Rosina Florence Upton v Tvw Enterprises Limited
[1985] FCA 400
•15 AUGUST 1985
Re: ROSINA FLORENCE UPTON and LESLIE CHARLES UPTON
And: TVW ENTERPRISES LIMITED and HODD WILKINS PTY LTD
No. WAG 103 of 1984
Trade Practices
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Forster J.
CATCHWORDS
Trade Practices - misleading or deceptive conduct - shop leases in new cinema and shopping complex - various alleged representations as to profitability and resale value of lease - conversion by detention - whether lessor intended to keep stock in defiance of applicants - measure of damage - set off.
Trade Practices Act s.52, s.82, s.87(1A)
Clayton v LeRoy (1911) 2 KB 1031
HEARING
PERTH
#DATE 15:8:1985
ORDER
The application brought under the Trade Practices Act be dismissed.
There be judgment for the applicants against the respondent TVW Enterprises Limited for return of stock or payment of Eight thousand dollars ($8,000) with the respondent being entitled to a set-off exceeding Eight thousand dollars ($8,000).
The applicants pay to TVW Enterprises Limited 95% of its costs of these proceedings to be taxed and to the second respondent the whole of its costs of these proceedings to be taxed.
JUDGE1
The applicants who are husband and wife were in partnership in a relatively small business called The Bridal Box situated at Morley Shopping Centre in suburban Perth, dealing in bridal wear and accessories and fabrics. The business was principally conducted by the first applicant (Mrs Upton) and the second applicant (Upton) was almost a sleeping partner but carried out certain minor tasks such as occasional deliveries and things of that sort. Although Mrs Upton consulted him about some matters, the evidence makes it plain that all important decisions were made by her.
The second respondent (Hodd Wilkins) had been engaged by the first respondent (TVW) as agent to arrange the letting of shops in a building development in which it was engaged in the city of Perth. This development, known as Cinema City, comprised four cinemas and a "T" shaped arcade of shops, the of the "T" running between Hay Street and Murray Street and the arm of the "T" running from this to Barrack Street. At relevant times and indeed still, what is known as the Hay Street Shopping mall, ran as far east as Barrack Street where it ceased. The Cinema City development was to the immediate east of Barrack Street.
On 26 February 1980, Wilkins, the managing director of Hodd Wilkins, called to see Mrs Upton in the shop in Morley in order to discuss the possibility of her starting a similar business in the Cinema City arcade. It is a matter of dispute between Mrs Upton and Wilkins as to which of them arranged this call. I think it more probable than not that Mrs Upton telephoned Wilkins to ask about Cinema City and its possibilities for her and that Wilkins' call was in response to this telephone call, and I so find. Wilkins took with him to the meeting and gave to Mrs Upton a plan of the Cinema City complex and showed her which shops were available for letting. Wilkins was impressed with the appearance of the Bridal Box and told Mrs Upton that he thought a similar shop would do well in the Cinema City complex. Wilkins says that at this meeting he explained that most of the shops in that portion of the arcade running between Hay Street and Murray Street would be food outlets of various sorts. This was planned because this portion of the arcade runs up from Murray Street to the entrance foyer for the cinemas which is close to Hay Street and it was thought that the food shops would complement the cinemas. In what became described in evidence as the Barrack Street finger of the arcade, that is, the arm of the "T", it was planned to have specialty shops, a generic description into which the Bridal Box fell. I find that Mrs Upton was made aware at this first meeting that there would be quite a number of food shops in the top of the "T" and was also made aware of the usages to which those of the other shops which had been let would be put. She showed interest in shop 7 which was at the Barrack Street end of the Barrack Street finger and which had frontages on to Barrack Street and into the arcade. Rents and other occurring outgoings were discussed between Mrs Upton and Wilkins.
