Stocks v Retirement Benefits Fund Board - [2007] TASSC 8

[2007] TASSC 8

CITATION: Stocks v Retirement Benefits Fund Board [2007] TASSC 8

PARTIES: STOCKS, Terence Ian

STOCKS, Gail Maree
v
RETIREMENT BENEFITS FUND BOARD (The)
EDWARDS, Andrew Harold
ELLWOOD, David George
FITZGERALD, Douglas Parker

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1051/1992
DELIVERED ON:  5 March 2007
DELIVERED AT:  Hobart
HEARING DATE:  21-24, 27-29 November, 1 December 2006
JUDGMENT OF:  Underwood CJ

CATCHWORDS:

Torts – Negligence – Essentials of action for negligence – Where economic or financial loss – Careless advice, statements and non-disclosure – Particular persons and situations – Other cases – Real estate agents – Leasing agents for shopping centre – Whether representations were made.

Aust Dig Torts [55]

Damages - Measure and remoteness of damages in actions for tort - Remoteness and causation - Foreseeability of damage – Other cases – Interest by way of opportunity cost - Chose in action vested in trustee in bankruptcy – Whether entitlement to damages by way of interest ceased on bankruptcy – Trustee assigned chose in action back to plaintiffs - Whether entitlement to damages by way of interest thereupon resumed.

Bankruptcy Act 1966 (Cth), ss58(1) and (3), 116 and 153(1).
Hungerfords v Walker (1988) 171 CLR 125, applied.
Aust Dig Damages [21]

Limitation of Actions – Contracts, torts and personal actions – The period of limitation – When time begins to run – Particular causes of action – Negligence – Economic loss – When actual loss suffered.

Limitation Act 1974 (Tas), s4.

Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388, applied.
Scarcella v Lettice (2000) 51 NSWLR 302; Forster v Outred & Co [1982] 1 WLR 86; D W Moore & Co Ltd v Ferrier [1988] 1 WLR 267, distinguished.
Aust Dig Limitation of Actions [23]

REPRESENTATION:

Counsel:
             Plaintiffs:  G L Sealy, R A Browne
             Defendant:  S P Estcourt QC, R G Brewer
             Third Parties:  S Tatarka
Solicitors:
             Plaintiffs:  FitzGerald & Browne
             Defendant:  Hand Ogilvie & Breheny
             Third Parties:  Murdoch Clarke

Judgment Number: [2007] TASSC 8
Number of paragraphs: 134

Serial No 8/2007
File No 1051/1992

TERENCE IAN STOCKS and GAIL MAREE STOCKS v
THE RETIREMENT BENEFITS FUND BOARD,
ANDREW HAROLD EDWARDS, DAVID GEORGE ELLWOOD and
DOUGLAS PARKER FITZGERALD

REASONS FOR JUDGMENT UNDERWOOD CJ

5 March 2007

The plaintiffs

In August 1985, Mr and Mrs Stocks, both aged 27, lived in a Hobart suburb with their then only child born two years earlier. Mrs Stocks worked as a bookkeeper for a firm of stationers in Bathurst Street. Mr Stocks, who had been a salesman for most of his working life, was employed in Hobart as the state manager for Schwarzkopf, Australia. The business, which then employed seven persons, principally was selling hair and related products to hairdressers, pharmacies and retail stores. Mr Stocks was a successful state manager for his company. In about August 1985 the plaintiffs decided that they would go into business on their own account and took a lease of a shop in Centrepoint in the city of Hobart to sell hair products and discount cosmetics. Mr Stocks and some employees worked in the shop. Mrs Stocks remained in her employment until she resigned in December that year due to the imminent birth of her second child. Initially, the Centrepoint shop was a financial success.

About the same time as the Centrepoint store opened, the plaintiffs discovered that there was a proposal to build a shopping centre, later known as the Northgate Shopping Centre ("Northgate"), on Main Road, Glenorchy. The defendant was the Northgate developer and one of the managing agents was Edwards Windsor.

In about late 1985, Mr Stocks made contact with the first third party, Mr Andrew Edwards, and/or the second third party, Mr David Ellwood, and enquired about leasing a shop at Northgate to carry on the same business as he was carrying on at Centrepoint. This was the first event in a series of events that led to the opening and failure of a cosmetics store at Northgate, the failure of the Centrepoint store, the collapse of the plaintiffs' finances, bankruptcy, and a long period of anxiety and stress for the plaintiffs.

