr Beer’s last positive recollection of Mr McNamara’s position is that Mr McNamara had rejected the concept.[52] Moreover, Mr Beer does not have any recollection of Mr McNamara accepting it, nor is there any other record of its acceptance by Mr McNamara at that time. The only further version of the HoA was sent by Mr Leslie to Ms Gabrielle Noonan at Myer on 26 November 1996.[53] Although it was copied to Mr Beer and Mr S Macrae at the Plaintiffs, and to Mr Mark Graham—whose focus was on store design and not on things such as rent and outgoings[54]—it was not sent or copied to Mr McNamara. Accordingly, as submitted by Myer, it is not apparent that the critical changes to the draft HoA concerning Myer’s contribution to increases in variable outgoings were ever agreed by Mr McNamara.
[46]See e.g. Facsimile from Peter Leslie to Raymond McNamara (16 January 1996) referring to “revised” HoA; Facsimile from Mark Graham to Neville Beer (29 April 1996) describing changes in attached HoA; Facsimile from Peter Leslie to Mark Graham (22 May 1996) referring to “revised” HoA; Facsimile from Peter Leslie to Raymond McNamara (13 August 1996) referring to “revised proposed” HoA; Letter from Peter Leslie to Raymond McNamara (6 September 1996) referring to “revised” HoA.
[47]Invitation to Make an Offer: Heads of Agreement (15 October 1996).
[48]Invitation to Make an Offer: Heads of Agreement (15 October 1996), [4], [6].
[49]Witness Statement of Neville Beer (8 May 2017), [59]; Witness Statement of Raymond McNamara (4 August 2017), [48]–[53].
[50]See e.g. Minutes of Meeting with Myer (14 August 1996); Letter from Raymond McNamara to Peter Leslie (15 August 1996), attaching Annotated Invitation to Make an Offer: Heads of Agreement (14 August 1996); Letter from Raymond McNamara to Peter Leslie (11 September 1996) attaching Annotated Invitation to Make an Offer: Heads of Agreement (4 September 1996).
[51]Minutes of Meeting with Myer (14 August 1996); Letter from Raymond McNamara to Peter Leslie (15 August 1996) attaching Annotated Invitation to Make an Offer: Heads of Agreement (14 August 1996), [6]; Letter from Raymond McNamara to Peter Leslie (11 September 1996) attaching Annotated Invitation to Make an Offer: Heads of Agreement (4 September 1996).
[52]Witness Statement of Neville Beer (8 May 2017), [47.2].
[53]Letter from Peter Leslie to Gabrielle Noonan (26 November 1996), copied to Mr Beer, Mr S MacRae and Mr M Graham.
[54]Witness Statement of Raymond McNamara (4 August 2017), [12].

On 24 October 1996, the Plaintiffs sent to Myer the draft AFL and draft of the Lease drawn by Mallesons.[55] Clause 4.3 of the Mallesons draft of the Lease incorporated the Net Proposal.[56] On 30 October 1996, a Gandel Group board meeting was held. Messrs Beer and Leslie were authorised to continue negotiations with Myer based on the 15 October 1996 HoA; a copy of which formed part of the board papers.[57] On 6 November 1996, a GML board meeting occurred. Stage 20 of the Chadstone development was Item 5.2.5 on the board agenda.[58] The board papers for that item[59] sought approval for the, by then, 23 October 1996 HoA; a copy of which was part of the board papers. That draft HoA was identical to the 15 October 1996 HoA draft. Messrs Beer and Leslie were authorised to continue negotiations with Myer on the basis of the 23 October 1996 HoA.[60] The Plaintiffs contend that these board papers make it plain that they were proceeding on the basis of the 23 October 1996 HoA and, further, that the recovery of increases in variable outgoings would be calculated by reference to the base year. This is not, however, a position accepted by Myer. In my view, the evidence of dealings between the parties at this stage indicates quite clearly that negotiations were, as at that time, continuing between the Plaintiffs and Myer, and the position can be put no higher than as at 26 November 1996 the GML board had a particular view as to how the negotiations should proceed and be resolved. The same appears to be the position following the GML board meeting on 4 December 1996.[61]
[55]Witness Statement of Angelika Dickschen (7 June 2017), [25].
[56]Draft Lease (23 October 1996).
[57]Witness Statement of Neville Beer (8 May 2017), [62]–[63].
[58]Gandel Management Limited Board Meeting Agenda (6 November 1996).
[59]Gandel Management Limited Board Papers (30 October 1996), [5.2.5] (Chadstone Master Plan); Invitation to Make an Offer: Heads of Agreement (23 October 1996).
[60]Witness Statement of Neville Beer (8 May 2017), [63]–[65].
[61]And see Transcript 245–7.

At this stage, drafting continued and it does appear that some of those involved in the negotiating or drafting process assumed that at that time, Myer would contribute to increases in variable outgoings in some way. As indicated, Myer’s contention is that the position could not be put higher than that. More particularly in this respect, Myer submits:[62]
[62]Defendant’s Outline of Closings Submissions (28 November 2017), [33], [34]; see also Plaintiffs’ Closing Submissions (27 November 2017), [88]–[96].

33. However, Item 8 of the draft HoA was in only general terms and the evidence confirms that, even among those who expected Myer to contribute to variable outgoings, there was no clear conception as to how any contribution to variable outgoings would work. Thus:
(a)Item 8 included a cap to the effect that “annual increases are to the lesser of CPI or actual”;[63] whereas
[63]Invitation to Make an Offer: Heads of Agreement (15 October 1996), [8].
(b)Mr Erikson of Mallesons prepared a draft lease with a formula that provided for a “lesser of CPI or actual” limit only in the immediately preceding year and otherwise calculated the contribution by reference to the full actual increase in outgoings for every other year (it resembles the pleaded Annexure B, but uses a different calculation and gives a different result);[64] and
(c)in Mr Beer’s summary for the Gandel Management Ltd Board,[65] he provided that Myer would contribute to the increase in variable outgoings by way of both:
(i)a base gross rent (ie. including the variable outgoings) increase; and
(ii)a separate increase provision that broadly resembled Item 8, although not in the same terms.

34. The Gandel Management Limited Board appear to have (at least) had regard to that summary in making decisions on the David Jones lease, in preference to the equivalent HoA[66] and it continued to be presented to the board in subsequent board papers.[67]
[Myer’s emphasis]
[64]Draft Lease (23 October 1996), cl 4.3(b)(ii).
[65]Board Papers, 29 “Gandel Management Limited Item 5.2.4 Chadstone Master Plan”.
[66]Gandel Management Limited, Board Minutes (4 December 1996), 5 referring to Board Papers, 29 “Gandel Management Limited Item 5.2.4 Chadstone Master Plan”.
[67]Gandel Management Limited, Board Papers (18 February 1997), [4.4].

In my view, Myer’s submissions in this respect correctly state the position, for the reasons and on the basis of the material as indicated.
Negotiating and drafting the Agreement for Lease and Lease

In October 1996, the parties were moving from drafting the HoA to drafting the AFL and the Lease.

For Myer, Ms Noonan became involved in the task of preparing a draft AFL and the Lease.[68] For the Plaintiffs, Mallesons was already preparing a draft AFL and a draft of the Lease,[69] and their first draft AFL and draft of the Lease was provided to Myer on 24 October 1996.[70] Myer rejected Mallesons’ draft of the Lease provided to it on 24 October 1996,[71] following which there was a lull in substantive negotiations on the draft of the Lease until the basic form of the Lease was agreed in principle and Myer’s version of the draft of the Lease was available in early April 1997.[72]
[68]Witness Statement of Raymond McNamara (4 August 2017), [14]; see also Letter from Peter Leslie to Gabrielle Noonan (26 November 1996).
[69]Letter from Angelika Dickschen to Andrew Erikson (5 September 1996).
[70]Letter from Angelika Dickschen to Raymond McNamara (24 October 1996).
[71]See Letter from Neville Beer to Raymond McNamara (11 December 1996), [1].
[72]See e.g. Letter from Neville Beer to Raymond McNamara (16 January 1997); Letter from Gabrielle Noonan to Neville Beer (23 January 1997).

In December 1996, Ms Dickschen and Mr Beer became responsible for the drafting process with respect to the AFL and the Lease for the Plaintiffs. Mr Leslie was no longer involved in the preparation of those documents.[73] Mr Beer gave Ms Dickschen instructions and relied on her and external lawyers to undertake the drafting process, his evidence being that he left the drafting to them, but made the commercial decisions.[74] It is the position, as the Plaintiffs submit, that although Mr Beer was questioned with a view to showing that he read the contracts closely, his evidence is clear that he did not. So, for example, Mr Beer was questioned about “his” 16 January 1997 letter to Myer about clauses in the draft of the AFL and said he thought that it was a joint effort with Ms Dickschen.[75] The Plaintiffs observe that Ms Dickschen was not challenged on her evidence that she drafted the entire letter.[76] From the perspective of Myer, it is clear from the evidence that the negotiating team was Mr McNamara and Ms Noonan, and that the former was providing instructions to the latter throughout the drafting process.[77] As the Plaintiffs observe in their submissions, it took some time for a decision to be made as to whether the AFL and the Lease would be in the Myer standard form or in the form drafted by Mallesons.[78]
[73]Witness Statement of Neville Beer (8 May 2017), [74]; Witness Statement of Angelika Dickschen (7 June 2017), [24].
[74]Witness Statement of Neville Beer (8 May 2017), [49], [91]; and Transcript, 123 (Angelika Dickschen).
[75]Letter from Neville Beer to Raymond McNamara (16 January 1997); Transcript, 101–2.
[76]Witness Statement of Angelika Dickschen (7 June 2017), [30].
[77]Witness Statement of Raymond McNamara (4 August 2017), [14].
[78]Plaintiffs’ Closing Submissions (27 November 2017), [99].