On 18 March 1980 Mrs Upton and Upton wrote to Wilkins setting out a proposal to lease shop 13. This was plainly a mistake and was conceded to be so by Mrs Upton who meant to write shop 7 instead of shop 13. This admitted mistake accepted by Wilkins as such is of some interest later. Wilkins replied on 20 March offering a compromise on the rent. On 21 April Mr and Mrs Upton went into Wilkins' office where further discussions occurred. On the same day Wilkins sent or gave to the Uptons a formal offer to lease for their signature. On 21 April Upton signed a letter to Wilkins typed by Mrs Upton pointing out a mistake in the area to be leased. Wilkins replied on 7 May suggesting that the Uptons simply alter the area in the offer to lease and initial the alteration. On 13 May the applicants attended at Wilkins' office again and discussed this and questions relating to the ceiling and the shop window. The offer to lease was then signed. This offer was accepted with qualification and Wilkins so informed the applicants by letter of 30 June. The lease was in due course sent to the Uptons. Further negotiation, now irrelevant, ensued. On 12 August Wilkins called a meeting of all tenants to be held on 27 August in the entertainment centre so that the proposed promotional schedule for the opening of Cinema City might be explained to them.
Mr and Mrs Upton attended this meeting and were unimpressed by what they saw and heard, so much so that on 1 September they wrote to Hodd Wilkins saying that "with regret after careful consideration we have decided to withdraw from the project and are returning the leases unsigned".
It is important to decide what were the reasons for this withdrawa1. The Uptons' letter was delivered by courier and Wilkins spoke to Mrs Upton on the same day and told her he thought she was making a mistake. He said in evidence that her two complaints were first, that the promotional activities described at the meeting on 27 August seemed geared to the promotion of the cinemas and placed little if any emphasis on the shops in the arcade generally and in particular on her shop, and second, that a display board advertising films placed at the Barrack Street end of the Barrack Street finger would detract from her window display in shop 7. As I understood her evidence, Mrs Upton withdrew because there were too many food outlets, and that as a consequence the arcade was not going to be as exclusive or high class as they had been led to believe; "you know it could not be exclusive with so much food". Upton shared this general view; "it was more of a food hall than it was a shopping centre". Upton also said in evidence but Mrs Upton did not, that the promotion appeared to him to be geared towards the cinemas and not the shops in the arcade; "it seemed to me, and the whole context of the presentation was, not for the shopkeepers' benefit but for the cinemas", and also "after we had been to the meeting at the entertainment centre and seen all the promotions that had been put there we came away feeling that it was not quite for us".
Mrs Upton said nothing in evidence in chief about the advertising sign for films and in cross-examination said that she could not remember any discussion about the sign. Upton in cross-examination was rather confused on this issue. He first said that at the site meeting to which I refer in detail later, Sweeney told him there would be a sign which would be flashing on and off and in Upton's view this sign would have conflicted with the display in the Uptons' shop. A few moments later he said that he did not recall discussing the flashing lights at that meeting. This confusion was never resolved.
After the site meeting, Wilkins wrote to Mrs Upton and the first paragraph of his letter is as follows -
"Thank you for attending our meeting on site today and I trust we have reassured you as to the effect our arcade promotions will have on the complex and particularly your tenancy area."
Mrs Upton never dealt with this first paragraph either in a letter or any other way which, in my view, tends to confirm that this was the thing uppermost in her mind when deciding to withdraw. In a letter of 18 September to Rawlinson Roberts, the project co-ordinator of the complex, Wilkins made reference to the applicants' intention to withdraw from the project "owing to certain arcade displays which they considered to conflict with their tenancy display".
I have found that Mrs Upton was made aware at her first discussion with Wilkins that there would be food outlets of various sorts in the section of the arcade that runs between Hay Street and Murray Street and I do not accept that the presence of these food outlets already known was a reason for the applicants to withdraw and to return the leases. I find that the reasons were first, the perceived over emphasis in the promotion of the complex on the cinemas and, to a lesser extent, the presence of the flashing sign.
There is a question as to the firmness of the applicants decision to withdraw from the project. No doubt they returned the leases accompanied by letter expressing their intention to withdraw but a number of matters revealed by the evidence suggest that this decision was not incapable of being changed. In the first place they came quite willingly to the site meeting and in the second place notwithstanding the return of the leases Upton continued to make sketch plans of proposed layouts for shop 7. In the third place Upton's evidence is that very soon after meeting Sweeney in shop 7 he (Upton) spoke to him about the misplacing for their purposes of the hand basin in the shop, quite unnecessary if the applicants no longer had any interest in taking the shop. Finally, the Uptons say that when it was first suggested that they might take a lease of shop 13 on the opposite side of the Barrack Street finger, Mrs Upton said words to the effect that they were only interested in one shop. These are odd circumstances, inconsistent with an irrevocable decision to withdraw from the project and I conclude therefrom that the applicants needed very little persuading to take shop 7, notwithstanding their earlier withdrawa1. In these circumstances I think it likely that Sweeney's reassurance about the promotion may well have been enough to persuade them. If this is so it would render unnecessary the representations alleged in the statement of claim to have been made.