The proceedings

The plaintiffs' case against the defendant is that by its agents, it made negligent misrepresentations that led to the plaintiffs opening a store at Northgate and its subsequent failure. During the course of the proceedings it was admitted that, in conjunction with another firm, the defendant appointed Edwards Windsor as its agent for the purpose of leasing the shops at Northgate. It was also admitted that the first third party, Mr Edwards, was a principal of that firm and the second third party, Mr Ellwood, an employee. Another admitted fact was that the third party, Mr Douglas Fitzgerald, was employed by Edwards Windsor as the manager of the shopping centre. However, his employment did not commence until about July 1986, four months before Northgate opened.

Proceedings were commenced by the issue of a writ on 7 September 1992. The amended statement of claim pleads that four representations were made by the third parties as agent for the defendant, viz:

"(a)That Coles Super K and Venture had been confirmed as two of the 3 major retailers for the Northgate Shopping Centre.
(b)That approximately 50,000 people would pass through the Northgate Shopping Centre per week.
(c)That a Tattslotto agency would be situated in close proximity to the shop.
(d)That nearly all the shops at the Northgate Shopping Centre had been let and that only three were then available for lease."

The allegation is that the misrepresentations were all made orally "on diverse dates between early December 1985 and October 1986" and were made in order to induce the plaintiffs to enter into occupation of a shop at Northgate. The statement of claim pleads that the plaintiffs were induced by the representations to spend money fitting out a shop at Northgate and starting up a business there.

Paragraph 5 alleges that each representation was untrue in that:

"(a)No Coles Super K store or Venture store had been confirmed as tenants in the Northgate Shopping Centre.
(b)The defendant had no reasonable basis for believing and did not in fact believe that approximately 50,000 people would pass through the Northgate Shopping Centre per week and the pedestrian traffic flow through the Northgate Shopping Centre was considerably less than 50,000 people per week.
(c)There was never any Tattslotto agency in close proximity to the shop.
(d)Over half the shops in the Northgate Shopping Centre had not been leased."

Paragraph 6 alleges that the false representations were made negligently.

In the alternative, the plaintiffs claim that after the plaintiffs' shop at Northgate failed, the defendant obtained the benefit of the money that they had expended fitting it out, and a claim is made for remuneration or compensation for that benefit, together with compound interest.

The defendant and the third parties deny that the pleaded misrepresentations were made. Alternatively, if they were made, the defendant and the third parties deny that the plaintiffs were induced by them to enter into occupation of a shop at Northgate. Further, and alternatively, the defendant and the third parties contend that if the representations were made and did induce the plaintiffs to enter into occupation of a shop, they did not cause the plaintiffs to suffer any loss.

The defendant joins issue with the plaintiffs' alternative claim of indebitatus assumpsit.

On the third party proceedings it was agreed that if it was found that one or more of the pleaded representations were made:

·as to two of them, the defendant did not authorise the third parties to make them; and
·as to the other two, authorisation to make them did not arise until after certain specified dates.

In view of those agreed facts and the admission of agency, there was little, if any, dispute on the third party proceedings. If one or more of the negligent misstatements were made and caused the plaintiffs to suffer loss, provided in the case of two of them, they were made before the specified dates, the defendant is entitled to be indemnified with respect to any judgment sum it is ordered to pay the plaintiffs. There is one exception to this. At the end of the evidence it was clear that no relevant misrepresentation had been made by Mr Douglas Fitzgerald, and accordingly, whatever the outcome of the case, he was entitled to a judgment against the defendant on the third party proceedings. No counsel contended to the contrary.

Finally, the defendant pleaded and argued that even if the claim for damages for negligent misrepresentation is established, it should be dismissed because the plaintiffs first suffered damage more than six years prior to the issue of the writ. See the Limitation Act 1974, s4.

Some general propositions and history

With the best will in the world, it is inevitable that evidence of what one person said to another 20 years earlier is likely to be unreliable if its only source is the witness's memory. The degree of unreliability of such evidence increases if the recall is accompanied by long-standing, albeit unconscious, bias. In this case, three large volumes of documents were discovered and a high percentage of them were tendered in evidence. Generally speaking, my findings of fact of what was said depend on inferences that can be drawn from the written evidence.

