Randall v City of Canada Bay Council (No.4) - [2015] NSWSC 1759

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Carlene Randall v City of Canada Bay Council (No 4) [2015] NSWSC 1759
Hearing dates: 5, 6 May; 18 July; 28 November 2014; 21 September 2015. Further written submissions – 10 December 2014; 30 January; 6 March 2015
Decision date: 25 November 2015
Jurisdiction: Equity
Before: Kunc J
Decision:
Amended Statement of Claim dismissed

Catchwords:
JUDGMENTS AND ORDERS – Amending, varying and setting aside – Whether third party has standing to set aside judgment – Whether submissions amounted to fraudulent misrepresentations – First instance judge setting aside Court of Appeal orders – UCPR Pt 36; r 36.15
COMPANIES – Dissolution – Reinstatement of registration – Who may apply – Person aggrieved – Whether any utility in reinstatement – Company would remain insolvent - Corporations Act 2001 (Cth), s 601AH(2)
Legislation Cited: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Corporations Act 2001 (Cth)
Crimes Act 1900 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 (NSW)
Evidence Act 1995 (NSW)
Fair Trading Act 1987 (NSW)
Interpretation Act 1987 (NSW)
Local Government Act 1993 (NSW)
Local Government (General) Regulation 1999
Local Government (Tendering) Regulation 1999
Roads Act 1993 (NSW)
The Civil Procedure Rules 1998 (UK)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 [2014] NSWCA 409
Abdelmamoud v The Egyptian Association in Great Britain Ltd [2015] EWHC 1013 (Ch); [2015] Bus LR 928
Australian Competition and Consumer Commission v Australian Securities Investment Commission [2000] NSWSC 316; [2000] 174 ALR 688
Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Carlene Randall v City of Canada Bay Council [2014] NSWSC 427
Carlene Randall v City of Canada Bay Council (No 2) [2014] NSWSC 964
Carlene Randall v City of Canada Bay Council (No 3) [2015] NSWSC 1397
Casali v Crisp [2001] NSWSC 860
Coles v Burke (1987) 10 NSWLR 429
Davison v Vickery’s Motors Ltd (In liq) [1925] HCA 47; (1925) 37 CLR 1
Donmastry Pty Ltd v Albarran [2004] NSWSC 632; (2004) 49 ACSR 745
Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227
Forge v Australian Securities and Investments Commission (No 2) [2007] NSWCA 42; (2007) 69 NSWLR 575
In the matter of Peter Conyers Pty Ltd (In liq) (1996) 14 ACLC 1835
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Ltd v Fletcher [2014] NSWCA 31; (2014) 85 NSWLR 644
Lennard’s Carrying Company Limited v Asiatic Petroleum Company Limited [1915] AC 705
Leybourne v Permanent Custodians Ltd [2010] NSWCA 78
McHugh & Anor v Eastern Star Gas Ltd & Ors [2012] NSWCA 169
Millbrook Finance Pty Ltd v Australian Securities Investments Commission, in the matter of Kekpek Pty Ltd [2014] FCA 620
Minister for Natural Resources v New South Wales Aboriginal Land Council & Anor (1987) 9 NSWLR 154
Nicholson v Nicholson (1974) 2 NSWLR 59
Perpetual Trustees Australia Ltd v Heperu Pty Ltd & Ors (No 2) [2009] NSWCA 387; (2009) 78 NSWLR 190
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2009] NSWSC 17; (2009) 14 BPR 27,565
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council; unreported; Young JA; 12 July 2010
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council (No 2) [2010] NSWCA 183
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 205
Rail Signalling Services Pty Ltd v Victoria Rail Track [2012] VSC 452
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1987) 8 NSWLR 270
Union Bank of Australia Ltd v Rudder [1911] HCA 39; (1911) 13 CLR 152
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Category: Principal judgment
Parties: Carlene Randall (Plaintiff)
City of Canada Bay Council (Defendant)
Representation:
F. Agresta (by leave for the Plaintiff)

Counsel: P.T. Newton (Defendant)
Solicitors:
Mills Oakley Lawyers (Defendant)

File Number(s): 2013/5606
Publication restriction: No

Judgment

Summary

In these proceedings the plaintiff (“Ms Randall”) invokes Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) Pt 36, r 36.15 and the Court’s inherent jurisdiction to set aside judgments and orders made against Phoenix Commercial Enterprises Pty Ltd (“Phoenix”) by White J in 2009 and that were subsequently varied by the Court of Appeal in 2010. A liquidator was appointed to Phoenix on 25 November 2011 and it was deregistered on 6 January 2013.
Ms Randall and her husband, Mr Ferdinando Agresta, were shareholders and directors of Phoenix with other family members. Phoenix was the lessee from the Council of Concord under two relevantly identical leases of land (the “Leases”) on which Phoenix was entitled to erect large advertising structures. The defendant (the “Council”) is the successor to the Council of Concord.
In June 2003 the Council terminated the Leases for unpaid rent. Phoenix challenged the Council’s termination of the Leases in this Court. The Council cross-claimed for unpaid rent. In Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2009] NSWSC 17; (2009) 14 BPR 27,565 (“White J’s Judgment”), White J held that the Council did owe Phoenix some money but that it was less than Council’s rent claim. After allowing for a set-off, White J entered judgment against Phoenix in favour of the Council for $948,671.55.
Phoenix appealed and the Council cross-appealed. In Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 (the “CA Judgment”), the Court of Appeal dismissed Phoenix’s appeal and upheld the Council’s cross-appeal. The success of the cross-appeal eliminated the amount which White J had found the Council owed to Phoenix. The absence of this set-off meant that the Court of Appeal increased the Council’s judgment against Phoenix to $1,626,612.01.
Ms Randall’s case in these proceedings was argued for her by Mr Agresta. The Council did not oppose Mr Agresta being given leave to appear on her behalf. She contends that both the proceedings before White J and the Court of Appeal were tainted by two categories of misrepresentation made to both Courts by the Council so that the judgments and orders against Phoenix should be set aside. Ms Randall also seeks the reinstatement of Phoenix.
Mr P.T. Newton of Counsel appeared for the Council. The Council denied the misrepresentations, challenged Ms Randall’s standing to seek relief and submitted that the matters now sought to be relied upon would have made no difference to the outcome in any event.
The Court has determined that Ms Randall’s proceedings should be dismissed by reason of these conclusions:

Ms Randall has standing under r 36.15 and the Court’s inherent jurisdiction to bring these proceedings.

There were no fraudulent misrepresentations by the Council insofar as it had submitted to White J and the Court of Appeal that it had not acted as a consent authority for the purpose of clause 15(d) of the Leases.

There were no fraudulent misrepresentations by the Council insofar as it had submitted to White J and the Court of Appeal that it had validly terminated the Leases.

There is no basis to reinstate Phoenix under s 601AH(2) of the Corporations Act 2001 (Cth).

None of the various miscellaneous arguments raised by Ms Randall succeed. Even if they were correct, they would not justify the Court granting the relief sought by Ms Randall.

The proceedings before White J and in the Court of Appeal

When the dispute between Phoenix and the Council initially arose, Phoenix had solicitors who prepared its original statement of claim. At least Phoenix’s affidavit evidence in chief was prepared with legal assistance. Another firm of solicitors prepared Phoenix’s further amended statement of claim, which by leave of White J was filed on 26 March 2008, less than a month before the hearing. By the time of the hearing before White J, Phoenix no longer retained solicitors. However, it was represented at the hearing by Mr A.P. Cheshire of Counsel, who was only briefed on the Friday afternoon before the hearing was to commence on the following Monday. The Council was represented before White J by Mr B.A. Coles of Queen’s Counsel leading Mr J.E. Armfield of Counsel.
The issues before White J and the factual origins of the original dispute between Phoenix and the Council are set out in the introductory paragraphs of White J’s Judgment :

1    This case concerns the construction of the terms of a lease and questions of set-off.
2    The plaintiff was the lessee from the Council of Concord of lands in Victoria Avenue and Young Street, Concord to be used for the purposes of erecting advertising structures. The defendant is the successor of the Council of Concord and has the same rights and liabilities as it. They can both be referred to as “the Council” without distinction between them.
3    There were two leases in almost identical terms. On 18 February 1998, the parties executed memoranda of variation of each lease in the form of deeds of variation dated 1 February 1998. Each deed was in identical terms. After execution of the deeds of variation, each lease was for a term which terminated on 1 January 2008. In substance, after the deeds of variation were entered into, the entire rent for each lease was to be $900,000 of which $450,000 was paid on execution of the deeds of variation. The balance of $450,000 was payable, with interest, within five years. Interest was to be paid on each $450,000 of rent remaining outstanding after execution of the deeds of variation. Failure to pay the outstanding rent within five years of the date of the deed of variation would constitute a breach of an essential term of the lease.
4    The plaintiff did not pay rent of $900,000 and interest by 1 February 2003. On or about 3 February 2003, it paid $20,578.66. The Council claimed that $900,000 plus interest became due and owing from 1 February 2003. After taking into account the payment of $20,578.66, the total amount the Council claimed was owed as at 1 February 2003 was $1,104,456.78.
5    On 25 June 2003, the Council gave notice of termination of each lease for the plaintiff’s failure to pay rent. At about the same time, it re-entered each of the premises. It is admitted on the pleadings that it thereby determined each lease.
6    The plaintiff claims that the Council had no right to re-enter and determine the leases.
7    Clause 15(d) of each lease as varied provided:
Should the Lessor in its capacity as consent authority approve the erection of a general advertising structure on other land within the Lessor’s Local Government Area or control then within (1) month of such approval the Lessor will pay to the Lessee an amount equivalent to 25% of the Rental corresponding to the amount of time remaining within the Term.