On 11 December 1996, Mallesons advised the Plaintiffs that they considered that the Myer forms were inappropriate, with the result that Mr Beer sent Mallesons’ advice to Mr McNamara, with a proposal to overcome the issue.[79] However, in the negotiations in late 1996 and early 1997, the Myer version of the AFL was the basis of the discussion. At this time, there had been no agreement between the Plaintiffs and Myer as to which form of the Lease would be used as the precedent for the Lease.[80] On 5 March 1997, a meeting to negotiate the draft AFL—noting that a common draft of the Lease did not yet then exist—was held between Mr Beer on behalf of the Plaintiffs and Mr McNamara and Ms Noonan on behalf of Myer. One of the agreements recorded in Ms Noonan’s letter to Ms Dickschen was that Myer would have Phillips Fox “bring the [Original Myer Lease] up to 1997 standards”.[81] In other words, the Original Myer Lease would be the precedent for the drafting of the Lease from that point on.
[79]Witness Statement of Neville Beer (8 May 2017), [76]; Letter from Neville Beer to Raymond McNamara (11 December 1996).
[80]Witness Statement of Neville Beer (8 May 2017), [78].
[81]Witness Statement of Neville Beer (8 May 2017), [80]; Facsimile from Gabrielle Noonan to Angelika Dickschen (5 March 1997).

Meanwhile, after the GML board meeting on 4 December 1996, Mr Beer’s priority was getting the draft AFL and the attached draft of the Lease agreed because the viability of Stage 20 at Chadstone depended on starting construction as early as possible.[82] If commencement of construction was delayed, construction costs and finance costs might vary so much that the feasibility of Stage 20 might have to be revisited.[83] Early the following year, on 18 February 1997, a GML board meeting was held and the master plan for Stage 20 was presented,[84] including that Myer would pay outgoings at the “lesser of 80% increases in outgoings over year 1 or CPI”. The board resolved to approve this.[85] This, the Plaintiffs contend, is further clear evidence of the Plaintiffs’ intention.[86] However, for the reasons which follow, I remain of the view that a manifestation of intention this might be, but it is, at best, intention at a point in time during an ongoing negotiation process; a process which must be viewed very much in the context of subsequent events, negotiations and changing and developing intentions of all concerned.
[82]Witness Statement of Neville Beer (8 May 2017), [77].
[83]Witness Statement of Neville Beer (8 May 2017), [77].
[84]Gandel Management Limited, Board Papers (18 February 1997), [4.3]–[4.4].
[85]Witness Statement of Neville Beer (8 May 2017), [79].
[86]Plaintiffs’ Closing Submissions (27 November 2017), [102].

On 3 April 1997, Myer provided the first draft of the Lease.[87] The covering letter said:[88]

The Lease reflects word for word the [Original Myer Lease] except for changes necessary to reflect the Heads of Agreement and other changes to reflect changes in law.

[Plaintiffs’ emphasis].

[87]Letter from Gabrielle Noonan to Angelika Dickschen (3 April 1997).

[88]Letter from Gabrielle Noonan to Angelika Dickschen (3 April 1997).

The new Fourth Schedule of the Lease took the form in which it remained, apart from a change in the formulae which are discussed further in these reasons, at that time providing:[89]
[89]Draft Lease (3 April 1997), Fourth Schedule, 1–2.

For the calculation of the Lessee’s contribution to increases in Variable Outgoings:
1.“Base Accounting Period” means the Accounting Period of twelve months commencing on 1 July following the Commencing Date.
2.“Lessee’s Proportion” means eighty per cent (80%) of that part of the whole of the Increase in Variable Outgoings which bears the same proportion to the whole of the Increase in Variable Outgoings as the Gross Lettable Area of the Demised Premises bears to the Gross Lettable Area of all buildings in the Centre.
3.“Increase in Variable Outgoings” means
(a)in respect of the second full Accounting Period after the Commencing Date (that is the Accounting Period commencing on the second 1^st July falling after the Commencing Date) the lesser of:
(i)the amount by which the Variable Outgoings for that Accounting Period exceed the Variable Outgoings fir [sic] the immediately preceding Accounting Period: and
(ii)an amount equal to
VOx

(b) in respect of each subsequent Accounting Period the lesser of:
(i) the amount by which the Variable Outgoings for that Accounting Period exceed the Variable Outgoings for the immediately preceding Accounting Period; and
(ii) an amount equal to
VOx

where
VO is the Variable Outgoings for the Accounting Period preceding the Accounting Period is [sic] respect of which the calculation is being made
CPI(2) is the Index issued for the quarter ended 31 March during the Accounting Period preceding the Accounting Period is [sic] respect of which the calculation is being made
CPI(1) is the Index issued for the quarter ended 31 March twelve months prior to CPI(2).

…

At this point, it is helpful to consider how the draft formulations with respect to Myer’s contribution to variable outgoings progressed in the parties’ drafts of the Lease between October 1996 and late April 1997; a progression helpfully summarised in the Myer submissions as follows:[90]
[90]Defendant’s Outline of Closing Submissions (28 November 2017), [38].

38.Between October 1996 and late April 1997, the draft formulations describing Myer’s contribution to variable outgoings progressed in the parties’ draft Leases as follows:
(a)on 11 October 1996 Mallesons put forward its first formulation to the plaintiffs, but this was not provided to Myer;[91]
(b)on 23 October 1996 Mallesons put forward a second formulation in a draft Lease,[92] which the plaintiffs sent to Myer on 24 October 2016[93] (“Second Mallesons Formulation”) but Myer rejected that draft lease in its entirety;[94]
(c)on 3 April 1997 Myer sent the plaintiffs a draft Lease containing a third and different formulation, which had been prepared by Phillips Fox[95] (“Third Formulation”); and
(d)on 16 April 1997 Ms Dickschen again sought to press the Second Mallesons Formulation, but this was not accepted by Myer.[96]

[91]Letter from Andrew Erikson to Angelika Dickschen (11 October 1996) attaching a draft lease.

[92]Draft Lease (23 October 1996).

[93]Letter from Angelika Dickschen to Raymond McNamara (24 October 1996).

[94]Letter from Neville Beer to Raymond McNamara (11 December 1996).

[95]Letter from Gabrielle Noonan to Angelika Dickschen (3 April 1997) with attached draft lease.

[96]Facsimile from Angelika Dickschen to Gabrielle Noonan (16 April 1997).

Thus, in early May 1997, or at the end of the preceding month, the evidence indicates that the parties were pressing for competing formulations with respect to Myer’s contribution to variable outgoings. It follows, it is submitted by Myer, that it may reasonably be inferred that the parties were cognisant of the differences between these formulations. The contemporaneous evidence shows that the Plaintiffs’ team of negotiators was closely examining the draft leases, including these different formulations.[97] It was in this context that the Plaintiffs ceased to press the Second Mallesons Formulation and instead drafted and proposed a fourth formulation[98] (“the Fourth Formulation”) that was ultimately proposed to Myer on 30 May 1997,[99] agreed by Myer and ultimately used in Clause 3(b) as executed on 4 September 2001.[100]
[97]Letter of Advice from Andrew Erikson to Angelika Dickschen (14 April 1997) regarding Myer’s draft AFL and Lease; Annotated Analysis of Draft Lease (15 April 1997); Facsimile from Angelika Dickschen to Andrew Erikson (17 April 1997); Facsimile from Andrew Erikson to Angelika Dickschen (17 April 1997); Facsimile from Angelika Dickschen to Andrew Erikson (23 April 2017); Facsimile from Angelika Dickschen to Gabrielle Noonan (24 April 1997); Myer Lease – Summary (24 April 1997); Mallesons Stephen Jaques – File Note (24 April 1997); Myer Agreement for Lease and Lease Summary (9 May 1997); Letter from John Landerer to Angelika Dickschen (12 May 1997); and see also the detailed treatment of this process as set out in the Plaintiffs’ Closing Submissions (27 November 2017), [106]–[121].
[98]Facsimile from Angelika Dickschen to Campbell Paine (30 May 1997) with proposed changes to the draft lease.
[99]Letter from Angelika Dickschen to Campbell Paine (30 May 1997).
[100]Letter from Campbell Paine to Angelika Dickschen (20 June 1997) with attached Draft Lease (20 June 1997); compare with the executed Lease (4 September 2001); and see Plaintiffs’ Closing Submissions (27 November 2017), [122]–[135].

With respect to the drafting and review of the variable outgoings formula in the Lease in May 1997, Myer submits, and in my view correctly, that the evidence is that before it was agreed by the parties the Fourth Formulation was:[101]

(a)drafted by Mr Powderly,[102] who was “in charge of outgoings for all centres” for the Plaintiffs;[103]
(b)reviewed by Ms Dickschen of the Plaintiffs,[104] whose evidence was that she would have read the Fourth Schedule to the Lease at that time and would have made some comment if she had seen an error;[105]
(c)reviewed by Mr Erikson of Mallesons;[106] and
(d)reviewed by Mr Beer of the Plaintiffs.[107]

[101]Defendant’s Outline of Closing Submissions, (28 November 2017), [41].