Abbott Holdings Limited was a subsidiary of the building company Hansen & Yuncken. Part of the companys' business was the acquisition of properties and development of shopping centres. It was decided that such a centre, built at Main Road Glenorchy, could be feasible and investigations began. The evidence is not clear as to when these investigations started. At some stage, Abbott Holdings separated from Hansen & Yuncken, but its involvement in the possible development of a shopping centre to be built by Hansen & Yuncken, at Main Road, Glenorchy continued. The defendant entered into a development agreement with Abbott Holdings Limited and became the owner of the development at Glenorchy which was to become Northgate. The earliest piece of documentary evidence is a letter dated 24 October 1984 from Venture Stores Pty Ltd to Abbott Holdings Limited in which the former expressed interest in being a major tenant at a proposed Glenorchy Shopping Centre.

In 1985 Abbott Holdings Limited commissioned a feasibility study from Plant Location International ("PLI"). This study referred to an earlier study done by the same company in May 1984 when the proposed site was a little smaller than it eventually turned out to be. Relevant to the issue of whether one of the alleged representations was made, PLI's 1985 study refers to its May 1984 development proposal in these terms:

"The development proposed at that time comprised:
·a 'superstore' with a gross leasable area of some 9,290m² (100,000 sq ft) combining a supermarket and a discount department store under the one roof with common entrance and exit/checkout facilities;
·supporting small tenancies with a total gross leasable area of some 2,787m² (30,000 sq ft); and
·associated off-street parking.

Interest in tenanting the 'superstore' had been shown by G J Coles & Coy Ltd."

The 1985 study then refers to the project undergoing some revisions and sets out two reasons for the revisions to the earlier proposal, the first of which was:
"… Coles have advised that they are no longer interested in a 'superstore' in this location - the reason given being the potentially deleterious affect of such a store on their existing operations at New Town (Coles New World super-market/K Mart), some 3.9 km to the south east. Coles remain interested in leasing space in the project however - for the purposes of a supermarket (of some 4,698m²/50,570 sq ft, split 60% food and 40% variety).
Interest in the project's major non-food component has been shown by Venture Stores Pty Ltd (for 3,330m ²/35,845 sq ft, split 80% software and 20% hardware)."

On 1 April 1985 the Glenorchy Council gave Northgate a development permit for:

·a supermarket of 4,698 m²;
·a junior department store of 3,330 m²;
·small tenancies of 5,322.8 m^2;and
·parking for 900 cars.

Detailed tables attached to the 1985 study show a proposal for Coles to take a lease of an area just short of 5,000 square metres and Venture Stores to be the sub-major tenant, taking 3,330 m², a total of 8,330 m², leaving just over 5,000 m² for the specialty tenants.

A plan drawn later, but which I find reflects the design of Northgate in 1985, shows that the total area is to comprise three areas around a central open space. Along about two thirds of the northern boundary is an area of almost 5000 m²marked supermarket. Adjoining it and occupying the balance of the northern boundary is an area of about 3,000 m²marked "major 2", and across a corridor from the south western boundary of "major 2" is an area less than half the size, marked "major 3." Broadly speaking, around the rest of the central open space provision was made for specialty shops, roughly grouped into food outlets, fashion, gifts and the like and general, such as newsagent, pharmacy and so on.

Some time prior to 11 June 1985 there were discussions between Abbot Holdings Limited and Venture Stores which culminated in a letter dated 11 June from the latter to the former advising that Venture had no interest in stage 1 of the Glenorchy shopping centre, but may be interested if there were any future expansion.

Nine days later there was a special meeting of the chairman and members of the defendant at which the withdrawal of Venture Stores was noted. The outcome of the meeting was an interim agreement by the defendant to be involved in the Northgate project with Abbott Holdings Limited as the development managers, Hansen and Yuncken as the builder and Baillieu Knight Frank (Victoria) and Andrew Edwards and Robert Windsor Real Estate as conjunctional leasing and managing agents. This decision was subject to a long list of conditions, one of which was that G J Coles & Coy Ltd make an unconditional commitment to enter into a lease agreement based on a letter dated 12 April 1985. Generally speaking, the task of approaching and securing major tenants and national operators to Northgate was the job of Baillieu Knight Frank (Victoria) and the task of attracting the local specialty tenants largely fell to Edwards Windsor.