8    Clause 15(e) required the lessor to pay interest at a fixed rate of 10 percent per annum on all moneys due by the lessor to the lessee. As events happened, this was a higher rate of interest than the variable interest payable on the outstanding rent of $450,000.
9    In its further amended statement of claim the plaintiff pleads that on or about 22 February 2000, the Council in its capacity as consent authority approved the erection of three general advertising structures in the local government area. These were illuminated advertising display cases in bus shelters on the footway of Majors Bay Road and Gallipoli Street, outside 142 Concord Road, and outside 48-54 Majors Bay Road.
10    The plaintiff contends that on the proper construction of the leases, clause 15(d) operated in respect of second and subsequent approvals such that the meaning of “Rental” in the expression “Rental corresponding to the amount of time remaining within the Term” meant the unpaid prepaid rent less the amount to be paid by the Council to the plaintiff in respect of the first or subsequent approvals. In other words, the plaintiff contends that in respect of the approval of the first general advertising structure the Council became liable to pay 25 percent of the rent abated for the amount of time remaining within the term. In respect of the second approval (that is the approval of the second structure) the plaintiff contends that the Council was liable to pay 25 percent of the rent after setting off the amount payable by the Council in respect of the first approval; and so on in respect of subsequent approvals.
11    The plaintiff contends that the moneys due by the Council pursuant to clause 15(d) of the lease and interest payable on those moneys pursuant to clause 15(e) should be set-off against the plaintiff’s liability for rent and interest by appropriating the moneys due to it against the debts payable by it in the way most favourable to it, namely, by appropriating them first to the obligation to pay rent, and secondly to interest. In its further amended statement of claim the plaintiff pleads that after setting off moneys due by the Council under clause 15(d) and interest due under clause 15(e) against its liability for rent and interest, all that was owing by it as at 1 February 2003 was an amount of $72,900.56 representing interest. It paid $20,578.66 on or about 6 February 2003 thereby, according to the plaintiff, reducing the interest outstanding to $52,321.90. The plaintiff contends that whilst the obligation to pay the due rent was an essential term of the lease, the obligation to pay interest on rent was not.
12 The plaintiff further claims that by issuing notices dated 13 May 2003 which asserted that rent was owing, the Council, in trade and commerce, engaged in conduct which was likely to mislead, contrary to s 42 of the Fair Trading Act 1987 (NSW), because no rent was due. It contends that by reason of that conduct the plaintiff lost the opportunity to pay the lesser amount which would have been due had the amounts under clause 15(d) been taken into account and lost the opportunity to seek an injunction restraining the defendant from re-entering the premises or to seek relief against forfeiture. It claims damages pursuant to s 68 of the Fair Trading Act. It also contends that the Council was not permitted to keep the advertising structures erected on the demised premises. The plaintiff contends that as the Council was not entitled to determine the leases, it was entitled to remove the advertising structures erected on the demised premises. It seeks an order requiring the Council to allow it to remove those structures.
13   The principal questions which potentially arise on the existing pleadings are:
a)    whether by reason of resolutions of the Council passed on 22 February 2000 and the Council’s permitting the subsequent erection of three bus shelters with advertising display cases, the Council became liable to make a payment or payments pursuant to clause 15(d);
b)    if so, whether the Council was required to make one payment only or more than one payment, and if the latter, whether the amounts due were to be calculated in the cascading manner contended for by the plaintiff;
c)    if moneys were owed by the Council under clause 15(d) together with interest under clause 15(e), whether amounts due by the Council should be treated as payments by the plaintiff on account of rent either pursuant to the express terms of the lease or on the principles of equitable set-off;
d)    whether the Council was entitled to give notice of termination of the leases and re-enter the premises;
e)    if not, whether the plaintiff is entitled to recover damages arising from its loss of the lease when it did not give notice to the Council that it treated the Council’s notice of termination and re-entry as a repudiation and did not itself terminate the leases;
f)    whether the damages claimed by the plaintiff were too remote;
g)    whether the sending of the notices of 13 May 2003 was “in trade or commerce”;
h) whether by sending the notices the Council engaged in conduct which was likely to mislead or deceive contrary to s 42 of the Fair Trading Act,
i)    whether any of the damages claimed by the plaintiff were caused by misleading or deceptive conduct engaged in by the Council;
j)   whether the plaintiff should have been permitted to remove the advertising structures and if so, whether an order should now be made to allow it to do so;
k)    the quantum of damages; and
l)   whether the Council is required to give credit on its cross-claim for rent and interest for moneys it received after re-entering the lands from licences granted to third parties for use of the advertising structures erected on the lands.
14    When the parties were advised that I would deliver judgment, the plaintiff foreshadowed that it would seek leave to further amend the statement of claim and re-open to tender further documents supporting its further claims. I deal with that application at paras [103]-[128] below. The reasons which follow deal with the plaintiff’s case as pleaded in the further amended statement of claim (being the last pleading the plaintiff has leave to file) and as presented at the hearing on 7 and 8 April 2008 and in subsequent written submissions.

Because of its importance to the present proceedings, it is necessary to set out White J’s findings in relation to the termination of the Leases, in particular the question of what notices were given:

39 On 23 January 2003, a solicitor acting for the Council wrote to the plaintiff advising that the second instalment of rent of $450,000, together with interest, was due for payment on 1 February 2003 in respect of each lease. He advised that the interest payable was $167,359.72 and that the total indebtedness of the plaintiff as at 1 February 2003 was $617,359.72, in respect of each lease.
40 On 6 February 2003, the plaintiff paid $20,578.66 described as “one month’s rental payment” and, implicitly, requested that the Council agree to accept monthly rental payments. On 20 February 2003, the plaintiff proposed that it acquire the freehold title to the land or alternatively that it obtain a 21-year term with monthly rental payments commencing at $20,600 per month. On 28 February 2003, Abbott Tout, solicitors for the Council, advised that the plaintiff’s proposal in its letter of 20 February 2003 was not acceptable to the Council. They advised that the total indebtedness of the plaintiff as at 1 February 2003 was $617,359.72 in respect of each lease. They advised that if payment were not received within seven days, they were instructed to take immediate action in accordance with the terms of the lease without further notice.
41 On 14 May 2003, Abbott Tout served a document described as a notice of breach of covenant. It is this notice which is alleged to be misleading. It was addressed to the plaintiff (described as the “Tenant”) and stated as follows:
The Tenant is the lessee of lot 5 in deposited plan 778667 located adjacent to Victoria Avenue at Concord West and the lessee of lot 27 in deposited plan 719909 located parallel to Young Street at Concord (together, Premises).
By leases of the Premises dated 9 April, 1996 from Concord Council (now known as the City of Canada Bay Council (Council)) to the Tenant (Leases) and the variations of Leases dated 18 February, 1998 (Variations), the Tenant covenanted to pay Rental as defined in the Variations to the Council within a period of five years from the date of execution of the Variations.
The Tenant has failed to make the payments.
Take notice that the Council requires the Tenant to comply with its obligations under the Leases and the Variations by paying the Rental and all other amounts owing under the Leases and the Variations within 21 days of the date of this notice.

42 As previously noted, on 25 June 2003, the Council served a document described as a notice of termination. That notice stated that by the two leases the plaintiff had covenanted to pay “Rental” as defined in the variations of leases within a period of five years from the date of execution of the variations. The notice stated that the tenant had failed to make the payments of rent and that the Council terminated the leases effective immediately. As previously noted, it is admitted on the pleadings that “on 25 June 2003 the Defendant issued notices purporting to terminate the Leases and at about the same time re-entered both sets of premises thereby determining the leases”.

Because they feature in these reasons, the Council’s Notice of Breach of Covenant (the “Breach Notice”) is fully reproduced in Schedule One and the Notice of Termination (the “Termination Notice”) in Schedule Two to these reasons.
In considering whether clause 15(d) of the Leases had been triggered, White J came to the view (White J’s Judgment at [69]) that the three bus shelters in question were general advertising structures within the meaning of clause 15(d). His Honour then went on to consider whether the Council had approved the bus shelters in its capacity as a “consent authority”. His Honour held that while the Council did not give its approval in its capacity as the consent authority under the Environmental Planning and Assessment Act 1979 (NSW) (the “EPAA”), it had done so in its capacity as a consent authority under the Roads Act 1993 (NSW) (the “RA”).
Because of its importance to the present proceedings, it is also necessary to set out his Honour’s reasoning on this point in full:

70 It was not every approval to the erection of a general advertising structure which was caught by clause 15(d). To be the subject of clause 15(d) such an approval had to be given by the Council in its capacity as a “consent authority”. The phrase “consent authority” was not defined in the lease. Mr Coles QC and Mr Armfield submitted that this was a reference to the Council acting as a consent authority pursuant to the Environmental Planning and Assessment Act in relation to a development application or an application for a complying development certificate under that Act. They submitted that the Environmental Planning and Assessment Act defined the Council’s role as a consent authority and that the Council did not act in such a role unless and until it received a development application or an application for a complying development certificate.
71 The bus shelters were erected on footpaths which were public roads. The roads were not zoned. In passing the resolution of 22 February 2000 the Council was not exercising any function as a consent authority under the Environmental Planning and Assessment Act. However, the Council was the “roads authority” for those roads (Roads Act 1993 (NSW), s 7, Section 138(1)(a) of the Roads Act provides that a person must not erect a structure or carry out a work in, on, or over a public road, otherwise than with the consent of the appropriate roads authority. Accordingly, Adshel needed the consent of the Council to erect the bus shelters. The Council consented to the erection of the bus shelters by its resolution of 22 February 2000 and its communication of that resolution to Adshel. As it was a public authority whose consent was required to the erection of the structures, and as it gave that consent, I consider that the Council approved of the erection of the structures in its capacity as consent authority.
72 It was submitted for the Council that clause 15(d) contemplated that the Council would be required to consider a much wider range of matters than would be appropriate to be considered for the exercise of functions under s 138 of the Roads Act, and this showed that the expression “in its capacity as consent authority” meant in its capacity as consent authority under the Environmental Planning and Assessment Act. I do not accept either premise implicit in that argument. There is nothing in clause 15(d) which assumes that the Council will be acting in a capacity where it is required to take into account any particular range of matters in deciding whether or not to approve of the erection of a general advertising structure. In any event, there is nothing in s 138(1) of the Roads Act which confines the matters to which the Council should have regard in deciding whether to give or withhold its consent to the erection of a structure on a public road. It was submitted for the Council that the only appropriate matters to be taken into account in exercising the function under s 138(1)(a) would be whether or not the erection of the structure would impede the flow of traffic. I see no reason why that should be so and why the Council would not be entitled under that section to take into account aesthetic considerations.
73 If it had been intended that the expression “consent authority” should be limited to a consent authority under the Environmental Planning and Assessment Act, it would have been easy so to define the expression. In the absence of such a definition, I consider that the clause 15(d) is satisfied and that relevant approval was given by the Council in its capacity as a public authority whose consent was required to the erection of the structure.
74 For these reasons, I conclude that by reason of the communication to Adshel of the Council’s resolutions at its meeting of 22 February 2000, the Council did, in its capacity as consent authority, approve of the erection of ten general advertising structures on other land within its local government area within the meaning of clause 15(d) of the leases. Whilst approval was given for the erection of ten such structures, only the approval of three were relied upon by the plaintiff.