In any event Wilkins was concerned at the loss of a prospective tenant within a comparatively short time of the proposed opening day for the complex. He invited the applicants to attend at the complex in order to discuss the matter and in order, if possible, to allay their fears and answer their objections. He also arranged for a Mr Sweeney to attend. Sweeney was then a TVW group executive responsible for the Cinema City project, a position he had held since before any plans were even drawn.
The date and time of the site meeting are in dispute. Wilkins says that the meeting took place at 9.30 a.m. on Monday 15 September and this is supported by an entry in his appointment diary and by the reference in the first paragraph of his letter of 15 September quoted above to "our meeting on the site today". The Uptons say that the meeting took place on Thursday the 11th at 10.30 a.m. This is supported by the evidence of Mrs Hornemann who said that she came in to look after the Morley shop on a Thursday so that Mr and Mrs Upton could go to the meeting. It is also supported to some extent by a note Mrs Upton made in the back of a 1979 diary to which I will need to return later. Sweeney is unable to say when the meeting took place with any certainty. I find it very difficult to resolve this conflict. The precise date and time of the meeting are not very important since all are agreed that the meeting took place. I think it is marginally more probable that the meeting took place on Monday 15th September.
The precise details of the meeting are not clear. I am unable to make precise findings as to who went where and with whom since Wilkins and the Uptons are in some conflict with each other and Sweeney does not remember. Broad findings can however be made. All four persons gathered in or just outside shop 7 and Sweeney explained in some detail the promotion proposed for the opening of the centre and the continuing promotions thereafter. This was something he had done frequently before and he explained that whereas the promotion for opening night placed emphasis on the four cinemas the continuing promotions such as the wrap around sheet on a newspaper were directed as much to the shops in the arcade as to the cinemas. So far as the evidence goes the matter of the flashing sign appears not to have been dealt with. All that I know about this is that it is now gone.
After conversation in and about shop 7 the party moved off to inspect the cinemas and their operation was explained by Sweeney who also pointed out some features said to be unique such as the ramp to permit access by disabled persons. Mrs Upton was impressed by the size of the cinemas and appreciated that they would bring a large number of people to the complex, a fact which she had not previously realised. The party moved back from the cinemas towards Barrack Street. Upton was walking with and talking to Sweeney and Mrs Upton was walking with and talking to Wilkins. When the party got back to near Barrack Street Upton and Sweeney went a little way down Barrack Street and Mrs Upton and Wilkins stayed in the arcade in conversation.
During the course of the discussion with Wilkins Mrs Upton expressed interest in leasing portion of shop 13 immediately opposite shop 7 in the Barrack Street finger and having a frontage to Barrack Street as shop 7 did. Wilkins says that at some previous time Mrs Upton had shown a passing interest in shop 13. The mistake in Mrs Upton's first letter of 18 March 1980 may be significant. However this may be I am satisfied that Mrs Upton asked Wilkins about the possibility of leasing shop 13 in order to sell fabrics there. I think it is most unlikely that Sweeney suggested to Upton that Mrs Upton might like to take a lease of shop 13 as the Uptons say. The letting of shops was not Sweeney's concern and it must have been plain, as is the fact that Mrs Upton was the dominant partner and Upton would have made no such major decisions. Had Sweeney been minded to suggest that the Uptons might take shop 13, I think that he would have made the suggestion to Mrs Upton. In any event discussions concerning shop 13 occurred between Mrs Upton and Sweeney at the site meeting and in due course the Uptons took a lease of this shop as well as shop 7.
Until near the end of the trial it had been pleaded that Wilkins in Sweeney's presence made certain representations to the Uptons. Upton's evidence made it clear that apart from one thing which I mention later, he heard none of the alleged representations. It also made it clear that Sweeney could not have heard them either. Sweeney had no recollection either way. The statement of claim was amended so as to allege that Wilkins made the following representations to Mrs Upton -
"(a) That the complex would have a large number of people passing through the premises, 'at least 5,000 people each day'.