[102]Memorandum from Paul Powderly to Angelika Dickschen (22 May 1997).

[103]Witness Statement of Angelika Dickschen (7 June 2017), [45.1]–[45.3]. The role of Gandel Asset Management Pty Ltd is explained in Witness Statement of Neville Beer (8 May 2017), [10.2].

[104]Facsimile from Angelika Dickschen to Andrew Erikson (23 May 1997) attaching Myer Agreement for Lease and Lease Comments (23 May 1997); see also Handwritten notes of Angelika Dickschen (22–23 May 1997) – note that Angelika Dickschen’s memorandum reveals a close reading of the amended Lease, picking up on cross-referencing problems and clauses that do not work as intended.

[105]Transcript, 133 (Angelika Dickschen).

[106]Facsimile from Angelika Dickschen to Andrew Erikson (23 May 1997); Myer Agreement for Lease and Lease Comments (23 May 1997). The handwritten notes on the latter document are Erikson’s notes, see Transcript, 140–1 (Andrew Erikson); see generally Transcript, 136, 137–8, 139–40 (Andrew Erikson).

[107]Memorandum from Angelika Dickschen to Neville Beer (26 May 1997); attaching Draft Letter from Angelika Dickschen to Campbell Paine (26 May 1997).

The evidence also shows that the draft was also provided to Mr John Gandel and Mr Clive Appleton of the Plaintiffs, which showed the changes to be made to effect the Fourth Formulation marked up on the document next to cl 3(a)(ii), but not cl 3(b)(ii).[108] Mr Beer gave evidence which, in my view, was properly described as somewhat evasive, about his role in checking the formula at this time.[109] Ms Dickschen’s evidence was that she received instructions from Mr Beer either in writing or orally in a face-to-face meeting[110] and that the letter she then sent to Phillips Fox with the new formula for cl 3(a)[111] would have been in accordance with Mr Beer’s instructions.[112] Markings on the retained documents, such as handwritten ticks next to the Fourth Formulation,[113] and Mr Erikson’s handwritten notes alongside the references to the formula in Ms Dickschen’s memorandum[114] appear to confirm, in my view, that at least some of these individuals gave the clause specific consideration and approved it.[115] During this process, no one made any reference to Item 8 (either by name or by description), nor sought to compare the Fourth Formulation with Item 8, nor queried with others whether it reflected Item 8. The move to the Fourth Formulation also represented the Plaintiffs’ abandonment of the Second Mallesons Formulation, which was the formulation closest to the Plaintiffs’ pleaded case in this proceeding (as set out in the Annexure to these reasons), and which had been twice rejected by Myer.[116] For these reasons, the contentions by the Plaintiffs with respect to these dealings and negotiations in relation to these variable outgoings provisions[117] should be rejected, particularly the following somewhat gratuitous observation made in these submissions which, as indicated, is simply not supported by the evidence:[118]

136.Had the parties agreed on 12 May 1997 or thereafter to abandon calculating increases in variable outgoings by reference to the “base year” in favour of the “preceding year”, in her 30 May 1997 letter an experienced property lawyer like Dickschen would have asked Paine to delete Clauses 1 and 5 in the Fourth Schedule of this draft. The Court should find there was no such agreement to abandon.

[108]Memorandum from Angelika Dickschen to John Gandel and Clive Appleton (6 June 1997), attaching Draft Agreement for Lease (20 May 1997) and Annotated Draft Lease (20 May 1997) see especially the Fourth Schedule.

[109]Transcript, 103 (Neville Beer).

[110]Transcript, 133 (Angelika Dickschen).

[111]Facsimile from Angelika Dickschen to Campbell Paine (30 May 1997).

[112]Transcript, 133, (Angelika Dickschen).

[113]See e.g. Facsimile from Angelika Dickschen to Campbell Paine (30 May 1997), 3.

[114]Myer Agreement for Lease and Lease Comments (23 May 1997). The handwritten notes are Mr Erikson’s notes, see Transcript, 140–1 (Andrew Erikson).

[115]Cf Transcript 252.

[116]Letter from Angelika Dickschen to Raymond McNamara (24 October 1996) attaching Draft Lease (23 October 1996). On 3 April 1997, Myer’s response proposes a different formula (see Draft Lease (3 April 1997), Fourth Schedule). On 16 April 1997, Ms Dickschen again “suggests” the Second Mallesons Formulation, see Facsimile from Angelika Dickschen to Gabrielle Noonan (16 April 1997) (and attachments); Myer responds and accepts changes to other clauses, however it persists with its formula regarding variable outgoings.

[117]Plaintiffs’ Closing Submissions (27 November 2017), [134]–[136].

[118]Plaintiffs’ Closing Submissions (27 November 2017), [136].

The evidence of subsequent communications between the parties and the state of the draft documentation does not, in my view, suggest a common intention to implement Item 8 but, rather, is demonstrative of a clear intention by both parties to be bound by the AFL and the Lease as drafted. It is to the detail of these communications and documentation to which I now turn.

On 2 July 1997, the report to the GML board was that the AFL remained unsigned.[119] The Board was not told that management had decided to abandon Item 8 in the HoA in favour of calculating increases in variable outgoings by reference to the preceding year. Whilst this may have been the position at that stage, that is certainly not the end of the story having regard to subsequent events.
[119]Witness Statement of Neville Beer (8 May 2017), [97].

Also on 2 July 1997, Mr McNamara confirmed that Myer had received its board’s approval for the new store at Chadstone “in accordance with the terms set out in the Draft Agreement for Lease”, which annexed the Lease.[120] Mr McNamara’s unchallenged evidence was that by this letter he meant the board of Coles Myer Limited (“CML”) had approved the draft of the AFL, including the Lease annexed to it, as it existed at 2 July 1997.[121]
[120]Facsimile from Raymond McNamara to Neville Beer (2 July 1997).
[121]Witness Statement of Raymond McNamara (4 August 2017), [57].

Although the relevant Myer board papers can no longer be located,[122] Mr McNamara’s unchallenged evidence was that:[123]

A heads of agreement for a specific store would never actually be approved because the only documents ultimately put to the Board [of CML] and Mancom [which was the management committee of Myer] for approval would be a lease or agreement for lease.

[122]Witness Statement of Jonathan Garland (4 August 2017), particularly at [5]–[11].

[123]Witness Statement of Raymond McNamara (4 August 2017), [24].

Since the final GML board approval for Stage 20 at Chadstone given on 7 May 1997 was conditional upon the AFL with Myer being executed and that construction of Stage 20 had to start in July or August 1997, the AFL needed to bind Myer by July or August 1997. Mr Beer asked Ms Dickschen to get advice from Mr Erikson as to whether Myer was bound by the combination of the draft AFL and Mr McNamara’s 2 July 1997 letter.[124] Mr Erikson advised, in letters dated 10 and 17 July 1997, that he was not satisfied that Myer was bound. There was further correspondence on 11, 16 and 17 July 1997 between Mr Beer and Mr McNamara about the AFL and whether Myer was bound by it.[125] In any event, on 16 July 1997, Mr McNamara wrote to Mr Beer confirming that:[126]

…the terms and conditions of the Agreement for Lease (including annexed Lease) as per Phillips Fox’s draft dated 20 June 1997 represent the agreement between the Lessor named thereon and Myer Stores Ltd.

Also in July 1997, the variable outgoings mechanism within the Lease was further varied, to incorporate a Base Variable Outgoings component.[127] This process of redrafting would likely have required the variable outgoings mechanism in the Lease to be revisited to some degree.[128] There was no suggestion that any concern was otherwise raised regarding the variable outgoings clause at that time. Moreover, the concept of a Base Variable Outgoings component is not to be found in any of the drafts of the HoA, which, in my view, further indicates that the draft HoAs provided only limited guidance to the parties in their drafting of the AFL and Lease.

[124]Witness Statement of Neville Beer (8 May 2017), [99].

[125]Witness Statement of Neville Beer (8 May 2017), [99] and documents referred to therein.

[126]Facsimile from Raymond McNamara to Neville Beer (16 July 1997).

[127]Witness Statement of Angelika Dickschen (7 June 2017), [51] and the documents cited therein.

[128]See e.g. Facsimile from Angelika Dickschen to Gabrielle Noonan (14 August 1997).

On 19 August 1997 Ms Noonan sent Ms Dickschen “the Agreement for Lease (in triplicate) executed by Myer Stores Ltd” for execution by the lessors.[129] However, before the Agreement for Lease could be executed by the lessors, it was a requirement for:[130]

…senior management like me [Neville Beer] to agree that it was in order to sign the AFL and also required a certification letter from the external lawyers that the AFL accorded with the instructions which the lawyers had been given. In the case of the AFL, the certification letter was to come from Erikson...

Although Mr Beer’s evidence as to whether he provided that agreement was somewhat evasive,[131] he did concede that he would not have departed from his usual practice in this regard.[132]

[129]Letter from Gabrielle Noonan to Angelika Dickschen (19 August 1997), with attachments including the Lease.

[130]Witness Statement of Neville Beer (8 May 2017), [105].

[131]Transcript, 83.

[132]Transcript, 83–4.

The evidence of events which follow is that after Mr Erikson of Mallesons corrected some drafting errors in the AFL he had identified in his 25 August 1997 fax to Mr Campbell Paine of Phillips Fox, the Mallesons’ certification letter dated 8 September 1997 was provided to the Plaintiffs. The letter said:[133]
[133]Letter from Andrew Erikson to the directors of Perpetual Trustees Australia Ltd and Bridgehead Pty Ltd (8 September 2017).