Having decided that clause 15(d) of the Leases was triggered, White J then went on to determine the extent of the Council’s liability under that clause. His Honour concluded:

82 Accordingly, I do not accept that the potentially harsh operation of the clause can be mitigated by the construction contended for by the plaintiff. That potentially harsh operation is highlighted by the fact that the Council gave approvals for the erection by Adshel of ten general advertising structures. The fact that the plaintiff relies only on three such approvals does not affect this. To avoid giving the clause an unbusiness-like construction, it should be interpreted as requiring the Council to pay an amount equivalent to 25 percent of the rent corresponding to the amount of time remaining within the term, whether it gave one or more than one approval to the erection of a general advertising structure or structures on other land within the Council’s area.
83 The plaintiff calculated that for each lease the amount of rent “corresponding to the amount of time remaining within the Term” as at 22 February 2000 was $714,375. The Council did not dispute that calculation. Accordingly, pursuant to clause 15(d), the Council became liable to pay 25 percent of that amount, namely $178,593.75 to the plaintiff in respect of each lease. It also was liable to pay interest on that sum pursuant to clause 15(e). I do not accept the plaintiff’s contention that the Council was liable to pay $412,998.04 pursuant to clause 15(d) by reason of the grant of three approvals.

His Honour ultimately determined that there should be a set-off between the amount which he had found the Council owed Phoenix under clause 15(d) of the Leases and the rental owing by Phoenix to the Council (that unpaid rent being the subject of the Council’s cross-claim before White J):

95 The Council issued notices purporting to terminate the leases for non-payment of rent. Its right to do so was challenged on the ground that no rent (as distinct from interest under clause 15(g)) was owing at the time of the purported termination. For the reasons above, I do not accept that contention. Rent was owing notwithstanding that the Council was liable under clause 15(d) to pay $178,593.75 and that the interest which had accrued on that sum from 22 February 2000 was set-off against rent and reduced the amount owing. Accordingly, the leases were validly terminated.

His Honour concluded:

129 It follows that under each lease the plaintiff is owed a debt by the Council of $178,593.75 plus interest at the rate of ten percent per annum from 22 February 2000. Otherwise the plaintiff’s claims should be dismissed. The application for leave to amend will be dismissed.
130 The Council is owed a debt by the plaintiff pursuant to each lease of $450,000 plus interest from 1 February 1998 at the rate of two percent above the ninety-day AFMA Bank Bills Interest Rate. There should be a set-off of judgments so that a judgment is entered for the Council against the plaintiff for the difference (see S R Derham, The Law of Set-Off, 3rd ed (2003) at [2.78]).
131 I direct counsel for the defendant to bring in short minutes of order in accordance with these reasons and a calculation of the amounts owing by the defendant to the plaintiff and by the plaintiff to the defendant. I will then hear the parties on costs and give directions in relation to the balance of the plaintiff’s notice of motion if it is to be pursued.

The final orders made by his Honour are set out in paragraph [51] below.
Phoenix appealed against White J’s Judgment. Its notice of appeal contained 19 grounds, the burden of which was to seek to reargue all of the matters which had been rejected by White J. For present purposes, those grounds which might be relevant are:

13.   The Judge erred in finding that the leases were validly terminated by the Respondent.
14.   The Judge erred in failing to find that the Respondent was not entitled to terminate the leases since no sums were owing from the Appellant alternatively no rent was owing from the Appellant alternatively no valid demand had been made.
15. In the event that any sums were owing from the Appellant to the Respondent, the Judge erred in failing to hold that the Respondent wrongfully terminated the leases on the grounds that no valid common law demand was made alternatively no valid notice was served pursuant to section 129 of the Conveyancing Act 1919.
16.   The Judge erred in failing to find that the Respondent wrongfully terminated the leases.

The Council cross-appealed. It propounded three grounds, only one of which is now relevant:

2. His Honour erred in finding that the consent given by the cross-appellant to Adshel for the erection of bus shelters under the Roads Act 1993, constituted the cross-appellant’s approval in its capacity as consent authority to the erection of General Advertising Structures within the meaning of that expression in clause 15(d) of the respective leases the subject of the trial proceedings.

At the hearing of the appeal Mr A.P. Cheshire of Counsel again appeared for Phoenix, instructed by Mr Agresta as a director of that company. Mr B.A. Coles of Queen’s Counsel again lead Mr J.E. Armfield of Counsel for the Council. The Court of Appeal was constituted by Spigelman CJ, Campbell JA and Handley AJA. The principal judgment was delivered by Campbell JA. Spigelman CJ agreed with his Honour, subject to some additional observations which are not now relevant. Handley AJA agreed in the orders proposed by Campbell JA and briefly delivered his own reasons for that conclusion. Reference is made to Handley AJA’s reasons in paragraph [22] below. What occurred in the Court of Appeal was recorded by Campbell JA in his reasons in the CA Judgment:

The Proceedings in this Court
76 The Appellant has appealed against the judgment below. The Council has cross-appealed against the judge’s finding that it had breached clause 15(d), and against the judge denying it an order for all its costs. The Appellant also seeks leave to appeal against the judge’s refusal to permit amendment of the Statement of Claim, and has filed a Notice of Motion that this Court receive additional evidence on the appeal. All those applications have been heard together.
77 The Appellant also filed a Notice of Motion seeking to strike out the Notice of Cross-Appeal. However, at the hearing that Notice of Motion was not proceeded with.
Issues Arising
78 The issues argued on the hearing in this Court are:
(1) Were the bus shelters “general advertising structures” within the meaning of clause 15(d)?
(2) Was the Council acting “in its capacity as consent authority” when it approved erection of the bus shelters?
(3) On the correct construction of clause 15(d),
(a) can the clause operate to cause more than one sum of money to become payable by the Council?
(b) if it can operate to cause more than one sum of money to become payable by the Council, how are those several sums of money calculated?
(c) is there a contractual right of set-off of any amount due under clause 15(d) against rental?
(d) is there an equitable set-off of any amount due under clause 15(d) against rental?
(4) Was the Notice of Termination valid?
(5) Was the notice of 13 May 2003 misleading and deceptive?
(6) If yes to (5), did any damages arise from the misleading and deceptive notice?
(7) Who currently holds the title to the advertising structures?
(8) Should the trial judge have allowed the Appellant to amend its Statement of Claim and re-open?
(9) Should this Court should receive the additional evidence on the appeal?
(10) Whether the judge was appellably wrong in his conclusion about the costs of the proceedings?
79 Though the Council filed a cross-appeal against the judge’s decision that it was acting in trade and commerce in issuing the notices, it did not press that aspect of the cross-appeal.
Outcome
80 The conclusions that I have reached are that the bus shelters were “general advertising structures” within the meaning of clause 15(d), but the Council was not acting in “its capacity as a consent authority” when it approved their erection. Thus clause 15(d) was never triggered.
81 For the Appellant to be able to obtain any greater measure of success than the judge accorded it, it would need to establish that the judge was wrong in holding that clause 15(d) could operate only once. I have concluded that the judge was correct in holding that it can operate only once. Thus, it is not necessary to consider the other matters upon which the Appellant would need to succeed to obtain a more favourable result than it obtained below.
82 I would reject the application to amend the Statement of Claim and re-open, and would also reject the application to receive additional evidence on the appeal. In consequence of the cross-appeal succeeding, I would alter the order for general costs in the court below by giving the Council all those costs.

Campbell JA disagreed with White J’s conclusion that the Council had approved the bus shelters “in its capacity as consent authority” for the purposes of clause 15(d) of the Leases. Again, because of its importance to these proceedings, it is necessary to set out his Honour’s reasoning in full:

PART E – “In its Capacity as Consent Authority”
Legislative Provisions
188 Some provisions about ownership and control of roads, and about the seeking and obtaining of development consents, were referred to as part of the argument about whether the Council grant its approval “in its capacity as consent authority”.
Legislative Provisions Concerning Roads
189 Section 232 Local Government Act 1919 vested the fee simple of roads within a local council’s area in that council, unless another statutory provision said otherwise. In the present case we were not informed of any other statutory provision that said otherwise. Section 249 Local Government Act conferred the care, control and management of roads on the local council.
190 At the time, section 7(4) Roads Act 1993 had the effect of making the Council the “roads authority” for those public roads within its area that are relevant to the present case.
191 Other relevant provisions of that version of the Roads Act were:
138(1) A person must not:
(a) erect a structure or carry out a work in, on or over a public road; ...
otherwise than with the consent of the appropriate roads authority.
Maximum penalty: 10 penalty units.
139(1) A consent under this Division:
(a) may be granted on the roads authority’s initiative or on the application of any person; and
(b) may be granted generally or for a particular case; and
(c) may relate to a specific structure, ... or to structures, ... of a specified class; and
(d) may be granted on such conditions as the appropriate roads authority thinks fit. ...
140 A roads authority may at any time and for any reason revoke a consent under this Division by notice in writing served on the person to whom the consent was granted.
141 While a consent under this Division is in force, the taking of action in accordance with the consent is taken not to constitute a public nuisance and does not give rise to an offence against this or any other Act.

192 Section 145(3) Roads Act provides:
All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority.

Provisions of the EPA Act
193 At the time of execution of the original leases the EPA Act included in section 4 a definition that:
consent authority, in relation to a development application, means:
(a) the council having the function to determine the application, or
(b) where an environmental planning instrument specifies a Minister or public authority (other than a council) or the Director as having the function to determine the application—that Minister or public authority or the Director as the case may be.
development, in relation to land, means:
(a) the erection of a building on that land,
(b) the carrying out of a work in, on, over or under that land,
(c) the use of that land or of a building or work on that land, and
(d) the subdivision of that land,
but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.
development application means an application for consent under Division 1 of Part 4 to carry out development.
development consent means consent under Division 1 of Part 4 to carry out development”

194    Division 1 of Part 4 stretched from section 75 to section 105. It contained a detailed regime regulating who could make development applications, the content of development applications, the procedures to be followed and matters to be taken into account in determining a development application.
The Decision Below
195    The judge accepted that in passing the resolution of 22 February 2000, the Council was not exercising any function as a consent authority under the EPA Act. That finding is not challenged. However, the judge held that as section 138 Roads Act required the consent of (in this case) the Council before a structure could be erected in the part of the public road that constituted the footpath, and the Council gave that consent by its resolution of 22 February 2000 and its communication of that resolution to Adshel, that amounted to the Council approving of the erection of the structures in its capacity as consent authority.
Discussion
196   The expression “in its capacity as consent authority” appears in both clause 18 of the original leases (para [92] above), and in the new clause 15(d) inserted by the Variation of Lease documents (para [104] above). The expression “consent authority” is not defined in the leases. The words “consent” and “authority” are both ordinary English words (though each with multiple meanings). However, the composite expression “consent authority” is not a matter of ordinary English. It does not appear in the Macquarie Dictionary (though “local authority” and “statutory authority” appear there). It does not appear in the Oxford English Dictionary. It is, however, an expression that has a specific technical legal meaning, applicable in the precise field of discourse with which clause 15(d) deals. The matters to which I have referred at para [175] above provide some reason for the reasonable reader taking its meaning to be that technical meaning.