The documentation shows that at about this time there was a possibility of two sub-major tenants, Ambroses and Loughrans. On 13 August 1985 the first of many combined leasing/centre management meetings were held. Present were Mr Allingham, the defendant's Senior Investments officer, three representatives from Abbott Holdings Limited and Mr Edwards. The meeting was held in Mr Edwards' office. The minutes of the meeting note that the defendant had received an offer to lease from G J Coles, that a letter of offer had been received from Ambroses and that Mr White from Abbott Holdings would approach Loughrans. There seemed to be some doubt about Loughrans as the minutes also note that Mr White and Mr Edwards would look for an alternative tenant should Loughrans not proceed.

The acquisition of the necessary sites and the building progressed. The proposal was advertised by a signboard erected on the building site. This board advertised Edwards Windsor as a leasing agent and was seen by Mr Stocks. The documentary evidence includes a letter from Mr Stocks dated 10 October 1985 and addressed to Mr Edwards. It refers to a conversation that the two of them had recently "concerning the lease of a shop in the Northgate Shopping Complex for the use of discount cosmetics". The last sentence of that letter indicates that the conversation was over the telephone, and that as at that date, the two of them had not met face to face. The letter advised that Mr Stocks was operating a successful cosmetics house at Centrepoint and wished to expand to the Northgate Shopping Centre, requiring floor space of about 60 or 70 square metres. The letter also expressed interest in the lease of an ice cream parlour.

The next document is a reply from Mr Edwards dated 15 October, advising that he did not have the final leasing documents at that stage, but expected to have them in the next three weeks, and would forward them to Mr Stocks when they were printed.

By letter dated 19 November 1985 Loughrans advised that they were not going to lease any space at Northgate. By letter dated 17 December 1985 Mr Edwards wrote to over 150 prospective specialty shop tenants, including Mr Stocks. The letter invited the prospects to "formalize [their] application for tenancy" and enclosed a floor plan showing the designed tenancy mix, a tenancy information bulletin and a tenancy works booklet.

A consideration of the issue of whether the defendant's agents made the pleaded representations needs to bear in mind that all those involved in this case understood and accepted that for a shopping centre such as Northgate to be successful for the tenants and thus, of course, for the owner, certain things were of fundamental importance.

·There must be two, or perhaps three, major stores including a large supermarket with a "variety component".
·There must be a mix of tenancies, described by Mr Edwards as "somewhat of a science", and about 50 per cent of the specialty shops must be operated by those who operate similar businesses either interstate or intrastate.
·The specialty shops must be grouped into a food hall or section, a fashion hall, and a general area.

The principle on which the centre would operate was that the major tenants would occupy relatively large areas but pay a relatively low rental while the smaller, or specialty tenants, would occupy smaller areas and pay a relatively high rental. The major tenants attract the shoppers and in return, the specialty tenants subsidise the major tenants' rental. The "bottom" line was the attraction of a high volume of pedestrian traffic through all parts of the shopping centre.

The alleged representations

Mr Stocks' evidence was that he went to the offices of Edwards Windsor "around March, '86." He said that he was taken up to a boardroom where he spoke to Mr Ellwood. He said that a plan of Northgate was pinned on the wall and he discussed with Mr Ellwood his interest in leasing a shop at Northgate for his cosmetics business. He said that Mr Edwards joined them after a short while.

The documentation, in particular a memorandum from Mr Ellwood to Mr Edwards dated 29 January 1988, leads to a finding that there were several meetings between Mr Stocks and Mr Ellwood and/or Mr Edwards, leading up to Mr Stocks agreeing to take a lease at Northgate. Mr Ellwood said that he did not dispute that there were meetings between him and Mr Stocks, but he was unable to recall what was said at them.