I have reviewed the engrossed form of the Agreement for Lease between your companies and Myer Stores Limited with respect to Chadstone Shopping Centre and also the accompanying Lease.
The Agreement for Lease and Lease:
(a)have been engrossed (following the incorporation of hand written amendments) in accordance with my instructions;
(b)reflect the commercial terms of the transaction agreed;
(c)contain no unusually onerous or objectionable provisions which are inconsistent with my instructions;
(d)contain limitation of liability clauses for the benefit of the trustee; and
(e)the Agreement for Lease is in order for execution.

[Plaintiffs’ emphasis]

In relation to Mr Erikson’s evidence, the Plaintiffs say that although he cannot recall comparing the HoAs with the AFL and the Lease, he does not believe that he did so. That, the Plaintiffs submit, must be so, because he was never given the 26 November 1996 HoA. He said that he obtained instructions to enable him to write the letter, which, it is inferred, must have come from Ms Dickschen. That is likely, the Plaintiffs contend, as Mr Erikson was only sporadically involved and not involved in commercial discussions.[134]
[134]Transcript, 143–4.

However, in my view, the position with respect to Mr Erikson’s evidence is quite straightforward and, as submitted by Myer, is as follows:[135]
[135]Defendant’s Outline of Closings (28 November 2017), [55].

Mr Erikson’s evidence was straightforward:[136]
(a)he provided the certification letter, including certifying that the AFL and Lease reflected the commercial terms of the transaction agreed;
(b)he believed each of the matters contained in his letter to be true when he wrote it;
(c)he would have certified that the AFL and Lease reflected the commercial terms on the basis of instructions;
(d)he is confident that he had those instructions at the time of providing the certification; and
(e)he did not see any need to compare the terms of the AFL and the Lease with any draft HoA because the draft HoAs were not provided to him on the basis that they contained the terms of the deal.

[136]Transcript, 144 (Andrew Erikson).

In my view, the objective evidence supports Mr Erikson’s evidence as to the accuracy of his certification. Before certifying the AFL and the Lease, he first required several corrections to be made;[137] the nature and detail of those corrections confirms that he undertook the certification task diligently. Similarly, Ms Dickschen confirmed in her evidence that she, too, was at that time satisfied that the documents were in a proper state to be executed by the Plaintiffs.[138]
[137]Facsimile from Andrew Erikson to Campbell Paine (25 August 1997).
[138]Transcript, 135.

By 15 September 1997, the AFL was executed accordingly,[139] though at least one copy is dated 6 November 1997.[140]
[139]Facsimile from Angelika Dickschen to Campbell Paine (15 September 1997).
[140]Agreement for Lease: Perpetual Trustees Australia Limited, Bridgehead Pty Ltd and Myer Stores Limited (6 November 1997), Schedule 1.

The execution of the AFL had the effect that, even absent execution of the Lease, the Lease would be binding on the parties from the Commencement Date. In this respect, the AFL provided, in clause 8.3, that:

On and from the Commencing Date…the Lessee and the Lessor shall each respectively be bound by…the Lease as if the same were duly completed and duly executed and delivered by both parties…

Mr Stephen Bott, who signed the AFL for Myer, was available for cross examination.[141] There is no suggestion, however, that any of those who executed the AFL intended anything other than to bind the parties to the terms set out therein, which included the terms of the Lease. Those executing the AFL included Mr Powderly, who was the Plaintiffs’ employee responsible for outgoings at all the centres.[142] As Myer observes, the Plaintiffs have never pleaded that there was any error in, nor sought rectification of, the executed AFL. The significance of this is, however, not clear having regard to the position that, as submitted by the Plaintiffs, the AFL is now performed and thus “spent” and so the Lease is the only element of this documentation to which rectification now has any possible relevance or effect.[143]
[141]Witness Statement of Stephen Bott (4 August 2017). The Plaintiffs elected not to cross-examine him.
[142]Witness Statement of Angelika Dickschen (7 June 2017), [45.1]–[45.3]. The role of Gandel Asset Management Pty Ltd is explained in Witness Statement of Neville Beer (8 May 2017), [10.2]. See the signature on page 47 of the Agreement for Lease: Perpetual Trustees Australia Limited, Bridgehead Pty Ltd and Myer Stores Limited (6 November 1997).
[143]See Transcript 261–2.

The execution and implementation of the Lease

The Lease was executed on 4 September 2001. In relation to its execution, the Plaintiffs submit that cll 8 and 9 of the AFL obliged the parties, the Plaintiffs and Myer, to complete and execute the draft Lease scheduled to the AFL when Stage 20 of the Chadstone redevelopment was finished. The Plaintiffs contend that the parties’ common intention could not change after the AFL was executed. Myer’s signatories to the Lease, Mr Philip Smith and Mr Bruce Fethers, were available for cross-examination;[144] but were not cross-examined. It is contended by Myer that, nevertheless, there is no suggestion that those who executed the Lease intended anything other than to bind the parties to the terms set out therein. As has been observed previously, the Plaintiffs do not seek to rectify any provisions of the AFL which, as has been explained, included the draft Lease which was attached to the AFL as a schedule. In other words, the position of the Plaintiffs appears, quite clearly, to be that the provisions and any relevant parties’ intentions were effectively “cast in stone” upon the execution of the AFL.
[144]Witness Statement of Phillip Smith (3 August 2017); Witness Statement of Bruce Fethers (17 November 2017). The Plaintiffs elected not to cross-examine them; and see Transcript, 263.

In spite of the delay in executing the Lease, the new Lease term granted preceded the execution date by some years. Pursuant to cl 8.3 of the AFL, the Commencement Date of the Lease is 23 November 1998. There was no suggestion, however, that the actual, earlier commencement date of the Lease has any bearing on the issues the subject of this proceeding.

The variable outgoings payable until 30 June 2000 was the Base Variable Outgoings Payment under cl 3.16 of the Lease. Increases in variable outgoings from July 2000 were those calculated under cl 3(a) of the Fourth Schedule to the Lease. Clause 3(b) did not operate until after the Lease was executed.

Returning to the position contended for by the Plaintiffs, namely, that the parties’ common intention could not change after the AFL was executed—a position from which Myer does not dissent—reference should be made to events between October 1999 and September 2001 which are specifically highlighted in some detail in the Plaintiffs’ submissions:[145]
[145]Plaintiffs’ Closing Submissions (27 November 2017), [164]–[167].

164.On 27 October 1999 GML became responsible entity for the GRT[146] (in 1999 the managed investment scheme provisions – Chapter 5C – of the Corporations Law commenced and the GST legislation was enacted). Perpetual retired as trustee of the GRT.[147] GML appointed Perpetual as custodian to hold the GRT’s assets as agent for GML.[148]
[146]Witness Statement of Mark Feikema (2 June 2017), [11]. Constitution of the Gandel Retail Trust; Historical Company Extract for Vicinity NVN Trust (25 September 2017), item 5100.
[147]Gandel Retail Trust – Trustee’s Retirement Notice (22 June 1999).
[148]Gandel Retail Trust Custody Agreement (10 September 1999).
165.From late 1999 to 2001, after the construction of Stage 20 was completed, the Lease had to be completed (e.g. commencing date and commencing rent inserted) and executed. The form of Lease attached to the AFL was amended to:
165.1include a GST clause (which is Clause 18 of the executed Lease);
165.2amend various definitions, including Perpetual’s limitation of liability provisions resulting from the change in GRT’s structure and include provisions limiting GML’s liability (which is Clause 19 of the executed Lease);
165.3include the commencing date, commencing rent and the “Base Variable Outgoings Payment” in the First Schedule.[149]

166.On 4 September 2001 the Lease was executed by Perpetual, GML, Bridgehead and Myer.[150] Mark Feikema, a solicitor employed by the Gandel Group who had replaced Dickschen, oversaw the amendments referred to in the preceding paragraph. However, he was not asked to advise about recovery of variable outgoings and just assumed that the draft Lease attached to the AFL correctly recorded the parties’ agreement.[151]
167.On 3 October 2002 Vicinity (then known as Commonwealth Managed Investments) replaced GML as responsible entity of the GRT (which changed its name to “CFS Gandel Retail Trust”).[152] Under sections 601FS(1) and 601FT of the Corporations Act 2001 (Cth), GML’s rights with respect to the Lease became the rights of Vicinity.

For the sake of completeness, it is observed that there is no suggestion on the part of the Plaintiffs that this process of dealings and communications and amendments to the provisions of the draft Lease prior to its execution on 4 September 2001 had any effect on the proposition that the parties’ common intention with respect to the Lease could not change after the AFL was executed; at least insofar as is relevant to the present proceedings.

[149]Witness Statement of Mark Feikema (2 June 2017), [16].

[150]Lease between Perpetual Trustees Australia Limited, Bridgehead Pty Ltd, Gandel Management Limited and Myer Stores Limited (4 September 2001).

[151]Witness Statement of Mark Feikema (2 June 2017), [17].

[152]Deed of Retirement and Appointment of a Responsible Entity: Gandel Retail Trust (2 October 2002); Historical Company Extract for Vicinity NVN Trust (25 September 2017), item 5107.