197   The implication one would ordinarily draw from the expression “In its capacity as consent authority” in clause 15(d) is that should the lessor, in some capacity other than as consent authority, approve the erection of a general advertising structure within its local government area, then clause 15(d) would not be triggered. That appears to leave open the possibility that such approval might be given other than “in its capacity as consent authority”. In other words, the mere fact that the Council approves the erection of a general advertising structure is not enough to show that the clause is triggered.
198    If one tries to make sense of the expression “in its capacity as a consent authority”, treating it as a clumsy piece of ordinary English, it appears to have something to do with the Council exercising an official power to grant a consent. The type of consent that is relevant to section 138(1) of the Roads Act can only be described as being granted under an official power to grant consent in a stretched and artificial version of that expression. Section 138(1) does not take the form of conferring on the Council any statutory power to grant consent to the erection of a structure in a public road. Rather, it is a prohibition, directed to people generally, of erecting a structure in a public road in circumstances where the Council has not given its consent. Section 138 is a provision that creates a criminal offence. The power that the Council has to grant consent to the erection of a structure in a public road arises as a legal incident of the Council owning the road, not because it has a statutory power to grant a consent. While sections 1391-141 refer to a “consent under this Division”, that means nothing more than a consent of the type that is referred to in the Division.
199    Some internal textual matters in the leases support the view that a “consent authority” means a consent authority within the meaning of the EPA Act. Clause 7 of the leases as originally entered (para [89] above), and as replaced by the Deeds of Variation (para [103] above) each incorporated the provisions of the development building approval into the conditions of the leases. The original Development Consent (para [106] above) modified development consent (para [107] above) each use the expression “consent authority” in a sense meaning consent authority within the meaning of the EPA Act.
200    In my view the consent of the Council to the advertising shelters was not given “in its capacity as consent authority” and thus clause 15(d) was not triggered.

On the same question, Handley AJA said:

247 I agree with the Chief Justice, Campbell JA and the trial Judge that the bus shelters were general advertising structures as defined. I also agree with the Chief Justice and Campbell JA that the approvals for their erection and use on public roads were not granted by the Council “in its capacity as consent authority” within the meaning of cl 15(d).
248 The Concord Ordinance did not zone the public roads vested in the Council, and development on such roads was not controlled either by the Ordinance or the Environmental Planning and Assessment Act. The Council is the consent authority as defined in that Act when it has the function of determining applications for development consent under the Act. The Council had no such function in relation to its public roads.
249 The controls on development on public roads vested in the Council were those imposed by the Roads Act 1993. I agree with the Chief Justice and Campbell JA that the approvals for the erection of these bus shelters were granted by the Council under s 139 of the Roads Act in its capacity as a road authority as defined in that Act.

The orders made to give effect to the CA Judgment are set out in paragraphs [52] and [53] below.
The CA Judgment was delivered on 1 April 2010. It was not the end of the matter.
On 25 May 2010 Phoenix, now represented by Mr Agresta without legal assistance, filed a motion to set aside the orders of the Court of Appeal of 1 April 2010 under UCPR Part 36, r 15(1), the same provision upon which Ms Randall now relies. That motion was dismissed by Young JA (Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council; unreported; Young JA; 12 July 2010). Significantly for these proceedings, his Honour’s reasons for dismissing Phoenix’s application for review demonstrate that Mr Agresta relied on an identical, or at least very similar, proposition to that which he has advanced in the present hearing (that the Council misled the Court by suggesting that, contrary to the fact, it was not acting as a consent authority for the purposes of clause 15(d) of the Leases when it approved the bus shelters) (emphasis added):

The points that were made by Mr Agresta who appeared as a director of the appellant show that he is challenging matters that go to the very heart of the determination of the Court on 1 April and not mere matters of clerical errors or the like. Accordingly, the prime thrust is under rule 15 and it is alleged that the judgment was obtained by fraud because the Council, who is the respondent, misled the Court by the way in which its case was conducted so that a statutory corporation with a regulatory function with the duty to carry out those functions, put to the Court that in giving its consent, it did not give its consent as such regulatory authority.
Now, it seems to me that sort of allegation does not come within rule 15. The focus of the fraud or irregularity which will allow a judgment to be set aside is usually that it is shown by evidence that there has been actual perjury by a witness. A mere allegation of perjury is not even sufficient and the way in which a case has been conducted or submissions have been put by the advocates to the Court are also not within that category.
When Mr Agresta announced that he was not applying under rule 16 but rules 15 and 17, I asked for particulars of the fraud. As I can see it no other particulars had been given before then and I have endeavoured to set out what his reply was. That does not appear to me to be a matter of fraud or illegality within rule 15 and is not within rule 17. If there was any complaint it was within rule 16, which is not part of the motion.
Accordingly in my view the motion cannot succeed and should be dismissed with costs.

Phoenix, through Mr Agresta, sought a review of Young JA’s decision (see paragraph [28] below).
On 3 August 2010 the Court of Appeal resolved by reference to further written submissions the question of the amount of the judgment to which the Council was entitled against Phoenix: Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council (No 2) [2010] NSWCA 183. The relevant order made on that occasion is set out in paragraph [53] below.
On 16 August 2010 the Court of Appeal, on that occasion constituted by Beazley and Macfarlan JJA and Handley AJA, heard Phoenix’s application for review of Young AJA’s decision (see paragraph [25] above). Mr Agresta appeared for Phoenix on that occasion. The Court of Appeal dismissed the application for a review (Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 205). Handley AJA delivered the leading judgment, with which the other judges agreed. It is necessary to set out his Honour’s reasoning on that occasion in full, because it demonstrates a matter relevant to the present application, being that by that stage Mr Agresta understood that if Phoenix was to demonstrate that the Council had approved the bus shelters as a “consent authority” for the purposes of clause 15(d) of the Leases, it would have to demonstrate that the bus shelters had been approved by the Council as the consent authority under the EPAA:

9 It is not necessary to finally determine that question because the underlying point that Mr Agresta, appearing on behalf of Phoenix Commercial Enterprises Pty Limited, seeks to agitate, is not soundly based in law.
10 The Local Government Act 1993 s 68 and the Table attached to that section defined the activities which required the approval of a council under that Act. Part E of theTable related to public roads vested in a council and item 2 covered, among other matters, the erection of “an advertising structure over a public road”. Public roads within the area of the City of Canada Bay were not zoned under its Local Environmental Plan and development on its public roads was not regulated under the Environmental Planning and Assessment Act.
11 Following the Environmental Planning and Assessment Amendment Act1997 which amended s 68 of the Local Government Act and the attached Table, the Governor made the Environment Planning and Assessment (Savings and Transitional) Regulation 1998 (the 1998 Regulation). Clause 29 (1) of that Regulation provided that it applied to development consisting of “a prescribed activity proposed to be carried out within the area of a council”.
12 Prescribed activity was defined in cl 3 as including an activity specified in the Table to s 68 of the unamended Local Government Act 1993 “(b) in item 2 (but only in relation to the erection of an advertising structure over a public road)...”. The unamended Local Government Act 1993 was defined as the Local Government Act 1993 as in force immediately before 1 July 1998, the day proclaimed for the commencement of the Environmental Planning and Assessment Amendment Act1997.
13 When the Council gave its consent for the erection of advertising structures on bus shelters within its area the 1998 Regulation was in force.
14 The Council was the consent authority under the Environmental Planning and Assessment Act for the purposes of granting consent to the erection of “an advertising structure over a public road” as provided in the unamended Local Government Act 1993.
15 The question which underlies this application is whether the advertising structures erected on bus shelters illustrated by photographs exhibited to Mr Agresta’s affidavit of 16 August 2010 are “over a public road”.
16 Section 138 of the Roads Act 1993 provides that a person may not erect a structure or carry out a work “in, on or over a public road” otherwise than with the consent of the appropriate roads authority. The same collocation of words “in, on or over a public road” is found in s 139(2) and ss 142(1) and (2) of the Local Government Act. In that context an advertising structure “over” a public road is one which extends across a road from one side to the other. An advertising structure that is in or on a public road but does not extend from one side of the road to the other is not such a structure “over” a public road.
17 The bus shelters and the advertising structures on them are not advertising structures “over” a public road within the meaning of the 1998 Regulation and the Local Government Act s 138, and the consent given by the Council for their erection was granted under that Act, and not the Environmental Planning and Assessment Act.

The course of these proceedings

These proceedings were originally commenced by statement of claim filed on 7 January 2013. That document named Ms Randall as first plaintiff and Mr Agresta as second plaintiff. When the hearing commenced before me Mr Agresta informed me that he was bankrupt. Evidence was tendered that his trustee in bankruptcy did not wish to pursue any claim he might have against the Council. Accordingly, the claim which he purported to bring as second plaintiff was dismissed with the question of costs reserved. The case proceeded with Ms Randall as the sole plaintiff represented, with leave, by Mr Agresta.
The proceedings at the hearing before me were formally constituted by an amended statement of claim filed on 11 September 2013 (the “ASC”). The ASC was responded to by an amended defence filed on 24 April 2014.
In addition to those two documents, the parties joined issue by reference to two additional documents. Pursuant to orders of the Court made on 28 October 2013, Ms Randall provided a document entitled “More And Better Particulars to paragraph [2(B)] to [2(H)] to the Amended Statement of Claim” (the “Particulars”). In response to various interlocutory matters pressed by Ms Randall the Council ultimately provided a document entitled “Statement of Admissions” (the “Admissions”) dated 31 March 2014. The Admissions were verified by an affidavit from the Council’s solicitor. In addition, Mr Newton made the following admission on behalf of the Council:

For the period of the meetings of Council between 4 February 2003 and 1 July 2003, Phoenix Commercial Enterprises Pty Limited is not referred to anywhere in the minutes of meetings of Council for that period.