(b) That by leasing premises in the complex the applicants would be acquiring a valuable asset which would be worth $200,000.00.
(c) That the Hay Street Mall was to be extended to Pier Street so that the complex would be the shopping heart of Perth, 'in a class of its own' as a business opportunity for tenants and quite unique.
(d) That if the applicants leased premises in the complex to retail bridal wear they could expect to earn gross takings with respect to one portion of the complex known as Shop 13 of $3,000 per week and with respect to another portion known as Shop 7, of $7,000 per week. The second respondent further represented to the applicants that they 'could not go wrong' by opening a business in the complex.
(e) That Shops 13 and 7 were in a better position than the Sugar House shop which achieved takings of $12,000.00 per week."
It is pleaded that these representations were false and constituted misleading and deceptive conduct as a result of which the Uptons entered into leases of shops 7 and 13 and as a consequence suffered loss. Damages are claimed as a consequence of this loss.
Before dealing with these representations it is appropriate that I should express in general terms my view of the credibility of Mrs Upton and Wilkins since theirs is the only oral evidence concerning the making of these representations with the minor exception of Upton's evidence concerning the representation of 5,000 people per day. I had a prolonged opportunity to observe each of them in the witness box and each was cross-examined thoroughly and at a considerable length. Mrs Upton is an intelligent woman who remained self controlled and self possessed throughout her long time in the witness box. Her evidence was, in my view, affected by the financial disaster she has suffered and by an understandable tendency to blame persons other than herself. Her evidence generally exhibited some confusion and contained many inconsistencies and contradictions. She gave untruthful and absurd evidence on the matter of her and Upton's drawings from the business which threw some doubt on her evidence on other matters. Except in one relatively unimportant particular her evidence about the meeting was not supported by Upton. She was on occasions driven to say that she could not explain inconsistencies between her evidence and other evidence for instance that of the accountant Bain but was never prepared to concede that she might have been mistaken.
Wilkins was not an entirely satisfactory witness either but I think he did his best to tell what he remembered of a transaction which took place four and a half to five years before the tria1. There were some inconsistencies but not nearly so many as in the evidence of Mrs Upton. He had great difficulty remembering things said and done when he could get no assistance from his appointment diary or from correspondence. On occasions he was driven back to saying that he could not remember saying some particular thing but he was sure he would not have done so because his experience would not permit him to or because it would be improper or because he was too experienced to say such a thing. I found these explanations convincing. Neither Wilkins nor Hodd Wilkins are now employed by TVW. Hodd Wilkins has been taken over by another company and Wilkins has just commenced a two year working contract in London. Wilkins displayed no ill- will towards the Uptons, rather the reverse and he blamed TVW's intransigence in the matter of rent reviews in part for the Uptons' financial difficulties and he also criticised the decision to lock them out.
Mrs Upton's evidence gained some apparent support from the entries on two pages at the back of her 1979 diary (exhibit O) with which I now dea1. Mrs Upton said that she was an inveterate note-taker and made notes on the foot of letters she received and in other places and in particular made notes of important things which occurred with respect to her dealings with TVW about Cinema City on the two pages of exhibit O. The first of these pages having a printed heading "notes" has the figures "79, 1980" written in the top left corner. The entries on this and the succeeding page all refer to things said to have happened in 1980 and all except one bear dates either partly in words and figures or in figures. Mrs Upton said that she made the notes on or shortly after the date of the occurrence recorded. One entry is out of date order and one has its final words squeezed between the earlier words in the first line of the next entry suggesting that these words were an addition to the earlier entry. Mrs Upton denied this but was unable to explain why the words were squeezed in. She was also unable to explain why the entry bearing date 6/6/82 followed one bearing date 14th July 1982. The vital entry so far as the site meeting is concerned has some indecipherable figures and marks at the beginning which have been crossed out and continues "Thurs morning '80 had meeting on site with J. Sweeney and J. Wilkins. 5,000 a day through complex. Mall to be extended to Pier Street & we'd be in centre of new shopping heart of Perth. Also suggests another shop for material (will consider), 10,000 per week, 7 plus 3???". The words from "also suggests" are quite plainly written with a pen other than that used for the earlier words. Mrs Upton gave no convincing explanation for this apparent change of pens which she conceded. If this entry were made on the day of or shortly after the site meeting I should have expected Mrs Upton to insert the date as she did with every other entry on the two pages. I also note that many important occurrences in the transaction are not recorded and that the representation about a capital asset worth $200,000 is not recorded neither is that concerning the Sugar House. The absence of a date leads me to have serious doubts about the contemporaneity of the note. The other defects to which I have referred lead me to lack confidence in all the entries on the two pages. It is argued that if Mrs Upton manufactured these entries in exhibit O in order to strengthen her case she could have done so a good deal more effectively and this is no doubt so, but nevertheless I find it difficult to accept the notes as they stand.