Since the execution of the Lease, the outgoings have been estimated, invoiced,[153] paid, checked, confirmed and adjusted by the parties in accordance with cl 3(b) of the Fourth Schedule to the Lease.[154] The Plaintiffs agree that between 2001 and September 2012, the parties performed the Lease according to its terms.[155] Particularly, the Plaintiffs observe that, relevantly, under cl 4.6(b) of the Lease, the Plaintiffs’ calculated estimates of variable outgoings before a financial year commenced (“Estimates”) and notified Myer of them, and under cl 4.6(c) they calculated the necessary adjustment after that year had concluded and gave Myer a statement of the adjustment (“Adjustment Statements”). Myer respectively paid the amounts calculated in accordance with cl 4.6(b) and (c). As required by the provisions of the Fourth Schedule of the Lease, the increases in variable outgoings were calculated against the preceding year, not the base year.
[153]Witness Statement of Jane Pendlebury (4 August 2017). See also Annotated Actual Outgoings for Financial Year ending 30 June 2008 (31 October 2008); Annotated Actual Outgoings for Financial Year ending 30 June 2010 (11 November 2010).
[154]Witness Statement of Jane Pendlebury (4 August 2017). See also Annotated Adjustment Note for Outgoings in Year Ending 30 June 2007 (20 September 2007); Annotated Adjustment Note for Outgoings in Year Ending 30 June 2006 (28 September 2006).
[155]Plaintiffs’ Closing Submissions (27 November 2017), [168].

The Plaintiffs say that typical of the suite of documents passing between the parties are those for the year ended 30 June 2007,[156] which comprised:

(a)the schedule calculating the budget estimate;[157]
(b)the Owners 15 September 2007 letter and enclosed audit report on the actual outgoings incurred;[158]
(c)the Adjustment Statement;[159] and
(d)a GST invoice for the adjustment.[160]

On 20 June 2011, a box of Myer documents, some concerning the Myer Chadstone store between 1996 and 2001, was destroyed.[161]

[156]Plaintiffs’ Closing Submissions (27 November 2017), [169].

[157]Chadstone Budget – Outgoings – Myer (2006/07).

[158]Letter to Myer from Natalie Andreadis of Colonial First State Property Management (15 September 2017) attaching Independent Audit Report of Ernst & Young (8 August 2007) and Schedule of Recoverable Outgoings for year ended 30 June 2007.

[159]Chadstone Myer Actual Outgoings (2006/07).

[160]Annotated Adjustment Note for Outgoings in Year Ending 30 June 2007 (20 September 2007).

[161]Witness Statement of Jonathan Garland (4 August 2017), [5]–[10].

The Plaintiffs also monitored the recovery of variable outgoings for their own accounting and budgeting purposes, applying the formula in cl 3(b).[162] In my view, as submitted by Myer, the Plaintiffs’ accounting records clearly and readily showed:

(a)the extent of their recovery of variable outgoings from Myer;[163]
(b)the rate at which Myer’s contribution to variable outgoings was expected to grow over the next 5 years (well below inflation);[164]
(c)that Myer’s contribution to variable outgoings was expected to grow at a much slower rate than David Jones’;[165] and
(d)that Myer contributed less to variable outgoings than comparable tenants such as David Jones, with the gap expected to widen over time. For example, Myer was forecast to contribute $2,116,000 for “Operating Recoveries” in 2011 while David Jones would contribute $2,964,000[166]—despite the fact that David Jones’ premises were smaller than Myers’ premises.[167]

This information was available both in detailed breakdowns[168] and in “major and specialty tenant splits” which made for easy comparison with other major tenants.[169]

[162]Transcript, 171 (Ashley Brown).

[163]Chadstone Consolidated Budget for the Years Ending 30 June 2007 to 30 June 2011: Majors Summary, 3, 4.

[164]Chadstone Consolidated Budget for the Years Ending 30 June 2007 to 30 June 2011: Majors Summary, 3, 4.

[165]Chadstone Consolidated Budget for the Years Ending 30 June 2007 to 30 June 2011: Majors Summary, 3, 4.

[166]Chadstone Consolidated Budget for the Years Ending 30 June 2007 to 30 June 2011: Majors Summary, 3, 4.

[167]Transcript, 117 (Neville Beer).

[168]See e.g. Chadstone Consolidated Budget for the Years Ending 30 June 2007 to 30 June 2011: Majors Summary; Chadstone Consolidated Budget for the Years Ending 30 June 2008 to 30 June 2012: Majors Summary; Chadstone Consolidated Budget for the Years Ending 30 June 2009 to 30 June 2013: Majors Summary; Chadstone Consolidated Budget for the Years Ending 30 June 2010 to 30 June 2014: Majors Summary.

[169]See e.g. Chadstone Budget 2006/07 Recovery Profile - Major & Specialty Tenant Split; Chadstone Budget 2007/08 Recovery Profile - Major & Specialty Tenant Split; Chadstone Budget 2008/09 Recovery Profile - Major & Specialty Tenant Split; Chadstone Budget 2009/10 Recovery Profile - Major & Specialty Tenant Split; Chadstone Budget 2010/11 Recovery Profile - Major & Specialty Tenant Split.

None of the information to which reference has been made regarding the operation of cl 3(b) of the Fourth Schedule to the Lease caused any apparent concern to, or even comment by, the Plaintiffs or by the employees responsible for the tracking and recovery of variable outgoings. In particular:

(a)there was no difficulty in giving effect to the Lease;[170] consequently
(b)no one raised any difficulty in interpreting and applying Clause 3(b);[171] and
(c)no one suggested that Clause 3(b) was in any way problematic or uncommercial.[172]

Moreover, Mr Beer’s evidence on behalf of the Plaintiffs was that the level of Myer’s contribution to variable outgoings under cl 3(b), as shown in the rolling 5-year budgets, would not have caused him any concern.[173] Similarly, Mr Ashley Brown’s evidence was that a major or specialty tenant having a very good deal on what it contributed to outgoings was not in itself a cause for concern.[174]

[170]Transcript, 171 (Ashley Brown).

[171]Transcript, 170–1.

[172]Transcript, 153 (Ashley Brown).

[173]Transcript, 118.

[174]Transcript, 153–4.

Plaintiffs’ “discovery” of the “Mistake”

The Plaintiffs’ claim did not arise from a sudden understanding of the terms of cl 3(b) of the Fourth Schedule to the Lease; provisions which had been read, understood and applied numerous times over the preceding 20 years or so without any concern. Nor did it arise from the comparison of the various other tenants’ contributions to outgoings at Chadstone; a comparison which had also long been available. The issue only appeared problematic in the peculiar circumstances of a “mistake” by the Plaintiffs’ property analyst, Ms Melissa Walsh.[175] Mr Brown accepted that, had Ms Walsh not made that mistake, the issue regarding Myer’s contribution to variable outgoings would probably not have arisen.[176]
[175]Witness Statement of Ashley Brown (23 November 2017), [22]–[32]; esp [24]–[25]; Transcript, 154–5.
[176]Transcript, 171.

So much Myer submits in relation to the alleged “Mistake”. As to the Plaintiffs’ position, they submit:[177]

171.In about October 2012 the path to the Owners discovering the Mistake commenced with Ashley Brown (Brown) recognizing a discrepancy.[178] Brown took the matter up with David Seward (Seward), a solicitor employed by one of the Owners. Seward was to obtain the original files.[179] It was Seward who discovered the error.[180] The Mistake was identified in the management Financial Issues Summary for April 2013,[181] the commentary in which was drafted by Seward.[182]

[177]Plaintiffs’ Closing Submissions (27 November 2017), [171].

[178]Witness Statement of Ashley Brown (23 November 2017), [22]–[32].

[179]Witness Statement of Ashley Brown (23 November 2017), [31].

[180]Transcript, 168.

[181]Appendix 2 to Financial Issue Summary (April 2013): Chadstone Myer Lease Outgoings Clause.

[182]Transcript, 168.

Having regard to these matters, and more generally, the evidence does not, in my view, support the Plaintiffs’ position with respect to the Mistake. Rather, the position which emerges from the evidence at trial is that Mr Brown and Mr David Seward appear to have formed the view that there was a “mistake” in the Lease, without asking anyone who knew anything about the preparation of the Lease.[183] Mr Seward was, and still is, an in-house lawyer of Vicinity Centres,[184] which manages Chadstone on behalf of the Plaintiffs.
[183]Transcript, 158 (Ashley Brown).
[184]Transcript, 168 (Ashley Brown).

Moreover, Mr Beer, was not asked if there was a mistake.[185] Rather, in 2014, he was told that there was a mistake in the Lease.[186] In my view, the submissions by Myer with respect to his evidence are correct; namely, that his reconstruction of his recollection from documents before which he had only a general recollection[187] occurred in that context.[188]
[185]Transcript, 158 (Ashley Brown).
[186]Transcript, 107, 118 (Neville Beer).
[187]Witness Statement of Neville Beer (8 May 2017), [18].
[188]Transcript, 118 (Neville Beer).