On the first day of the hearing before me (5 May 2014) Mr Agresta sought leave to amend the ASC. That application was refused: Carlene Randall v City of Canada Bay Council [2014] NSWSC 427.
After two days of hearing provision was made for the filing of written final submissions. These prompted Ms Randall to seek to reopen her case and file further evidence.
On the third day of the hearing (18 July 2014) Ms Randall appeared represented by a solicitor who sought to have the proceeding adjourned. The history of the proceedings to that date and the reasons for refusing that application (including Mr Agresta’s extraordinary and peremptory termination of the solicitor’s retainer during the course of the hearing on that day) are set out in Carlene Randall v City of Canada Bay Council (No 2) [2014] NSWSC 964. The hearing continued on that day and orders were made for further written submissions. Although not a matter on which the Court is now able to act because Mr Agresta again resumed the carriage of the proceedings, I should note that the solicitor who appeared for Ms Randall on that day did concede that Ms Randall did not have standing to bring these proceedings.
The final oral argument took place on 28 November 2014.
On 10 December 2014 Mr Agresta sought to reopen Ms Randall’s case to make further written submissions. This was allowed, but led to further submissions in response from the defendants dated 30 January 2015 and additional submissions in reply from Mr Agresta dated 6 March 2015.
Some six months later, while these reasons were being prepared, Mr Agresta again applied for leave to reopen Ms Randall’s case to provide further submissions. That application was refused: Carlene Randall v City of Canada Bay Council (No 3) [2015] NSWSC 1397.

Considering Mr Agresta’s submissions on behalf of Ms Randall

The several sets of submissions in chief and in reply provided by Mr Agresta over the course of these proceedings total more than 160 closely typed pages. In drawing this to attention, no criticism is intended of Mr Agresta. He is not a legal practitioner and he has obviously done the best he can, based on his own research without legal assistance, to put everything he considers should be put in favour of Ms Randall’s position. Having said that, however, I must also observe that many of the things which Mr Agresta has included in his submissions are irrelevant to the legal arguments which he wishes to raise.
It would obscure the Court’s reasoning, and make this judgment much longer than it already has to be, if I sought to deal with every point raised by Mr Agresta in his written and oral submissions. I have read those written submissions and reviewed the transcript of oral argument several times. In these reasons I will endeavour to encapsulate what seem to me to be the key legal arguments which Mr Agresta has raised.
Again with no disrespect, the submissions repeat the same basic points in slightly different ways. To the extent that reference is not made in these reasons to each iteration of any particular argument raised by Mr Agresta, it is not to be assumed that any such variation has been overlooked. Rather, it is because these reasons are confined to recording and resolving those arguments put by Mr Agresta in what I understand to be their essential form and which I consider are arguably relevant to the disposition of these proceedings according to law.
It is also necessary to make two specific observations about Ms Randall’s submissions that are described as being in reply.
First, many of those submissions did no more than restate her submissions in chief. No criticism is intended of Ms Randall or Mr Agresta in making that observation. Experienced counsel can sometimes have difficulty with the discipline of being confined to what is properly in reply. However, in what follows I will record as such and deal with those submissions which, in my view, properly fall within the description of being in reply. I will not repeat those which have been recorded as submissions in chief.
Second, sections 11 and 12 of Ms Randall’s written submissions in reply dated 23 November 2014 (in the interests of brevity I will not seek to summarise their intricacies) fall into a separate class because while in a general sense they may be characterised as being in reply, they do not depend upon the alleged fraud that otherwise lies at the heart of Ms Randall’s case or the discovery of new, previously unavailable evidence. Instead, to the extent they do not repeat arguments raised elsewhere in these proceedings, they raise factual and legal arguments that do no more than take issue with the conclusions of the CA Judgment. They are of the same kind as Young JA identified as “challenging matters that go to the very heart of the determination of the Court [of Appeal]” (see paragraph [25] above). There is no suggestion that they raise anything that could not have been raised in that Court, before whom Phoenix was represented by undoubtedly competent counsel. It follows that those matters are insufficient to warrant the exercise of the extraordinary jurisdiction invoked by Ms Randall.

The issues in these proceedings

Ms Randall claims this relief in the ASC:

1.   Set aside the judgments and orders in favour of the Defendant against Phoenix Commercial Enterprises Pty Limited (“Phoenix”).
2.   An order that a new trial be held.
3.   Grant leave to the Plaintiffs and Phoenix to file and serve a further amended statement of claim.
4.   Damages to be separately assessed.
5.   An order that the Defendant pay, within one (1) month of this order, to the Plaintiffs all costs to the proceedings incurred by Phoenix and the Plaintiffs referred to in the affidavit of Ferdinando Agresta affirmed 20 December 2012 and Carlene Randall affirmed 20 December 2012.
6.   Interest from the date the costs and damages occurred.
7.   Indemnity costs.
8.   Set aside the judgment/orders dated 15 November 2011 to case number 2011/00328168.
9.   An order that ASIC relist Phoenix Commercial Enterprises Pty Ltd.

The last two prayers for relief deal with the winding up of Phoenix, with the case number there referred to being the proceedings in which Phoenix was wound up. This aspect of Ms Randall’s claim is dealt with in paragraphs [181] to [200] below.
The main burden of these proceedings relates to the judgments and orders of White J and the Court of Appeal. While this was not always stated by Mr Agresta with specificity, his various submissions on behalf of Ms Randall referred to misrepresentations made to both White J and the Court of Appeal. It was clear that both decisions were under attack.
Ms Randall relied on UCPR Part 36, r 36.15(1) and the Court’s inherent jurisdiction. The rule is:

36.15 General power to set aside judgment or order
(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
…

The orders of White J and the Court of Appeal were final orders that had been duly entered. There is no inherent power in the Court to set such orders aside if they were regularly made and entered: see Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530. Proof of fraud can establish the necessary irregularity. Neither party submitted that in these proceedings anything turned on the source of the Court’s jurisdiction. In these reasons references to r 36.15 are to be understood as including the inherent jurisdiction (other than in paragraphs [60] to [64] and [74] to [87] below).

In Perpetual Trustees Australia Ltd v Heperu Pty Ltd & Ors (No 2) [2009] NSWCA 387; (2009) 78 NSWLR 190 the Court of Appeal said:

15 The irregularities relied on included the failure of the appellant to take or disclose the wrong party point in its verified defence, its express or implied assertions that it was the correct defendant, and its failure to discover documents relevant to the role of PIML in the transactions.
16 The focus of Pt 36.15(1) is on the judgment or order that is attacked, and question is whether it was "given, ... entered or ... made" irregularly etc. The focus is on irregularity in those steps, not on the merits of any decision, or the irregularity of other steps in the proceedings, or in the proceedings below.
17 The rule applies with particular force to default or consent judgments and orders, and those given or made ex parte. It can only have limited application to judgments and orders made or entered after a hearing on the merits at which all parties were represented and fully heard.

Bearing that observation in mind, it is necessary to identify the judgments and orders which appear to be the subject of these proceedings. In one of her written submissions Ms Randall identifies eight first instance and appellate judgments. However, it is clear that the operative orders which Ms Randall challenges are a subset of those eight and are set out in the following paragraphs.
The orders made to give effect to White J’s Judgment were:

1.   I give judgment for the first defendant against the plaintiff in the sum of $948,671.55.
2.   I order the plaintiff’s claims for relief against the first defendant in the statement of claim be dismissed.
3.   I declare that the lease between the plaintiff and the first defendant registered 3842836T as varied by lease 3842837R was validly terminated by the first defendant.
4.   Declare that the lease between the plaintiff and the first defendant registered 3842834X as varied by lease 3842835V was validly terminated by the first defendant.
5.   I declare that the advertising structures on the land, the subject of the leases referred to in declarations 3 and 4, become the property of the first defendant on termination of the leases.
6.   I order that the first defendant’s claims for relief in the cross-claim be otherwise dismissed.
7.   I order that the plaintiff’s notice of motion dated 4 February 2009 be dismissed.
8.   I order that the plaintiff pay the first defendant’s costs of the said notice of motion.
9.   Except as otherwise provided by the preceding or earlier orders, I order that the plaintiff pay three quarters of the first defendant’s costs of the proceedings.
10.   The exhibits may be returned after 28 days.

The orders initially made by the Court of Appeal on 1 April 2010 were:

(1) Cross-appeal allowed.
(2) Set aside orders 1 and 9 in the court below.
(3) Appeal dismissed.
(4) Replace order 9 in the court below with an order:
Except as otherwise provided by the preceding or earlier orders, I order the plaintiff pay the first defendant’s costs of the proceedings.

(5) Direct the parties, within 14 days of the date of delivery of these reasons for judgment
(a) to provide to each judge hearing this appeal, agreed Short Minutes of the Order appropriate to be made in lieu of order 1 in the court below.
(b) in the event that agreement is not possible, to provide to each judge hearing this appeal their respective written submissions about the order that should be made in lieu of order 1 in the court below.
(6) Order the Appellant to pay costs of the Respondent of the appeal and of the cross-appeal.
(7) Reserve further consideration of the orders appropriate to give effect to these reasons for judgment.
(8) Dismiss with costs the Appellant’s Notice of Motion to receive further evidence.
(9) Dismiss with costs the Appellant’s application for leave to appeal from the trial judge’s order refusing leave to amend the Statement of Claim.
(10) Respondent to pay costs of the Appellant of the Notice of Motion seeking to strike out the Cross-Appeal.

These were supplemented on 3 August 2010 (see paragraph [27] above) by this order:

1. Pursuant to leave reserved on 1 April 2010 substitute for the judgment in para 1 of the Orders of the Equity Division of 25 March 2009, judgment for the First Defendant against the Plaintiff for $1,626,612.01 with effect from 25 March 2009.

It will be apparent from the preceding paragraphs that Ms Randall’s challenge is to orders made both at first instance and by the Court of Appeal. Insofar as the latter are concerned, it may seem counterintuitive for a judge at first instance to exercise a jurisdiction which may result in the setting aside of orders made by the Court of Appeal. This is particularly the case when it is recalled that the orthodox position must be that, even though only some aspects of White J’s orders were varied by the Court of Appeal, the operative decision is now that of the Court of Appeal which has replaced White J’s decision for all purposes: Forge v Australian Securities and Investments Commission(No 2) [2007] NSWCA 42 at [3]; (2007) 69 NSWLR 575. While that is the strictly correct position, the parties referred to “judgments and orders” and this judgment will also use that description.
The Council did not suggest that Mr Agresta should have brought these proceedings in the Court of Appeal. It was correct not to do so. In Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227, Dr Fleet had filed a summons in the Court of Appeal (as it were by way of originating process) seeking relief concerning numerous decisions of judicial officers at first instance. In considering the various heads of power which might have supported Dr Fleet’s summons, Campbell JA, in delivering the judgment of the Court, eliminated UCPR Part 36, r 36.15(1) on the basis that it was reserved either to a first instance judge exercising original jurisdiction or to the Court of Appeal incidentally in the course of disposing of a properly instituted appeal (emphasis added):

59 That leaves only UCPR 36.15(1) as a potential candidate for a head of power under which the proceedings are brought. But it is not available in the present case. For a judgment to be set aside under UCPR 36.15(1) is an exercise of original jurisdiction. The procedural mode by which UCPR 36.15(1) is invoked as a stand-alone source of power to set aside a judgment or order, is by an application to a first instance judge. The power under UCPR 36.15(1) can be exercised by an appellate court if, in the course of appellate proceedings properly instituted, the court is satisfied that a judgment was given or entered, or an order was made irregularly, illegally or against good faith. However, for the Court of Appeal to exercise that power incidentally, in the course of disposing of a properly instituted appeal, is quite a different thing to the Court of Appeal hearing proceedings begun for the purpose of invoking UCPR 36.15(1).