Mr Stocks' evidence was that the pleaded representations were all made at the first meeting. The probabilities are that the first meeting took place in about January 1986 and not "about March" as Mr Stocks said in his evidence. This finding is made because a diary note made by Mr Edwards in January 1986 refers to shop 17 being too small for Mr Stocks. A letter from Mr Stocks to Mr Edwards dated 11 February 1986 refers to a floor area and a recent discussion between him and Mr Edwards. By early January 1986 Mr Stocks would have received the letter from Mr Edwards dated 17 December 1985, and the accompanying documents. Finally, the minutes of a meeting held on 10 March 1986 of the combined leasing/centre management committee, attended by Mr Allingham, Mr Edwards, Mr Ellwood and two representatives from Abbott Holdings, refer to adjusting the floor area of two shops so that the space Mr Stocks had requested could be made available.

By the time of this first meeting the documentation makes it clear that Coles had indicated that it was going to lease just under 5000m² and operate a supermarket with a section devoted to variety goods, but no lease had been drawn up. Venture stores had not been a prospective tenant for the preceding seven months. Loughrans, a furniture/white goods/carpet retailer that had expressed interest in being a sub-major tenant had advised in writing that it would not proceed. Ambroses, which I understand is a clothing retailer, was negotiating to enter into a lease as a sub-major tenant. With respect to the specialty shops, applications had been received for about half the total but no deposits had been paid and no leases drawn up.

At a meeting of the combined leasing/centre management committee on 20 January 1986, about the time of Mr Stocks' first meeting with Mr Edwards and Mr Ellwod, it was agreed that when a glossy brochure, due to be printed by 24 January 1986, was to hand, Venture and other earlier but unsuccessful prospects should be re-approached to see if they would reconsider their decisions not to take a lease in Northgate. Mr Edwards agreed to contact Venture. I find that about this time Abbott Holdings, the defendant and their agents were all becoming anxious about the failure to find a major sub-tenant to replace Venture and the number of specialty shops that were yet to be leased. The minutes of that meeting speak of "Advertising and marketing to be pushed in February/March", and note that when the brochure is printed it "will then be sent out." Mr Stocks had a copy of this brochure. His wife said that he brought it home with him from the meeting. He said that this was not right but he could not remember when he received it. The minutes of the meeting of 20 January 1986 make it likely that he either got it at the meeting or shortly thereafter. By the end of March 1986 it was clear that Loughrans would not reconsider and take a lease. Mr Bruce Eaton, trading under the name, Retravision was interested in leasing a part of the area that was set aside for Venture but not all of it.

Mr Stocks said that Mr Ellwood told him that Super K and Venture were two confirmed major tenants for Northgate. He said that Mr Ellwood also told him that all the shops were leased except two, and pointed out on the plan where those two shops were located. Mr Ellwood also said that there was a possibility of another shop, shop 31, being available for lease. Mr Ellwood pointed to where the word "Supermarket" was written on the plan and told Mr Stocks that it marked the proposed location of the Super K store and said that Venture was to go into the space next to it marked "major tenant 2". According to Mr Stocks' evidence, Mr Ellwood told him that he was looking at several major Tasmanian companies for the space marked "major tenant 3".

Mr Stocks said that the conversation lasted for about 20 minutes and included a discussion about Mr Stocks getting a larger area than the 45 square metres at his shop in Centrepoint.

Mr Stocks said that during this conversation he asked Mr Ellwood about the anticipated pedestrian traffic and was told that the Retirement Benefits Trust had a study done and there would be 50,000 people going through the centre each week. He said that Mr Edwards joined in this conversation, "confirming things up [sic] in relation to what was happening as far as the centre was going." Mr Stocks said that he was told that the Tattslotto agency was going to be moved from the newsagency to a kiosk in the centre.

Mr Stocks said that he left the meeting with a good impression of the prospects for a discount cosmetics shop, thinking that a combination of the major tenants, the fact that almost all the shops were let, the positioning of the Tattslotto agency and the pedestrian traffic survey together, all pointed to a volume of shoppers sufficiently high to make his proposed business successful. He went home and discussed it with his wife and they decided to enter into negotiations for a lease.

At this stage it is necessary to interpolate a word about Super K. It seemed to be common ground that in the 1980's Coles operated supermarkets and K-Marts. The former principally sold food and the latter sold a wide variety of goods other than food. Mr Stocks said that a Super K was "a mixed grocery and variety type operation – a mix between a supermarket and a K-Mart". He was asked if he had seen a Coles Super K store anywhere before and he gave this rather dubious answer, "No, only – before?" Counsel said "Yeah", so Mr Stocks went on, "Yeah, in Melbourne, yeah." His cross-examination on this point was no more convincing than his evidence-in-chief. It left me with the impression that he had not seen a Coles store called a Super K, but he had seen a Coles store that was a supermarket with a substantial variety section in it. He said that he had been around several Super K's in Victoria when he was working for Schwarzkopf, but when pressed if he had actually gone into a shop with Super K written on it he said, "Well, as far as I – yeah, that's for sure absolutely."