A further factor which leads me to lack confidence in the truth of Mrs Upton's present complaints is that until these proceedings were commenced, the applicants made no allegation of representations made, now said to be false. She made an oral complaint to one Harverson, the centre manager, in January 1981, two months after the opening of the centre. Her evidence of her conversation with Haverson was "I think because of the shoppers not coming through - the generation of traffic was not coming through there I said that I felt the rents were too high". There is apparently no mention made to Harverson of the representations made, simply a complaint about lack of traffic. One would have expected her to add, if it were the truth, that it was represented to her that 5,000 people per day would pass through the centre. Mrs Upton never reproached Wilkins orally with having made the representations, now said to be untrue. She explained this by saying that she did not need to remind Wilkins of his representations because he knew perfectly well what he had said. In her letters to TVW and to Hodd Wilkins she never mentioned the representations.
At some time, probably not long after the Uptons were locked out of the shops, Mrs Upton drafted a letter to Mr Holmes-a-Court, the individual businessman and entrepreneur said to be in substantial control of TVW. The letter was never sent but Mrs Upton said that she would like to have sent it and that it was setting out all her side of the story. The draft letter occupied five octavo sized pages. In this letter Mrs Upton made no complaint about the representations said to have been made except to say "we were promised that it was to be a marvellous centre, the new heart of the city of Perth in fact". She made no reference to the extension of the mall, to the representations now complained of and the promise complained of is different to the one now said to have been made. Had the representations been made as she said I should have expected her to take the opportunity of complaining of them to Holmes-a-Court. The main burden of her letter concerned her inability to get any adjustment to her rents for the shops.
If the representation as to takings of $10,000 from both shops were made then the applicants could have been expected to take $520,000 or a little less each year to allow for holidays. When Mrs Upton had a discussion with Letts of Hodd Wilkins in November 1981 when she was first in arrears with rent her takings were down some $300,000 on what had been, as she said, represented. If this were true I should have expected her to say to Letts that the takings were so far down on what she had been promised but she did not do so, indeed did not mention the promise as to takings at all to him. If the alleged representations were made to Mrs Upton I find it very difficult to accept that she never complained of the breach of these representations, either orally or in letters to anyone, with the possible exception of a letter which she said she wrote to Garner of TVW, which letter has never been found, nor has a copy ever been found and I have great doubt as to whether it was ever sent.
Influenced by all these matters and my impression of Mrs Upton and Wilkins as witnesses I prefer generally the evidence of Wilkins to that of Mrs Upton where they conflict.
I come now to the alleged representations in order -
(a) Five thousand people each day through the complex. Mrs Upton says that this was said to her by Wilkins up near the Barrack Street end of the arcade. Upton says that when the party were near the"Red Rooster" premises in the Hay Street/Murray Street portion of the arcade, he vaguely overheard the figure "5,000" mentioned by Wilkins. He was unable to say in what connection the figure was used. Either this figure was mentioned twice by Wilkins, if at all, or Upton or Mrs Upton are at best mistaken. In evidence in chief Wilkins denied positively that he said that there would be at least 5,000 people passing through the complex each day. In cross-examination he first denied having said that 5,000 people would pass through the complex each day and then said that he did not recall saying that a large number would be passing through. He admitted saying that the cinemas would be a significant drawcard for the complex and that from time to time he may have said that a large number of people would be going through the complex. I think that Wilkins did say to Mrs Upton that a large number of people would pass through the complex and may have said that there would be 5,000. It is my opinion that the phrase "through the complex" contemplates persons who enter the complex through one entrance and emerge from it by another. It clearly includes, for instance, persons who enter from Hay Street, pass down the head of the "T" and emerge into Murray Street without necessarily entering the Barrack Street finger or passing shop 7. If Wilkins did say that at least 5,000 people per day would pass through the complex then I am satisfied that that is what he honestly thought and moreover the evidence of population surveys which was admitted satisfies me that the representation if made was substantially true and therefore was neither misleading nor deceptive.