In the circumstances of this case Ms Randall challenges both orders made by White J in their original form and as varied by the Court of Appeal. I am satisfied that, as a single judge exercising original jurisdiction, UCPR Part 36, r 36.15(1) provides the power for a judge at first instance, in appropriate circumstances, to set aside orders made by the Court of Appeal. This is because the expression “a judgment or order of the court in any proceedings” in the rule extends, as a matter of construction, to orders made in proceedings in the Court of Appeal.
Ms Randall’s fundamental complaint is set out in paragraph 1 of the ASC:

By reason of the facts set out below, there was a miscarriage of justice in Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council (the judicial proceedings) whereby the City of Canada Bay Council (“Council”) procured the judgment/orders by its conduct by illegality or irregularity or against good faith undermining the judgments/orders warranting the exceptional course for which subrule 36.15(1) to the Uniform Civil Procedure Rules 2005 or the inherent power of the Court provides.

Quite apart from disputing the merits of Ms Randall’s claims, the Council submits that she does not have standing to seek the relief sought in the ASC, especially in relation to White J’s Judgment and the CA Judgment. It is logical for that submission to be considered first. The Court will then consider Ms Randall’s claim to have the judgments and orders set aside. Because the outcome of that issue will largely determine the utility of reinstating Phoenix, the Court will consider reinstatement and Ms Randall’s standing to seek that order at the end of these reasons.
The Court notes that in paragraph 8.2(3) of Mr Agresta’s submissions dated 30 August 2014, the claims in relation to a further misrepresentation (paragraph 56 of the ASC) and damages (paragraphs 57 to 64 of the ASC) have been withdrawn.

UCPR Part 36 r 36.15(1)

I will set the relevant rule out again for convenience:

36.15 General power to set aside judgment or order
(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

Mr Agresta’s submissions did not always distinguish between “irregularly, illegally or against good faith”, although a fair reading of those submissions suggests that the main emphasis was on “against good faith”. The Court will approach the argument on the basis that Ms Randall’s case was that any one or more of the three was made out. However, that approach must be understood against what is recorded in the next paragraph.
Mr Agresta also said on several occasions that Ms Randall was not putting the matter as high as “fraud” and the ASC in several places had deleted the word “fraudulent” or “fraudulently”. However, the Court has no doubt (and Mr Agresta ultimately accepted) that, putting semantic sensitivity to one side, Ms Randall’s case invited the Court to find fraudulent conduct or conduct tantamount to fraud. So much is apparent from headings in the ASC such as “False representation made knowingly” or allegations that Council officers shut their eyes to material facts or were reckless in making representations and thereby knowingly alleged what was false. The ASC also pleads that Council made representations that were untrue and known to the Council to be untrue.
In paragraph 4.3 of his written submissions of 30 August 2014 Mr Agresta submitted, “in effect, the Plaintiff has to establish a form of deceit by Council to the Court – the essence of which is dishonesty. The relevant intention is that the false statement shall be acted upon by the person to whom it is addressed”. Paragraph 12.2 of his submissions in reply of 23 November 2014 acknowledged “the parties have conducted the proceedings based on a claim of fraud”. Finally, paragraph 2.1(2) of Ms Randall’s submissions in reply dated 6 March 2015 confirmed that she sought a finding from the Court that the “Council fraudulently procured the judgment and orders to the proceedings between Phoenix and Council”.
Before turning to the leading authority, some observations about r 36.15 can be made by reference to its text:

It is discretionary (“may”).

The power in r 36.15 must be construed and exercised so as to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings and as best to ensure the attainment of the objects set out in s 57(1) of the Civil Procedure Act 2005 (NSW) (the “CPA”) (ss 56(2) and 57(2) of the CPA).

Rule 36.15 invites the Court to answer three questions:

Was the judgment or order given, entered or made irregularly, illegally or against good faith?

If yes to the previous question, has “sufficient cause” been shown to set aside the judgment or order?

If “yes” to the preceding question, should the Court exercise its discretion to set aside the judgment or order?

The leading summary of the principles relating to setting aside a judgment for fraud remains, in my respectful view, the judgment of Kirby P (as his Honour then was) and with whom Hope and Samuels JJA agreed in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538-539:

It is useful to state a number of principles which are established by law and which govern proceedings of the kind which the appellant wishes to bring.
First, the essence of the action is fraud. As in all actions based on fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires: Jonesco v Beard [1930] AC 298 at 301; McHarg v Woods Radio Pty Ltd (at 497).
Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment: see Lord Selborne LC in Boswell v Coaks (No 2) (1894) 6 R 167 at 170, 174; 86 LT 365 at 366, 368; Cabassi v Vila (1940) 64 CLR 130 at 147; McDonald v McDonald (1965) 113 CLR 529 at 533; Everett v Ribbands (1946) 175 LT 143 at 145, 146; Birch v Birch [1902] P 130 at 136, 137-138; Ronald v Harper [1913] VLR 311 at 318. This rule has an ancient lineage: see, eg, Shedden v Patrick (1854) 1 Macq 535 at 615, 622; Halsbury's Laws of England, 4th ed, vol 26, par 560 at 285. It is based upon a number of grounds. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed. If they have evidence of fraud which may taint a judgment of the courts, they should not collude in such a consequence by refraining from raising their objection at the trial, thereby keeping the complaint in reserve. It is their responsibility to ensure that the taint of fraud is avoided and the integrity of the court's process preserved.
Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief: Birch v Birch (at 136, 139); McHarg v Woods Radio Pty Ltd (at 498); Ronald v Harper (at 318). The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. This rule is founded squarely in the public interest in finality of public litigation and in upholding judgments duly entered at the termination of proceedings in the courts.
Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof, of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment: Cabassi v Vila (at 147, 148); Baker v Wadsworth (1898) 67 LJQB 301; Everett v Ribbands (at 145, 146). The other requirements must be fulfilled. In hard fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases of contradictory evidence, one party must be mistaken. He or she may even be deceiving the court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the courts would be even more burdened with the review of first instance decisions than they are. For this reason, and in defence of finality of judgments, a more stringent requirement than alleged perjury alone is required.
Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic: cf Perry v Meddowcroft (1846) 10 Beav 122 at 136-139; 50 ER 529 at 534, 535. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment: Ronald v Harper (at 318); Shedden v Patrick (at 643).
Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.

Insofar as Ms Randall relied upon the judgments and orders having been made or entered against good faith, I respectfully adopt what was said by Kirby P (as his Honour then was) about the equivalent District Court rule in Coles v Burke (1987) 10 NSWLR 429 at 437 (Samuels and McHugh JJA agreeing):

The genus which is involved in the phrase ‘irregularly, illegally or against good faith’ appears to me to be misconduct or dishonourable conduct of the person who procured the judgment which it is suggested undermines the authority of that judgment warranting the exceptional course for which r 12A provides.

Finally in this summary of the applicable principles, the Court notes that Ms Randall’s submissions in reply of 23 November 2014 say that “notwithstanding that the matter to be proved involves fraud, the standard of proof required of the plaintiff is proof on the balance of probabilities”. The point which those submissions do not address is what Kirby P referred to above (see paragraph [65] above) as “the strict proof which such a charge [of fraud] requires”. In other words, while it is true to say fraud must be established on the balance of probabilities, the seriousness of an allegation of fraud means that the statutory manifestation of the Briginshaw standard (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) in s 140(2) of the Evidence Act 1995 (NSW) must be applied:

140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.

Bearing the principles in mind as set out in paragraphs [60] to [67] the Court now turns to consider Ms Randall’s case to set aside the judgments and orders against Phoenix. Mr Agresta put that case by reference to two basic complaints, which may be conveniently referred to as the “consent authority” point and the “no valid termination” point. The Court will consider each of these in turn after dealing with the question of Ms Randall’s standing and making a general observation about the utility of the relief sought in these proceedings. The Particulars also referred to a third complaint based on White J’s and the Court of Appeal’s conclusion as to the proper construction of clause 15(d) of the Leases. This complaint was not developed in argument. Had it been, it would have been rejected for essentially the same reasons for which the Court has rejected the other two complaints.

The Council drew attention to the decision of Austin J in Australian Competition and Consumer Commission v Australian Securities Investment Commission [2000] NSWSC 316; (2000) 174 ALR 688, where his Honour said:

27 The wording of the section is very broad, and the cases confirm that it gives the Court a wide discretion. The Court takes into account the circumstances in which the company came to be dissolved; whether, if the order were made, good use could be made of it; and whether any person is likely to be prejudiced by the reinstatement: Re Kilkenny Engineering Pty Ltd (in liq) (1976) 1 ACLR 285; Drysdale v ASC (1992) 10 ACLC 1427; Re Steelmaster Pty Ltd (in liq) 91992) 6 ACSR 494.
…
54 The reported cases say that the Court should consider whether good use can be made of the reinstatement. The Court will not make an order which is futile, and an order could well be futile if the reinstated company is left in liquidation without the funding necessary to permit the liquidator to do any work. In the Steelmaster case the Court addressed that problem by making an order for the applicant to pay the costs and disbursements of the liquidator incurred as a result of the reinstatement, including the cost of any further dissolution proceedings under s 509 of the Corporations Law. The order may have been made with the applicant's consent, but would in any case have been justified by s 601AH(3)(b).

The claim sought to be made by Phoenix vests in the liquidator. Neither Ms Randall nor Mr Agresta could fund the liquidator to bring the claim. Any claim by the liquidator would be met with an application for security for costs which could not be provided by Ms Randall or Mr Agresta. The company would therefore have no capacity to pursue any claims. Therefore to reinstate it would be futile.
Insofar as Ms Randall claims that she is a creditor of Phoenix, she is not aggrieved by Phoenix having been deregistered because she does not have a claim against the Council.
Insofar as Ms Randall sought the judgments referred to in paragraph [186] above the Council submitted that a claim for those judgments could not be asserted in these proceedings because Phoenix was not a party to these proceedings.