One might have thought that parties in the position of the Plaintiffs would—having formed the view that there had been what is, on their case, a significant “mistake” with respect to the provisions of the Lease—bring the matter to the tenant’s, Myer’s, attention with some expedition and explanation. That is, however, not what occurred, as is clear from the Plaintiffs’ own submissions:[189]
[189]Plaintiffs’ Closing Submissions (27 November 2017), [172]–[181]; and see also [182]–[187] with respect to correspondence etc with Myer in relation to the sums with respect to variable outgoings which the Plaintiffs sought to recover.
172.The Owners gave a “medium” rating to the chances of recovery from Myer in the “Risks & Opportunities” section of their rolling 5-year budget.[190] From time to time the rating was considered by Brown’s team, as was the rough quantification of the recovery.[191] Because the consideration was in the “Risks & Opportunities” section of the budget, accuracy was not as important.[192] The quantification was made without reference to the rectified lease.[193] The final calculation (being the one in the writ) was made with legal assistance from Seward.[194]
173.The Owners deferred raising the Mistake with Myer because they anticipated Myer saying that Myer had to give its consent to Stages 38 and 40 of Chadstone as a means of Myer avoiding the claim.[195] As matters transpired, there was no requirement for consent[196] and no carpark issue.[197]
174.Obviously, the whole point was to avoid giving Myer the opportunity to avoid liability in respect of variable outgoings by trading that off for its consent to the carpark issue. Myer has not provided any evidence that it would not have done precisely that.
175.Myer has elected to call absolutely no evidence about Stages 38 and 40 of Chadstone.
176.Once the management decision was made to proceed with the claim in mid-2015, external legal advice needed to be obtained by the Owners.[198]
177.On 2 December 2015 the Owners sent a letter to Myer informing Myer of the Mistake and requesting Myer’s co-operation to correct the Mistake.[199] The letter included the final calculation.
178.On 24 December 2015 the Owners sent Myer a letter attaching invoices for the years ended 30 June 2000 to 2015 (2015 Demands) for the Shortfall. The letter requested payment of the Shortfall.[200]
179.On 12 January 2016 the Owners emailed Myer invoices replacing those sent on 24 December 2015.[201]
180.On 3 February 2016 Myer sent a letter to the Owners denying that the Mistake occurred.[202]
181.On 11 February 2016 this proceeding commenced but the Writ was not served.
[190]E.g. Budget FY16: 2016–20 Chadstone: Risks & Opportunities.
[191]Transcript, 161.
[192]Transcript, 179.
[193]Transcript, 161.
[194]Transcript, 162.
[195]See Email from Martin James to Ashley Brown and David Seward (29 May 2014).
[196]Transcript, 109.
[197]See Email from Martin James to Neville Beer, Mark Monagle and David Seward (13 April 2015).
[198]Transcript, 114–5.
[199]Letter from Jo Turner to Timothy Clark (2 December 2015).
[200]Letter from Jo Turner to Timothy Clark (24 December 2015).
[201]Email from Diane Hall to Timothy Clark, David Seward and Jo Turner (12 January 2016); Duplicate Adjustment Note from Vicinity to Myer (24 December 2015); Adjustment Note from Vicinity to Myer (24 December 2015).
[202]Letter from Timothy Clark to Jo Turner (2 February 2016).

[E]ven though on authority and principle the traditional equitable barriers to relief do not apply to declaratory relief as such, circumstances that may engage traditional equitable barriers to relief may be relevant to the wide discretion whether to grant or refuse declaratory orders under the court's statutory powers.

[351]Peter W Young, Clyde Croft and Megan Louise Smith, On Equity (Lawbook Co, 2009), [17.20].

[352]P W Young, Declaratory Orders (Butterworths, 2^nd ed, 1984), 5 [104] referring to Anderson, Actions for Declaratory Judgments (Harrison Co, Atlanta, Georgia, 2^nd ed, 1951); cf Ambridge Investments Pty Ltd (in liq) (rec apptd) v Baker [2010] VSC 59, [61] (Vickery J).

[353]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581–2. Section 36 of the Supreme Court Act 1986 states that “A proceeding is not open to objection on the ground that a merely declaratory judgment is sought, and the Court may make binding declarations of right without granting consequential relief”.

[354]J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexis Butterworths, 5^th ed, 2015), [19.315].

In the present circumstances, Myer submits that the circumstances relevant to the equitable defence of acquiescence, which is discussed in the preceding reasons, are relevant to the discretion whether or not to grant declaratory relief in favour of the Plaintiffs. It is said that this is particularly so since the declaratory relief sought is equivalent to rectification and hence equivalent to an equitable remedy. Apart from relying in this respect on the contents of the prayer for relief in the Plaintiffs’ claim, it is said that this is also clear from the reliance by the Plaintiffs on the case of Westpac Banking Corporation v Tanzone in their outline of opening submissions; the principle in that case having been referred to as “contractual rectification”.[355]
[355]Mainteck (2014) 89 NSWLR 633 at 661 [115] and see the heading immediately before that paragraph.

For the preceding reasons with respect to the acquiescence defence sought to be relied upon by Myer, I am of the view that the Court’s discretion with respect to the grant of declaratory relief in favour of the Plaintiffs should not be refused or in any way constrained as sought by Myer—assuming, of course, that the position that the Court had reached with respect to the Plaintiffs’ claim, either on the basis of construction or rectification, meant that they had been successful. As the Plaintiffs’ claim has failed on both bases, the issue of declaratory relief does not arise; but, in any event, if it did, it would not be refused or constrained.

Account stated

An account stated is a cause of action that exists at common law. There are numerous statements of what constitutes an account stated contained in old English and Australian authority. These statements note two forms of account stated. Jordan CJ’s statement in Commonwealth DairyProduce Equalisation Committee Ltd v McCabe[356] is often referred to in Australian cases as stating the two forms of account stated. Jordan CJ said as follows:[357]

An action for money found to be due on accounts stated may take one of two forms. It is always essential in such an action that there should have been before action brought an admission by the defendant or his agent to the plaintiff or his agent that the sum claimed is due by the defendant to the plaintiff. But this admission may be so framed as to be merely an acknowledgment of indebtedness, in which case although it supplies evidence of the debt the evidence may be rebutted by proof that no debt in fact existed. Or it may take the form of an account stated and agreed to between two parties, by which it is in effect agreed that the items on both sides shall be set off and the balance paid. In the latter type of case, the agreement for set-off supplies good consideration for the promise to pay the amount of the balance; and the account stated is itself an agreement for valuable consideration constituting a cause of action, and not merely evidence of liability.
[Myer’s emphasis; citations omitted]

[356](1938) 38 SR (NSW) 397.

[357](1938) 38 SR (NSW) 397 at 401. See also Lewis v Wilson (1997) 42 NSWLR 228 at 230; Lewis v Lamb [2011] NSWSC 873, [18]; Steiner v Strang [2016] NSWC 9, [37]–[38], [40]–[41]; Bank of NSW v Brown (1983) 151 CLR 514 at 535; and see Middleditch v Ellis (1848) 2 Exch 623; 154 ER 640.

Myer relies upon the second type of account stated, which is often called a “real account stated”.[358] For a real account stated, “several items of claim are brought into account on either side, and, being set against each other, a balance is struck, and the consideration for the payment of the balance is the discharge of the items on each side”.[359] A real account stated is a contract supported by consideration;[360] which has been said to belong “to the field of contract”.[361]
[358]Laycock v Pickles (1863) 4 B&S 497 at 506; 122 ER 546 at 549, cited in Hampton Gold Mining Areas Ltd v Metals Exploration Ltd (1995)17 WAR 30 at 38, 46; Bank of NSW v Brown (1983) 151 CLR 514 at 535; Executor Trustee & Agency Co of South Australia Ltd v Thompson (1919) 27 CLR 162 at 170.
[359]J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexis Butterworths, 5^th ed, 2015), [26-105] quoting Laycock v Pickles (1863) 4 B&S 497 at 506; 122 ER 546 at 549.
[360]Executor Trustee & Agency Co of South Australia Ltd v Thompson (1919) 27 CLR 162 at 170; Commonwealth Dairy Produce Equalisation Committee Ltd v McCabe (1938) 38 SR (NSW) 397 at 401; Lockyer v Macready [1965] NSWR 801 at 819–20; Lewis v Lamb [2011] NSWSC 873 at [18].
[361]Hampton Gold Mining Areas Ltd v Metals Exploration Ltd (1995) 17 WAR 30 at 44.

There must, however, be mutual credits and debits for a “real account stated” otherwise there is no consideration.[362] If “the whole accounting is to be rendered by one party to the other”, there is no consideration.[363] The issue of mutual credits and debits was addressed by Brennan J in Bank of NSW v Brown:[364]

It is not necessary that there should be debts or claims on both sides: all that is required is that there be cross items of account the liability for which and the credit for which are discharged by the account stated.

[362]J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexis Butterworths, 5^th ed, 2015), [26-110].

[363]Anglo-American Asphalt Co v Crowley Russel & Co [1945] 2 All ER 324 at 331.

[364](1983) 151 CLR 514 at 536.

An account stated may be pleaded as a defence provided the defendant has paid the amount which it alleges is owing to the plaintiff. A defensive account stated is a “species of accord and satisfaction”.[365]
[365]J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexis Butterworths, 5^th ed, 2015), [26-110]; Hampton Gold Mining Areas Ltd v Metals Exploration Ltd (1995) 17 WAR 30 at 44, 46.

Myer, prefaces its submissions by reference to cl 4.6 of the Lease, which it summarises in the following terms:[366]
[366]Defendant’s Outline of Closing Submissions (28 November 2017), [169].

(a)increases in variable outgoings are to be paid for each Accounting Period. An Accounting Period is a financial year.
(b)the increases in variable outgoings are to be paid in advance of the final determination of the increase for a particular Accounting Period. These advance payments are to be made monthly and are determined on the basis of an estimate provided by the Lessor.
(c)the final amount that the Lessee must pay for the increase in variable outgoings for an Accounting Period is to be determined by a setting off arrangement. This is referred to in clause 4.6(c) as follows:
… if the amount of the Lessee’s required contribution to increases in Variable Outgoings calculated by reference to the Fourth Schedule exceeds the sum paid by the Lessee in respect thereof on the basis of the Lessor’s estimate the deficiency shall be paid by the Lessee to the Lessor upon demand; and if the amount thereof is less than the sums paid by the Lessee in respect thereof the Lessor shall forthwith refund the excess to the Lessee.