Mr Stocks said that Mr Ellwood did not explain to him what a Super K was, and in his evidence, Mr Ellwood said that he did not know what a Super K was and had never seen or heard of one. Mr Edwards' evidence was also to the effect that he did not then know the term "Super K".

The debate about whether Coles operated stores branded as Super K ended somewhat inconclusively with an agreed fact that "in the 1980s, the term 'Super K store' was in currency in literature prepared by or on behalf of Coles."

It is interesting to note that in its 1985 report, PLI use the word "Superstore" in reference to the Coles proposal. According to the report, the original concept was to build a huge store occupying almost one hectare, but in order to protect its supermarket over the road, the Coles project was reduced to just under half a hectare. According to PLI, the proposed Coles store at Northgate was to be split 60 per cent food and 40 per cent variety. In a promotion leaflet published by or on behalf of the defendant in October 1986, one month before Northgate opened, the Coles proposal was described in these terms:

"Twenty-one years ago, Coles New World opened its first Tasmanian store, at Glenorchy. Now, a dozen stores later, Coles is celebrating its 21st birthday by opening another Glenorchy store.
But this one, in the new Northgate Shopping Centre, will be very different. For a start, it will cover more than 4,800 square metres (about 51,000 square feet), making it the biggest in Tasmania.
It will also be the most modern. …
Northgate will also boast a Coles Variety Store, with garden, apparel, kitchenware and manchester departments all offering quality merchandise at highly competitive prices."

Mr Ellwood said that it was never his understanding that there would be two separate Coles stores at Northgate. He understood the proposal to be a large supermarket store with a few lanes of variety goods. In the promotional brochure that was published by or on behalf of the defendant on or about 24 January 1986, and to which I have referred, the Coles proposal is described as "a supermarket and variety store of approximately 5,000 m²in floor space which includes 2,000 m²of variety goods."

There was only limited evidence of the division of goods between food and variety on sale at the Coles store at Northgate when it opened in November 1986. Mr Shea, who operated a shoe shop at Northgate, said that when Coles opened it was a supermarket and that he understood that "it would have a lot of clothing." In cross-examination he agreed that it was probably the largest Coles supermarket in Tasmania but that its variety section was "very small." Mr Millington, who operated a clothing shop at Northgate, also said that there was a variety section in the supermarket but it was very small.

Mr Edwards said in his evidence-in-chief that he remembered meeting Mr Stocks but had no recollection of any conversations with him and was compelled to rely on the documents in order to give his evidence. With respect to the issue of Super K, Mr Edwards said that he had only ever known the Coles project as a Coles Supermarket Variety Store and had never heard of the expression Super K. He said that he had never told anyone that Venture was going into Northgate. He said that there was never a time when there were only two or three shops available to be let and he had never said to anybody that this was the position. With respect to the question of pedestrian traffic through the Centre, Mr Edwards said that this question came up at several meetings and accordingly, a survey was requested from PLI. It appears that no written result of this survey was obtained but a note made by Mr Ellwood of a conversation he had in July 1986 with a Mr Farquar from PLI indicates that it is probable that the request for it was not made until about that time. Mr Edwards said that he never estimated the volume of pedestrian traffic until the results of the PLI survey were to hand, but given the vital importance of this factor to prospective tenants, the probabilities are that he would have been asked what the likely volume of pedestrian traffic was on many occasions.

With respect to the Tattslotto agency moving into a kiosk in the centre of Northgate, Mr Edwards said in his evidence-in-chief that early to mid-1986 he approached Mr Forsythe, the newsagent who occupied a property on Main Road, with a view to him selling his lease to the developers, taking a shop in Northgate and relocating the Tattslotto agency to a kiosk. He said the newsagent would not make a commitment one way or the other for about six months. Ultimately, by about October 1986 the newsagent decided not to proceed with the kiosk idea and the Tattslotto agency remained in the newsagent's shop at one end of Northgate.