(b) By leasing premises the applicants would be acquiring a valuable asset worth $200,000.
Mrs Upton says that during her discussion with Wilkins about the possibility of leasing portion of shop 13 in addition to shop 7 in order that she might sell fabrics there, Wilkins said that if she leased the two shops 7 and portion of 13, both of which had a frontage into Barrack Street, she would be acquiring a valuable asset worth $200,000. Wilkins said in evidence in chief that he did not recall ever saying that at all, but admitted that he believed that anyone leasing both shops would be acquiring an asset. In cross-examination he said that he did not recall saying anything about acquiring an asset, but that he believed that any tenant would acquire a valuable asset. It is worth noting that the allegation that the valuable asset which would be acquired by leasing the premises would be worth $200,000 was only added to the pleadings on the first day of the tria1. Not recalling is a thing different from denying, but nevertheless I am unable to be satisfied that Wilkins made this representation alleged.
(c) The extension of the mall.
At relevant times Wilkins believed and indeed he still does, that there was a strong possibility that the Hay Street mall would at some time be extended eastwards as far as Cathedral Avenue. He gained this belief from common talk and gossip among city businessmen and more important, from a discussion with an official in the planning department of the City of Perth administration. Although an extension to Pier Street would in his view be more sensible and generally more useful he never believed that this greater extension was being planned or considered because of what he had been told by the planning officia1. He admits that he said to all prospective tenants that there was a strong possibility that the mall would be extended to Cathedral Avenue and may have said that this extension would improve the position of the traders in the complex. He says that he expects that he would have said this to Mrs Upton early in the negotiations. He does not however remember saying anything about it at the site meeting and that he would remember if he did. He says that he did not say that the complex would be the shopping heart of Perth but says that he probably did say that the complex was intended to be the "new heart of Perth" which was a slogan devised by advertising agents for the opening of the complex. He says that he did say that the complex would be in a class of its own and quite unique but not that it would be in a class of its own as a business opportunity. Wilkins believed and still believes that the complex was and is in a class of its own and quite unique and asserts that this is the fact. He says, and this is not contradicted, that there is no other complex in Perth containing four cinemas and twenty-five shops and that it is unique because of its size and its design. Sweeney went even further and said that there was no complex like it in the southern hemisphere if not the world. I note that the allegation that the mall would be extended was first added to the proceedings on the first day of the tria1.
I prefer Wilkins' evidence to that of Mrs Upton and find that at some time Wilkins said that there was a strong possibility that the mall would be extended to Cathedral Avenue which he honestly believed and which was the fact. I also find that he said that the complex was intended to be the "new heart of Perth" and that the complex would be in a class of its own and quite unique. The phrase, "the new heart of Perth", was used in the advertising campaign and by Wilkins with no reference to the mall being extended. I find that none of these representations was misleading or deceptive. I think it possible that Mrs Upton has reconstructed and rationalised what she heard into what she wanted to hear in order to explain her having embarked on a venture which turned out to be disastrous for her.
(d) Wilkins denies that he ever said anything about the takings Mrs Upton could expect from the two shops. In Wilkins evidence in chief, the following passage occurs-
"Did you suggest to them that they could take $3000 from shop 13?---No.
Or $7000 from shop 7?---No.
Or $10,000 per week?---No.
Why are you able to say that with a degree of certainty?---Because I never ever discuss takings with tenants - ever - because they vary so much from tenant to tenant. Even for exactly the same usages two different lessees could take two different sorts of takings. It is just - I am too experienced to discuss those sorts of things, quite frankly.
Did you suggest to them that they could not go wrong by opening a business in the complex?---No.
Did you use any words to that? Similar words?---No."
In cross-examination he emphatically denied having said anything about prospective takings of $10,000 a week "because it would be improper and I did not say it". I found Wilkins convincing when he gave evidence on this topic. In addition I consider that it would be absurd for Wilkins to give any estimate of the takings of two shops in a new and untried shopping complex in a trade about which he knew little or nothing. I consider it most unlikely that Wilkins ever made the representation as to takings alleged and I am most certainly not satisfied that he did so.