Reinstatement – resolution

The Court accepts the Council’s submissions as to why reinstatement of Phoenix and the additional orders sought in reliance on s 601AH ought not be made. The Court’s principal reasons may be summarised as:

Even assuming in Ms Randall’s favour that she was a person aggrieved within the meaning of s 601AH, the power to reinstate Phoenix would not be exercised because just as the grounds upon which Ms Randall had relied to seek to have the judgments and orders set aside had failed, the result would be the same if Phoenix were reinstated and sought to rely on those arguments. There is no point in reinstating Phoenix.

Even if the judgments and orders were set aside, the clear inference is that Phoenix would remain insolvent. There was no evidence adduced as to how it could possibly repay the large amount of rent which, on any view, it owed to the Council. The Court repeats its observations in paragraph [90] above.

Orders of the kind sought by Ms Randall under s 601AH (see paragraph [186] above) went well beyond the power conferred by that section. In any event, the section is only enlivened if the Court ordered that Phoenix should be reinstated (see s 601AH(3)). In this case the Court will not make such an order. Therefore the question of making the wide ranging orders sought by Ms Randall does not arise.

Miscellaneous

Ms Randall made a number of submissions which, with no disrespect intended, I have described as “miscellaneous”. That is because they do not appear to fall within Ms Randall’s primary case based in fraud. The miscellaneous matters are further examples of additional arguments which she sought to raise. They are no more than additional arguments which Phoenix could have, but apparently did not, raise in the earlier proceedings. Because Phoenix was legally represented, none of these additional arguments, taken individually or together, would, even if correct, warrant the Court setting aside the judgments and orders. For completeness I will deal with those miscellaneous arguments.

Miscellaneous – no right of re-entry

Ms Randall submitted that because the Leases in their original form included the right of re-entry implied by s 85(1)(d) of the Conveyancing Act, which was removed when the Leases were amended, there was no right to re-entry on the part of Council.
The Council submitted in response that Ms Randall’s argument gave rise to the absurd conclusion that even if there was non-payment of rent for protracted periods by Phoenix, the Council could never seek to re-enter and take possession of the premises. The Council drew attention to the fact that in none of the earlier proceedings had Phoenix sought relief against forfeiture (on any ground) or to rely on the alleged exclusion of the implied power under s 85(1)(d) of the CA. The Council submitted that Phoenix’s conduct and failure to pay rent was repudiatory and the Council was therefore entitled to accept that repudiation by terminating the Leases at common law.
The Court accepts the Council’s submissions. They accord with the conclusion reached by White J which, with respect, was plainly correct (see paragraph [15] above). Although nothing turns it, the Court notes that the premise of Ms Randall’s argument is not quite correct because the right of re-entry was expressly set out in clause 15 of the unamended Leases, which was removed by the Deeds of Variation.

Miscellaneous – wrongful re-entry

Ms Randall submitted that, for the various reasons she had advanced which have been dealt with in other sections of these reasons, the termination of the Leases was invalid and Council wrongfully re-entered and took possession of Phoenix’s fixtures.
Council submitted that, for the reasons which it had given in relation to Ms Randall’s various submissions, its re-entry by taking possession of the relevant premises and fixtures was not contrary to law.
Council relied on clause 10 of the Leases:

10.   REMOVAL OF FIXTURES
(a)   The Lessee will at the expiration of the term or any renewal thereof by effluxion of time peaceably surrender and yield up unto the Lessor without cost or compensation of any nature or kind the demised premises with the appurtenances together with all buildings, erections and fixtures now or hereafter to be built or erected thereon other than advertising structures erected by the Lessee in good and substantial repair and condition in all respects. The Lessee shall (unless otherwise mutually agreed by the Lessor and the Lessee) remove any advertising structures erected by it upon the land and in doing so shall make good any damage caused thereby.
(b)   The Lessee will on the determination of the said term or any renewal thereof before expiration of the said term or renewal thereof, peaceably surrender and yield up until the Lessor without cost or compensation of any nature or kind the demised premises with the appurtenances together with all buildings, erections and fixtures now or hereafter to be built or erected in good and substantial repair and condition in all respects.
(c)   Where the Lease is determined, the Lessor may require the Lessee at its cost upon the expiration or sooner determination of this Lease, demolish and remove from the demised premises all buildings, erections, fixtures and appurtenances constructed by it or on its behalf on or within the demised premises and restore the demised premises to reasonably the same condition as at the date of this Lease. All services to the demised premises in the nature of sewerage, water, gas and electricity shall be sealed and capped to the satisfaction of the relevant supplier or authority but otherwise the piping and conduiting of such services shall remain in place.

The Council submitted that clause 10 of the Leases drew a distinction between expiration and determination (i.e. termination) of the Leases. The Leases were determined (terminated) thereby enlivening the Council’s rights under clauses 10(b) and (c) in favour of the Council. The Council had a contractual right upon termination of the Leases to title and ownership of the advertising signs (being fixtures) erected by Phoenix on its land.
Ms Randall has failed to demonstrate that there is any basis on which it could be said that the Council’s re-entry and taking of possession was wrongful. The Councils’ submissions to its right to the fixtures are correct.

Miscellaneous – the ANZ Loan to Phoenix

Ms Randall submitted that in May 2003 (by which time Phoenix was in default for non-payment of rent) the ANZ Bank approved a loan to Phoenix that was intended to provide it with funds to pay the outstanding rental to the Council. It was a condition of that loan that the Council provide its consent to Phoenix securing the Leases by entering into a deed with Phoenix and the ANZ Bank. Council declined to enter into such a deed. Ms Randall submitted that in failing to enter into the deed, the Council was in breach of clause 17(a) of the Leases which provided that “in any case where pursuant to these presents the doing or execution of any act matter or thing by the Lessee is dependent upon the consent or approval of the Lessor such consent or approval shall not be unreasonably withheld”.
Council made three submissions, which the Court accepts as correct, to demonstrate why Ms Randall’s reliance on this argument failed.
First, the claim had never been raised before White J or the Court of Appeal, notwithstanding that all the relevant facts must have been known to Phoenix through Mr Agresta and Ms Randall. Moreover, it was no part of any pleading or particulars in the present proceedings. This last point was sufficient for the Court to disregard this part of Ms Randall’s claim.
Second, the only entity that could advance this claim was Phoenix. It was not and could not be suggested that there had been any misrepresentation to White J or the Court of Appeal about this claim.
Third, even if it were to be considered, the claim was bad in law. Clause 17(a) related to “where pursuant to these presents the doing or execution of any act matter or thing by the Lessee is dependent upon the consent or approval of the Lessor”. There was no relevant “doing or execution of any act or thing by the Lessee” which the Leases (in either their original or amended form) made dependent upon the Council’s consent. For example, the Leases were silent on what was to occur if Phoenix wanted to grant security over the Leases and the obligation to pay rent was certainly not dependent upon the Council consenting to anything. Similarly, entering into the deed did not fall into that category.

Miscellaneous – Phoenix’s offer to buy the freehold

On 20 February 2003 (rental under the Leases having been due and payable on 1 February 2003) Phoenix wrote to Ms Rosser proposing to buy the freehold of the land on which the advertising structures were built “for an agreed amount on execution of documents” or to enter into a 21 year lease commencing at a rate of $20,600 per month. On 28 February 2003 the Council’s solicitors wrote to Phoenix and responded to the proposals in its letter of 20 February 2003 by saying “your proposals therein are unacceptable to our client”.
Ms Randall submitted that by the solicitors’ letter Ms Rosser and thereby the Council fraudulently misrepresented to Phoenix that Phoenix’s proposal was unacceptable to the Council. The basis of this allegation was that s 377(1)(h) of the LGA (relating to compulsory acquisition etc – see paragraph [130] above) required there to have been a decision of Council – which there had not been. Ms Rosser had gone off “on a frolic of her own” by instructing the Council’s solicitors to reject Phoenix’s proposal.
Like the previous issue, this matter is not pleaded or particularised in the present proceedings. That is a sufficient basis for the Court to disregard it and the Court does so. However, in any event, the argument is wrong.
The Court accepts the Council’s submission that s 377 of the LGA does not require every decision to be considered by Council. Rather, it sets out what decisions Council can delegate and what it cannot.
The Court concludes that there was no obligation on Ms Rosser to submit Phoenix’s proposal to a meeting of the Council. Refusal of the offer and instructing the solicitors to communicate that refusal was within Ms Rosser’s delegation under clause E4K of the 2001 Delegation to “engage … legal counsel” and Clause E4U of the 2001 Delegation to “negotiate and settle matters in the best interests of the Council, taking legal advice as deemed necessary by the General Manager”. Furthermore, there is no evidence that could support a serious finding such as fraud against Ms Rosser in relation to the rejection of Phoenix’s offer.

Miscellaneous – the Council’s conduct in the previous proceedings

Again, the matters Ms Randall raises under this heading are not pleaded or particularised in the present proceedings. That is a sufficient basis for the Court to disregard them and the Court does so. However, in any event, the matters raised do not assist Ms Randall’s case.
Under this heading Ms Randall raises, as I understand it, two points. The first is a criticism that before both White J and the Court of Appeal the Council did not rely on any delegation of authority or purported ratification or call any person to support the Council’s contention that it had validly terminated the Leases by the Termination Notice. The answer to this argument is that the Council did not have to. Unless and until something was raised by Phoenix, the Council discharged its onus of proof to establish the termination of the Leases by tendering the Termination Notice (recognising that it also had to prove – which it did - the basis upon which the Council said it was entitled to issue the Termination Notice). Phoenix did not raise any matter, for example by way of defence to the Council’s cross‑claim, that would have required the Council to reply by putting the delegation or the ratification into evidence. Therefore, this criticism goes nowhere.
Ms Randall’s second complaint is that the Council was in contempt of court for failing to produce documents in answer to a subpoena. The background is as follows.
On 13 December 2004, Phoenix’s then solicitors issued a subpoena to the Council seeking, among other things, the following documents:

1.   Copies of all documents evidencing the General Manager’s delegated authority from:
(a)   Concord Council’s governing body;
(b)   City of Canada Bay’s governing body;
to terminate the Leases entered into between Concord Council and Phoenix Commercial Enterprises Pty Limited, the subject of these proceedings.
2.   Copies of all:
(a)   Reports;
(b)   Submissions;
considered prior to 26 June 2003 and copies of all resolutions made prior to 26 June 2003 by:
(i)   Concord Council’s governing body;
(ii)   City of Canada Bay’s governing body;
regarding delegating authority to the General Manager regarding the Leases entered into between Concord Council and Phoenix Commercial Enterprises Pty Limited, the subject of these proceedings.
3.   Copies of all:
(a)   Reports;
(b)   Submissions;
considered prior to 26 June 2003 and copies of all resolutions made prior to 26 June 2003 by:
(i)   Concord Council’s governing body;
(ii)   City of Canada Bay’s governing body;
regarding terminating the Leases entered into between Concord Council and Phoenix Commercial Enterprises Pty Limited, the subject of these proceedings.