(d)The Lessor must provide an “audited itemised statement” of variable outgoings to the Lessee for each Accounting Period. The statement is to be provided “as soon as practicable” after the variable outgoings have been determined for that Accounting Period: clause 4.6(d).

Thus, Myer submits that cl 4.6 creates a system for setting off amounts paid by Myer against amounts owing to the Plaintiffs to determine a final amount owing to either Myer or the Plaintiffs. The final amount was determined separately for each Accounting Period. Myer contends that these factors all show that a separate agreement, in the form of an account stated, was reached for the amount of the increases of variable outgoings for each Accounting Period. The consideration for this agreement is said to be the setting off of amounts owing between Myer and the Plaintiffs. Myer relies upon the evidence of Ms Jane Pendlebury with respect to the process of estimation through the Budgeted Outgoings Statements and the provision of the Actual Outgoings Statements in due course.[367] The Plaintiffs accept that Myer has paid amounts determined in accordance with the provisions of the Lease as they now stand.[368]
[367]Defendant’s Outline of Closing Submissions (28 November 2017), [171]–[175].
[368]Plaintiffs’ Opening Submissions (15 November 2017), [30].

In conclusion, Myer submits that for each year, a binding contractual agreement was reached between Myer and the Plaintiffs concerning the amount of increases in variable outgoings that was to be paid by Myer. The offsetting of debits and credits amounted to the giving of consideration. Thus, Myer contends that regardless of whether the Plaintiffs’ claim for rectification or a declaration of a particular construction of the Lease succeeds, these binding agreements still stand. So it would follow that no repayment is due from Myer to the Plaintiffs for financial year 2002 to financial year 2015 and that, consequently, Myer is entitled to a repayment of $4,704.81 for the financial year 2001.

In my view, Myer’s claim by way of account stated must fail because there were no mutual dealings involved in the process relied upon. Each Adjustment Statement delivered by the Plaintiffs to Myer was “one-sided”. Moreover, there is no evidence about each Adjustment Statement to suggest it was negotiated, agreed between the parties or final. Clause 4.6 of the Lease did not say an Adjustment Statement was to be any such thing. On the contrary, these provisions, particularly sub-cl 4.6(e), envisaged that Adjustment Statements were not final and could be disputed. The parties did not negotiate and agree that a balance was to be paid. The parties merely performed sub-cll 4.6(b) and (c) of the Lease. If the Adjustment Statements are to be regarded as an account, each such statement is the first form of account and is merely an acknowledgment of the debt so that evidence may be tendered to show that it is erroneous. It is not a real account stated which is binding subject to being reopened.

The Plaintiffs also made submissions in support of the position that if the Adjustment Statements did amount to binding accounts stated, there was a basis for their setting aside at common law or in equity or under mistake.[369] Having regard to my findings with respect to the claim of account stated, the issue of mistake does not arise. Nevertheless, if this issue were a live one, I would be of the opinion that, in the present case, the persons who entered into the account stated “agreement” for each financial year on behalf of Myer and the Plaintiffs intended to implement the terms of the Lease and were under no mistake as to what they were doing. They had a common intention to implement the Lease and did so.[370] Moreover, to the extent that the Plaintiffs seek to rely on an alleged mistake by the persons who entered into the Lease, it is unclear on the evidence whether the relevant people who were mistaken are Mr Beer, Mr McNamara or, possibly, the board members of the Gandel Group or CML. Even if it is accepted that any of these people made a mistake, none of them was involved in determining the payment of variable outgoings for the period from financial year 2002 to financial year 2015. The intentions of these people may have been relevant to any mistake concerning the Lease, but they would not be relevant to any “separate agreements” that may have been entered into each financial year concerning the payment of variable outgoings were the process properly to be regarded as one of “mutual dealings” such as to constitute an account stated. Finally, even if it were to be accepted that the intentions of these people were relevant, there was no mistake from September 2012 onwards, because on the Plaintiffs’ own case they were entirely aware of the alleged Mistake at that time and still kept accepting payments in accordance with the Lease provisions as they now stand. This would mean that if the account stated claim were successful, the “agreements” reached for the financial years 2012 to 2015, inclusive, may not be set aside.
[369]See Australia Estates Pty Ltd v Cairns City Council [2005] QCA 328; Rees v Rees [2016] VSC 452.
[370]See Defendant’s Outline of Closing Submissions (28 November 2017), [182].

Statute of limitations

Myer contends that if it is found liable to pay any amounts with respect to increases in variable outgoings, the Plaintiffs are barred from recovering amounts concerning the financial years 2002 to financial year 2009 (inclusive) as a result of the operation of s 5(1)(a) of the Limitation of Actions Act 1958 (“the LAA”), which provides as follows:

The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued—
(a) … actions founded on simple contract…

The Plaintiffs contend that the LAA did “not apply until December 2015 because time only began to run once Myer was given an Adjustment Statement which, as required by clause 4.6(c), calculated increases in accordance with the Fourth Schedule”.[371] The Plaintiffs gave Myer “Adjustment Statements” in respect of each financial year shortly after the end of each year. Each of these “Adjustment Statements” was calculated in accordance with the Fourth Schedule to the Lease. As Myer observes in its submissions, the Plaintiffs’ submission is that “time only began to run once Myer was given an Adjustment Statement which, as required by clause 4.6(c), calculated increases in accordance with the Fourth Schedule”.[372] The corollary of the Plaintiffs’ submission, Myer says, is that time began to run for the payment of variable outgoings for a particular financial year shortly after the end of that financial year. Proceedings were commenced on 11 February 2016. Thus, Myer contends, any claim for a financial year which had an “Adjustment Statement” issued prior to 11 February 2010 is out of time and hence each financial year up to and including financial year 2009 is out of time.
[371]Plaintiffs’ Opening Submissions (15 November 2017), [42].
[372]Defendant’s Outline of Closing Submissions (28 November 2017), [186].

Myer’s submissions on this basis are, as indicated, only made in the event that the Court finds that the Plaintiffs have an entitlement to recover moneys with respect to adjustments to variable outgoings over and above moneys already paid by Myer—a position which, in turn, depends upon a favourable finding to the Plaintiffs with respect to either the construction of the relevant Lease provisions or the grant of rectification of those provisions as sought. As, for the preceding reasons, that is not the position which has been reached, statute of limitations issues do not arise. Nevertheless, for the reasons which follow, I am of the opinion that the reasoning with respect to the application or otherwise of this legislation as contended for by the Plaintiffs would represent the correct position if statute of limitations issues arose. It is to this reasoning which I now turn.

Section 5(1) of the LAA directly applies to the Plaintiffs’ claim in debt or for damages whether cl 3(b) of the Fourth Schedule of the Lease is corrected by construction or rectification. If the latter, that is, if rectification is granted, the effect of the order for rectification is retrospective,[373] with the consequence that whether a debt is owed or a breach has occurred is assessed ex post facto.[374] However, the Plaintiffs’ claim based on rectification is entirely equitable,[375] and consequently the LAA does not apply to it—at least not directly, as equity has long applied legislation such as limitations of actions legislation only by analogy in certain circumstances.[376] Consequently, the effects of delay upon the availability of the remedy of rectification are dealt with under the equitable doctrines of acquiescence and laches, and not under the LAA.
[373]CA & CA Ballan Pty Ltd v Olive Hume (Australia) Pty Ltd [2017] VSCA 11, [32]; Denis SK Ong, Ong on Rectification (Federation Press, 2017) 7–10, 139–40.
[374]Spathis v Hanave Investments Co Pty Ltd [2002] NSWSC 304, [108]–[111].
[375]There is no period prescribed for rectification (cf s 21 of the LAA for the equitable claims against trustees) and there is no common law claim analogous to rectification so s 5(8) is not engaged.
[376]Peter W Young, Clyde Croft and Megan Louise Smith, On Equity (Lawbook Co, 2009), [17.290].

It is trite that under s 5(1) of the LAA a cause of action for breach of contract “accrues” upon breach.[377] It is axiomatic that time will not start to run for the purposes of the LAA where the time for performance by the defendant has yet to arise because the obligation is conditional and the condition has yet to be fulfilled.
[377]Kone Elevators Pty Ltd v Popa [2006] VSCA 26, [21]; Louis v Galbally & O’Bryan [2007] VSCA 158, [23].

This proceeding was commenced on 11 February 2016. Each amount calculated under cll 4.6(a) and 4.6(c) of the Lease was a separate debt and obligation. On any view, s 5 of the LAA cannot apply to debts which arose after 11 February 2010. However, as the Plaintiffs contend, the Court should find, and does find to the extent that this may ultimately prove to be necessary, that the LAA does not apply at all because Myer’s obligation to pay was conditional, and the condition was not satisfied until December 2015.

Both cll 4.6(a) and 4.6(c) condition Myer’s obligation to pay the “increases in Variable Outgoings” upon those increases having been “calculated in accordance with” the Fourth Schedule. Clauses 4.6(b) and 4.6(c) condition Myer’s obligation to pay upon notice—a notification for the former and a demand for the latter. In the absence of receipt of a demand “calculated in accordance with” the Fourth Schedule, Myer’s liability to pay under cl 4.6(c) of the Lease was conditional, and that condition had not been satisfied.[378]
[378]And see Ogilvie v Adams [1981] VR 1041; and C E Health Underwriting & Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd (Supreme Court (Vic), Bath J, 3 August 1995, unreported).