(e) Wilkins denied having said that shops 7 and 13 were in a better position than the Sugar House, an establishment in the Hay Street mall, also dealing in bridal wear and accessories but not in fabrics. He said that in his opinion the Sugar House was, and is, in a superior position to shops 7 and 13. He denied that he knew what the takings of the Sugar House were and I believe him. This allegation also was not in the original statement of claim nor in the amended statement of claim of 23rd December 1984 but was added by amendment on the first day of tria1. I am not satisfied that this representation was made at the site meeting as alleged.
The applicants' claim under the Trade Practices Act first claimed damages under s.82 with respect to the representations said to have been made and said to have amounted to misleading and deceptive conduct. It was later appreciated because of the defence delivered that these proceedings were commenced outside the limitation period prescribed by s.82(2) of the Trade Practices Act. The claim was then amended so as to be brought under s.87(1A) of the Act which, in effect, gives the court a discretion in the present case to declare the leases for the shops to be void and to direct the respondents to pay damages without any limitation period applying. I heard argument as to whether or not I should exercise my discretion to make that declaration and that order. Since I find that the respondents were not guilty of any misleading or deceptive conduct I find it unnecessary to decide whether or not I should exercise my discretion and I do not decide it. Having concluded that there was no misleading or deceptive conduct engaged in by the respondents or either of them I dismiss the claim brought under the Trade Practices Act.
The applicants also make a claim in conversion. The business carried on by them in Cinema City was not financially successfu1. The reasons for this failure are not now relevant. Suffice it to say that after an initial period of relatively good trading the business went gradually downhill. Rent was paid with respect to shop 7 until January 1983 and with respect to shop 13 until March 1983. During 1983 negotiations as to the mounting arrears of rent occurred and the applicants made a number of promises and proposals which were not kept. Finally, on 9th December 1983, the leases were terminated by TVW and the applicants were locked out of the two shops. There were within the shops at the time of the lockout, stock and fittings and other chattels which were the property of the Uptons.
Paragraph 17 of the statement of claim is as follows -
"Despite repeated requests by the firstnamed applicant since 10th December 1983 the respondents have refused or failed to deliver to the applicants and thereby converted to their own use the fixtures and fittings, stock and other chattels remaining in Shops 7 and 13 the property of the applicants and of a company from whom certain items were in the possession of the applicants pursuant to a lease agreement."
Immediately following these words follow particulars of fittings which are listed with their alleged values and stock which is listed with the alleged values of each item. The claim with respect to the fittings was abandoned at trial but the claim with respect to the stock remains. The final paragraph of the statement of claim with the notional amendments consequent upon the deletion of the claim with respect to fittings, states a claim by the applicant "at common law for the return of the applicants stock in trade or its moneys worth of $35,691-01, or alternatively, $16,433-76." The first figure is said in the particulars to be the retail value of the stock and the second figure is said to be the cost of it. In its defence TVW (inter alia) denies converting the stock to its own use and otherwise does not admit the allegations in para. 17 of the statement of claim. The defence pleads later, in para. 19 of it, that if the applicants are entitled to any relief TVW claims to be entitled to set off against any such relief, the sums of $35,302-51 and $13,252-56 said to be due under the leases and in the alternative, the sum of $17,787-58 due by the applicants to TVW under judgments of the District Court of Western Australia.