No documents were produced in answer to those paragraphs. The non-production in answer to paragraphs 2 and 3 is consistent with the evidence in these proceedings as to how Council dealt with the Leases, in particular with their termination. Ms Randall’s complaint is more pointed in relation to the non-production in answer to paragraph 1 of the subpoena.
The subpoena was returnable on 8 February 2005. On 15 February 2005 Phoenix’s then solicitors wrote to the Council’s solicitors and noted that there had been no production in relation to paragraph 1 of the subpoena. Their letter goes on to say “we therefore take it that no documents exist evidencing the General Manager’s delegated authority to terminate the relevant leases. Please confirm our assumption this regard is correct.” Later in the same letter Phoenix’s solicitors say:

From our review of your client’s evidence and documents produced by your client, it seems clear that your client did not issue delegated authority to the General Manager authorising her to terminate the relevant leases. Would you please confirm by return that in fact your client did not issue the relevant delegated authority.

Any reply to that letter from the Council’s solicitors was not in evidence in these proceedings.
Ms Randall submits that the document that was in evidence in these proceedings comprising the 2001 Delegation should have been produced in answer to the subpoena. By not producing that document the Council was in contempt of court and, to quote Ms Randall’s written submissions, “Council should not now be rewarded for its contempt of court”.
The Council’s written submissions dated 13 October 2014 respond to Ms Randall’s submissions:

10. All allegations of any misconduct on the part of Council’s representatives in the former proceeding are without foundation.
11. Council made strategic forensic choices. The allegations in relation to the conduct of Council are mischievous, without foundation and bear no relation to any pleaded issue in the proceedings.

Amid the plethora of issues that were raised before the Court in oral submissions, this particular complaint was not given much emphasis. A finding of contempt of court is a serious matter and should not be made, as it were, by a side wind in other proceedings as opposed to by the formalities of a separate motion containing a statement of charge. Were it necessary for the Court to come to a conclusion on this question, I would have relisted the matter for further, focused argument. No doubt the Council would have contended, and such a contention is clearly arguable, that in the context of the other paragraphs of the subpoena it had understood the documents that were sought by, for example, paragraph 1 to be confined to documents dealing with a specific delegation to the General Manager to terminate the Leases. So understood, Council’s non-production is entirely consistent with the evidence in these proceedings that there was no specific delegation of an authority to terminate the Leases.
As it happens, it is not necessary for the Court to come to a final view on whether the Council failed to comply with the subpoena and whether such non-compliance constitutes a contempt of court. Approaching the matter very broadly, the issue in these proceedings is whether something happened in the conduct of the earlier proceedings which was the fault of the Council and which makes it unjust for the earlier judgments and orders to stand. Ms Randall’s present complaint does not constitute such a ground. It may be tested in this way. There was no injustice done to Phoenix by reason of the non-production of the 2001 Delegation because if it had been produced and points taken that would have raised the issue of the validity of the Termination Notice, Ms Rosser’s authority and the Council’s ratification, then for the reasons given in paragraphs [170] to [180] above the outcome for Phoenix would have been no different. In other words, any challenge by Phoenix based on those matters would have failed. The non-production of the 2001 Delegation, (assuming, without deciding, that it was required to be produced in answer to the subpoena) would have made no difference and, therefore, that non-production has not resulted in any injustice that would entitle Ms Randall to the relief which she seeks in these proceedings.

Miscellaneous – the Council’s conduct in these proceedings including the need for a Jones v Dunkel inference

Ms Randall criticised the Council for not calling any witnesses in these proceedings. That was a forensic decision properly open to the Council. Nothing raised by Ms Randall in these proceedings would engage the principles in Jones v Dunkel to draw an inference adverse to the Council for not calling the Mayor and various Council officers who have had an involvement in the dispute with Phoenix.

Miscellaneous – no reliance on the 2001 Delegation

Ms Randall put a number of submissions designed to show that the Mayor (or anyone else) did not rely on the 2001 Delegation in relation to the Termination Notice. There are at least three answers to these submissions.
First, given the Court’s conclusions set out in paragraphs [170] to [180] above, the Mayor’s role, while no doubt prudent and appropriate from the point of view of good management, was legally irrelevant to the question of the validity of the Termination Notice. The Court has concluded that executing the Termination Notice was in any event within Ms Rosser’s authority under the 2001 Delegation.
Second, even if it were an act of the Mayor acting under delegation (which, as an alternative, the Court has found was the case), Ms Randall’s submission that, to be valid, an exercise of delegated power by the Mayor had to be reported back to the Council by reason of sub-clause 5 of the 2001 Delegation is incorrect. There is no express or implied term in the 2001 Delegation that would have that result.
Third, reliance upon or even cognisance of the 2001 Delegation is unnecessary for the purpose of determining whether an act was validly done on behalf of the Council. So, for example, if Ms Rosser did something on behalf of the Council that was within her authority under the 2001 Delegation, that act was validly done on behalf of the Council whether or not Ms Rosser relied upon or even knew of the 2001 Delegation. The converse is also true: the fact that she might have thought she was doing something authorised by the 2001 Delegation would not make it valid if as a matter of the relevant statutes and the proper construction of the 2001 Delegation it was not authorised.

Miscellaneous – evidence

Ms Randall in her written submissions invited the Court to reconsider rulings made excluding certain evidence. The Court accepts the Council’s submission that no new basis has been demonstrated by Ms Randall that warrants those rulings being revisited either as a whole or individually. The evidence remains rejected.

Conclusion

The result is that the Amended Statement of Claim will be dismissed. The Council has foreshadowed that it will seek an order that, in addition to Ms Randall, Mr Agresta pay its costs of the proceedings. In the light of that application it will be necessary for the Court to fix a date for argument. SCHEDULE ONE - 2013-5606 (5.88 KB, pdf) , SCHEDULE TWO - 2013-5606 (5.62 KB, pdf)

Amendments

30 November 2015 - Paragraphs [142] and [179] "Basten" changed to "Barrett".

Decision last updated: 30 November 2015

Medium Neutral Citation:	Carlene Randall v City of Canada Bay Council (No 4) [2015] NSWSC 1759
Hearing dates:	5, 6 May; 18 July; 28 November 2014; 21 September 2015. Further written submissions – 10 December 2014; 30 January; 6 March 2015
Decision date:	25 November 2015
Jurisdiction:	Equity
Before:	Kunc J
Decision:	Amended Statement of Claim dismissed
Catchwords:	JUDGMENTS AND ORDERS – Amending, varying and setting aside – Whether third party has standing to set aside judgment – Whether submissions amounted to fraudulent misrepresentations – First instance judge setting aside Court of Appeal orders – UCPR Pt 36; r 36.15 COMPANIES – Dissolution – Reinstatement of registration – Who may apply – Person aggrieved – Whether any utility in reinstatement – Company would remain insolvent - Corporations Act 2001 (Cth), s 601AH(2)
Legislation Cited:	Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Corporations Act 2001 (Cth) Crimes Act 1900 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 (NSW) Evidence Act 1995 (NSW) Fair Trading Act 1987 (NSW) Interpretation Act 1987 (NSW) Local Government Act 1993 (NSW) Local Government (General) Regulation 1999 Local Government (Tendering) Regulation 1999 Roads Act 1993 (NSW) The Civil Procedure Rules 1998 (UK) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 [2014] NSWCA 409 Abdelmamoud v The Egyptian Association in Great Britain Ltd [2015] EWHC 1013 (Ch); [2015] Bus LR 928 Australian Competition and Consumer Commission v Australian Securities Investment Commission [2000] NSWSC 316; [2000] 174 ALR 688 Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Carlene Randall v City of Canada Bay Council [2014] NSWSC 427 Carlene Randall v City of Canada Bay Council (No 2) [2014] NSWSC 964 Carlene Randall v City of Canada Bay Council (No 3) [2015] NSWSC 1397 Casali v Crisp [2001] NSWSC 860 Coles v Burke (1987) 10 NSWLR 429 Davison v Vickery’s Motors Ltd (In liq) [1925] HCA 47; (1925) 37 CLR 1 Donmastry Pty Ltd v Albarran [2004] NSWSC 632; (2004) 49 ACSR 745 Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227 Forge v Australian Securities and Investments Commission (No 2) [2007] NSWCA 42; (2007) 69 NSWLR 575 In the matter of Peter Conyers Pty Ltd (In liq) (1996) 14 ACLC 1835 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Ltd v Fletcher [2014] NSWCA 31; (2014) 85 NSWLR 644 Lennard’s Carrying Company Limited v Asiatic Petroleum Company Limited [1915] AC 705 Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 McHugh & Anor v Eastern Star Gas Ltd & Ors [2012] NSWCA 169 Millbrook Finance Pty Ltd v Australian Securities Investments Commission, in the matter of Kekpek Pty Ltd [2014] FCA 620 Minister for Natural Resources v New South Wales Aboriginal Land Council & Anor (1987) 9 NSWLR 154 Nicholson v Nicholson (1974) 2 NSWLR 59 Perpetual Trustees Australia Ltd v Heperu Pty Ltd & Ors (No 2) [2009] NSWCA 387; (2009) 78 NSWLR 190 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2009] NSWSC 17; (2009) 14 BPR 27,565 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council; unreported; Young JA; 12 July 2010 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council (No 2) [2010] NSWCA 183 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 205 Rail Signalling Services Pty Ltd v Victoria Rail Track [2012] VSC 452 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1987) 8 NSWLR 270 Union Bank of Australia Ltd v Rudder [1911] HCA 39; (1911) 13 CLR 152 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Category:	Principal judgment
Parties:	Carlene Randall (Plaintiff) City of Canada Bay Council (Defendant)
Representation:	F. Agresta (by leave for the Plaintiff) Counsel: P.T. Newton (Defendant) Solicitors: Mills Oakley Lawyers (Defendant)
File Number(s):	2013/5606
Publication restriction:	No