In the alternative, and also I think correctly, nothing in the Lease makes time of the essence[379] and nothing precludes more than one demand for the debt—especially since in cl 1 of the Lease it is stated that “words importing the singular number shall include the plural”. Until 2015, none of the Estimates under cl 4.6(b) and none of the Adjustment Statements under cl 4.6(c) were calculated in accordance with the Fourth Schedule as construed or rectified. The requirement under cl 4(c) that the actual increases be determined “as soon as practicable” is met. The word “practicable” means “capable of being put into practice”.[380] Because the formula in cl 3(b) of the Fourth Schedule would have to be treated as wrong were the Plaintiffs successful in its construction and rectification claims—it was not “practicable” to determine the actual outgoings in accordance with the Fourth Schedule at that time.
[379]Nothing in cl 4.6 or the surrounding circumstances makes it inequitable not to treat the failure of the Plaintiffs to comply exactly with the time stipulation as relieving Myer from the obligation to pay the increases properly calculated—see United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 at 928.
[380]Macquarie Concise Dictionary.

For these reasons, it follows that Myer’s obligation to pay the amounts calculated in the 2015 Demands was not unconditional unless and until those demands were made on Myer. The corollary is that Myer’s liability to pay interest did not arise until the 2015 Demands were made. Thus, no limitation defence arises because six years did not expire between delivery of the 2015 Demands and the issue of the Writ in February 2016.

Conclusion

For the preceding reasons, the Plaintiffs’ claims fail—whether on the basis of claims with respect to the proper construction of the provisions of the Lease or its claims for rectification of those provisions.

The parties are to bring in orders to give effect to these reasons. I otherwise reserve the question of costs.

ANNEXURE

[ANNEXURE B TO THE FURTHER AMENDED STATEMENT OF CLAIM]

FOURTH SCHEDULE TO LEASE

VARIABLE OUTGOINGS – DEFINITION AND CALCULATION

For the calculation of the Lessee’s contribution to increases in Variable Outgoings:

“Base Accounting Period” means the Accounting Period of twelve months commencing on 1 July following the Commencing Date.
“'Lessee’s Proportion” means eighty per cent (80%) of that part of the whole of the Increase in Variable Outgoings which bears the same proportion to the whole of the Increase in Variable Outgoings as the Gross Lettable Area of the Demised Premises bears to the Gross Lettable Area of all buildings in the Centre.

3. “Increase in Variable Outgoings” means
(a)in respect of the second full Accounting Period after the Commencing Date (that is the Accounting Period commencing on the second 1st July falling after the Commencing date) the lesser of:
(i)the amount by which the Variable Outgoings for that Accounting Period exceed the Variable Outgoings for the immediately preceding Accounting Period; and
(ii)an amount equal to
—VO

(b)in respect of each subsequent Accounting Period the lesser of:
(i)the amount by which the Variable Outgoings for that Accounting Period exceed the Variable Outgoings for the Base Accounting Period; and
(ii)an amount equal to
—BVO

where
VO is the Variable Outgoings for the Accounting Period preceding the Accounting Period in respect of which the calculation is being made
BVO is the Variable Outgoings for the Base Accounting Period
CPI(2) is the Index issued for the quarter ended 31 March during the Accounting Period preceding the Accounting Period in respect of which the calculation is being made
CPI(1) is the Index issued for the quarter ended 31 March twelve months prior to CPI(2).

“Variable Outgoings” means (to the extent to which the same are not specifically payable (whether directly or by way of reimbursement to the Lessor) from time to time by any Lessee or other occupier of any part of the Centre under the terms of its occupancy thereof) the total of all outgoings costs and expenses of the Lessor or for which the Lessor is liable (other than expenses expressly excluded by the subsequent provisions of this Schedule) now or hereafter assessed or assessable charged or chargeable paid or payable or otherwise incurred upon or in respect of the Centre or upon the Lessor in relation to the Centre or in the conduct management and maintenance of the Centre and in the use and occupation of the same as a high-class regional shopping and commercial centre and whether such costs are incurred by engaging independent contractors or are incurred by employing or engaging personnel employed by the Lessor or any of its related companies and in particular but without limiting the generality of the foregoing shall include:
(a)all duties and taxes (other than land tax or income tax) paid or payable by the Lessor in consequence of the receipt by the Lessor of rent or other moneys or in consequence of the Lessor having any estate or interest in the Centre;
(b)all premiums for the public liability insurance, workers’ compensation insurance, insurance of all structures building plant machinery equipment fittings and fixtures of the Centre, plate glass insurance, loss of rent and consequential loss insurance and all other policies of insurance effected by the Lessor in respect of the Centre and/or the Lessor (referrable to the Centre or the Lessor in relation to the Lessor’s ownership or interest in the Centre) and for such amounts and against such risks as the Lessor may from time to time deem necessary or desirable with such extensions or exclusions as the Lessor shall think fit;
(c)all charges for water gas oil electricity light power fuel telephone loud speaker and intercommunication systems sewerage and other services furnished or supplied to the Centre for the general benefit or purposes of the Centre (but excluding services supplied to the individual tenancies of the Centre) or to the Centre management offices;
(d)all costs of repairs maintenance renovations and replacements of and to the Centre to the extent that such costs are not properly chargeable to capital;
(e)the cost of painting repair and other maintenance work to the Common Areas and of all cleaning of Common Areas and of the prevention and eradication of rodents pests and vermin;
(f)all costs of management control and administration of the Centre including wages, long service leave, holiday pay, sick leave and superannuation, audit, and accountancy fees and legal expenses and costs and expenses of challenging any rate, valuation or assessment on the Centre or on the Lessor in respect of the Centre;
(g)all costs and expenses associated with the effective operation and the parking areas and any extensions thereof from time to time available in the Common Areas inclusive of any amounts paid to any contractor engaged by the Lessor to operate such area;
(h)all costs and expenses of gardening landscaping and providing and maintaining decorative features in Common Areas;
(i)all costs and expenses of caretaking and security;
(j)all costs and expenses associated with the effective operation of any Child Minding Centre, toilets and other facilities in Common Areas including the cost of personnel to operate such services;
(k)all costs and expenses associated with running and maintaining lifts and/or escalators in Common Areas;
(l)the costs (including electricity and any other source of power used) of ventilating and/or airconditioning of the Centre or any part thereof including all costs and expenses associated with running and maintaining the plant and equipment therefor and other mechanical equipment and appurtenance and including without limiting the generality aforesaid the fees and/or premiums payable to specialist contractors and/or wages paid to permanent staff employed and the cost of materials used by the Lessor in or about the maintenance and servicing of such plant equipment. mechanical services and appurtenances
PROVIDED THAT:
(i)any rate or tax attributable to the Demised Premises or the Centre which pursuant to Clauses 4.1, 4.2 or 4.3 the Lessee is liable to pay or reimburse to the Lessor, shall not be taken into account in calculating Variable Outgoings;
(ii)where the Demised Premises are separately airconditioned, sprinklered, or provided with other services by virtue of plant and equipment in respect of which the Lessee is responsible to meet running costs, maintenance and the like then any costs incurred as described in paragraphs (c) and (l) of this Schedule shall only be taken into account in calculating Variable Outgoings to the extent (if any) to which such costs relate to Common Areas;
(iii)if part only of the Centre (including the Demised Premises) enjoys the benefit of any facility (other than airconditioning) the cost of which falls within the definition of Variable Outgoings the Lessee’s proportion of such Variable Outgoings shall be that proportion which the Gross Lettable Area of those parts of the Demised Premises bears to the Gross Lettable Area of that part of the Centre (inclusive of the Demised Premises) which enjoys the benefit of such facility.
(iv)there shall be excluded from Variable Outgoings:
-the cost of works carried out to any part of the Centre including equipment installed therein which comprise either works of a structural nature or works properly chargeable to capital;
-any provision for depreciation;
-contributions to a sinking fund or the like to cover anticipated repairs or renovations;
-the cost of extensions or additions to the Centre;
-contributions by the Lessor to any promotional fund or Merchants Association formed for the promotion of the Centre;
-interest on moneys borrowed by the Lessor;
-rental payable by the Lessor in respect of land buildings or equipment comprising part of the Centre;
-valuation fees save for the purposes of objecting to assessments of rates and taxes included in Variable Outgoings;
-Financial Institutions Duty save for such duty imposed on the Lessor when receipts of rental, variable outgoings and the like are first deposited by the Lessor with its bank or other financial institution
-moneys expended by the Lessor in fulfilling its obligations under the Agreement for Lease.
If the Lessee exercises the option given to it for a further term of fifteen years the Base Accounting Period will not be updated and the lease for the further term shall incorporate such alterations as are necessary to provide for the Lessee to contribute to Increases in Variable Outgoings as if such further term were a continuation of this Lease.

SCHEDULE OF PARTIES

PERPETUAL LIMITED (ACN 000 431 827)      First Plaintiff
BRIDGEHEAD PTY LTD (ACN 006 082 515)     Second Plaintiff
VICINITY FUNDS RE LIMITED (ACN 084 098 180)  Third Plaintiff
- AND -
MYER PTY LTD (ACN 004 143 239)  Defendant

[2018] VSC 2

29 January 2018