Early in 1984 a Mr Cochran who gave evidence and whom I found to be an impressive witness moved, with an assistant, the applicants' fabrics and the fixtures and fittings from shop 13 to shop 7. Some weeks later he moved all the applicants' fixtures and fittings and stock and other contents from shop 7 to shop 7A. This of course included the goods previously in shop 13. I am satisfied that these moves were carefully and expertly done and that they entailed no losses to the applicants' property. From time to time Mrs Upton and her then solicitor, Edwards, asked for the return of the stock through TVW's solicitors, but its return was refused unless Mrs Upton paid something in reduction of the amount owing to TVW on account of arrears of rent. These requests were mostly made in the context of negotiations to settle TVW's claim against the applicants. A number of propositions were put which involved Mrs Upton getting possession of the stock and selling it in order to reduce or compromise the indebtedness to TVW. Mrs Upton made one other request to Lyons, a representative of Richard Ellis, the agent who had taken over from Hodd Wilkins. This request was probably made in February 1984. Mrs Upton asked Lyons if she could have her stock because "what am I going to do without my goods? How do I explain that loss to taxation?". Lyons said that he would ask Garner of TVW about the matter. When Mrs Upton telephoned him later Lyons said she could not have the stock. It is true that no formal written demand was made by Mrs Upton or her solicitor for the return of the stock but without any difficulty I am satisfied that oral demands were made. Mrs Upton was permitted to recover some items of stock, both from the items on layby and generally. The number of stock items thus recovered and their value is uncertain, as is the number and value of stock items still remaining in the custody of TVW. However this may be, the evidence satisfies me and indeed it is admitted, that there is some of the stock from both shops 7 and 13 under the control of TVW and that TVW has declined or failed to deliver this stock to the Uptons upon request to do so. It is not argued by TVW that the stock was retained as a bailment against the unpaid rent, indeed it asserts no right to retain the stock. In the absence of any asserted right the retention against the Uptons was wrongful and demonstrated an intention to keep the stock in defiance of the Uptons. Notwithstanding that TVW has not otherwise demonstrated an intention to keep and use the stock as its own, for instance by selling some of it, or by otherwise dealing with it, the keeping of the stock with the intention to keep it in defiance of the Uptons, amounts in my view, to conversion by detention, (see Clayton v. LeRoy (1911) 2 KB 1031 at 1052).
In the first instance the Uptons are entitled to damages with respect to this conversion. The evidence as to the value of the stock detained is entirely unsatisfactory. Mrs Upton says that when giving instructions for the claim she used exhibit T, a rough list of stock taken by some of her staff on 27 August 1983, as a basis to work from "I had in my mind what was in that shop roughly and going by the stocktake here that the girls had written down I sort of assessed what there was there". In the original statement of claim delivered on 6 November 1984 the stock was pleaded to be worth $16,763-97. In the amended statement of claim delivered towards the end of November 1984 this value was the same. The statement of claim was further amended at the beginning of the trial and the stock was then pleaded to have the value of $16,433-76 at cost and $35,199-14 at retail value.
In a letter written on 27 February 1984 by Edwards the Uptons' then solicitor to TVW's solicitors, the stock-in-trade at the Cinema City shop was said to be "$8,000 ($10,000)". There was no explanation as to what the second figure in brackets might mean. It may be that it is intended to indicate that the stock might be expected to realise $10,000 on sale, but I am unable to find this in the absence of evidence. Suffice it to say that this letter indicates a value of no more than $10,000 at the most, Edwards impressed me as a careful, conscientious solicitor and it was not suggested that he is anything else. He said that he wrote the letter on instructions as one would expect and that he obtained the figures from Mrs Upton. Mrs Upton said in evidence that Edwards must have made a mistake but having seen and heard him I consider that this is most unlikely. I do not know when Mrs Upton gave instructions to her present solicitors but it must have been some months at least after instructions were given for this letter and the letter was written some two and a half months after Mrs Upton was locked out of the shops. It seems to me likely that Mrs Upton would have been in a far better position to assess the value of her stock when the letter was written than some months later. The unsatisfactory state of the evidence as to the value of the stock is Mrs Upton's responsibility and she, bearing the onus of establishing her loss, must also bear the responsibility for a finding as to value lower than she might have hoped for. I assess the value of the stock detained by TVW at $8,000. No claim for interest is pleaded nor was it argued that I should award any.
On the claim with respect to the stock, I order that TVW return the stock to Mrs Upton, or pay to her the sum of $8,000. As I have said, in its defence, TVW claims a set off of $48,555-07 and in the alternative, $17,787-58. No pleading was filed by the applicants to dispute this claim nor was any argument presented to me concerning it and since the sums claimed to be set off considerably exceed the amount awarded, in the result if TVW chooses to retain the stock, it may set the sums it claims off against the amount awarded and pay nothing to the applicants.
The applicants have been largely unsuccessful in their application and have succeeded only on one small issue which occupied very little time at the tria1. This minor success should I think nevertheless be reflected in the order I make as to costs. I order that the applicants pay 95% of the first respondent's costs to be taxed and the whole of the second respondent's costs to be taxed.
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