On 30 January 2006, 10 months before the trial commenced, Mr Edwards answered some interrogatories. Interrogatory 9 asked:

"(a) Did you engage in a discussion with the first plaintiff on or about March 1986 in Hobart in relation to the plaintiff seeking a tenancy at the proposed Northgate Shopping Centre.
(b) If 'yes' to (a) state the substance of what you said in the course of the discussion."

Mr Edwards pledged his oath to the following answer to that interrogatory:
"(a) Yes.
(b)The Firstnamed Defendant was very keen to discuss having a presence in the Centre. He was the first person who sat in my office to discuss the new Centre. He was keen to ensure that he was in the Centre and where his shop would be located. He did not ask any questions with respect to the pedestrian traffic. I showed him an initial concept plan which indicated the Tattslotto Agency and indicated that Coles had committed to the Centre and that negotiations were on foot with Venture. I did not have to sell the Centre to Mr Stocks as he clearly wanted to be in the Centre."

Mr Edwards was asked to give a further and better answer to that interrogatory and by affidavit on 29 May 2006 swore:

"After due search and enquiry my recollection is that I advised Mr Stocks that Coles had committed to the Centre and there were negotiations on foot with Venture and the developers. I showed Mr Stocks the proposed layout of the Centre at that time which indicated a possible location of a Tattslotto agency."

The only explanation Mr Edwards was able to give for the differences between the first answer and the further and better answer, and for the total contradiction between the answers to interrogatory 9 and his evidence of having no recall of what he said to Mr Stocks, was that the answers must have represented his memory at the time they were sworn, but they do not represent his memory at the time of giving evidence. With respect to the variations between the two answers, and the one to which he adhered, he said, "I would adhere because I've signed that declaration to say that I remembered at the time that the possible location of the Tattslotto agency (sic)." He was pressed about this and started to say, "I would have indicated …" but was stopped and re-asked what was his memory "as you sit here today". Mr Edwards answered, "Firstly that there was a possible location and indicated where it was with the Tattslotto agency. That I indicated that negotiations were going on between the developers and Venture and Coles were committed to the centre." Mr Edwards elaborated that by "committed" he understood that Coles had signed a lease.

After a luncheon adjournment Mr Edwards said that he had been thinking about the answers to interrogatories. He said that he did not resile from the answers he had given in cross-examination with respect to his affidavit in answer to interrogatories, but thought that when he signed them he had not read all the documents. He also said that perhaps the meeting with Mr Stocks had been in October 1985 and not March 1986. However, he agreed that if at any time between October 1985 and March 1986 he had said to Mr Stocks that negotiations were on foot between the developer and Venture, that would not have been true.

In cross-examination Mr Edwards admitted that throughout 1986 he was experiencing difficulties in finding tenants for Northgate and was under increasing pressure to do so, particularly from Mr White of Abbott Holdings Limited. Mr Edwards said that it was his understanding that the developers had always wanted a Tattslotto outlet to be located at a kiosk near the entrance to Coles. This location was close to the shop that the plaintiffs subsequently occupied. Mr Edwards agreed that there had not been any negotiations with anybody to lease a Tattslotto agency until about May 1986 when negotiations began with Mr Forsyth.

In his first answer to interrogatory 9, not as a result of any leading question, Mr Edwards said, "I showed him an initial concept plan which indicated the Tattslotto agency." The supplementary answer said, "I showed Mr Stocks the proposed layout of the centre at that time which indicated a possible location of a Tattslotto agency" [emphasis added]. The only material difference between these two answers is that the first asserts that the Tattslotto agency was shown on the plan and the second asserts that a possible Tattslotto agency was shown on the plan.

In his evidence, Mr Stocks said that he was told, in effect, that there was going to be a Tattslotto kiosk in the centre of Northgate. I accept Mr Stocks' evidence in this respect in preference to that given by Mr Edwards. Given the pressure under which Mr Edwards was then operating, he was unlikely to talk only in possibilities about future plans that would have an impact on the pedestrian flow past Mr Stocks' prospective shop. In his closing submissions, Mr Estcourt SC, senior counsel for the defendant, submitted that I should not accept Mr Stocks's evidence about the Tattslotto kiosk because "the very first mention of an offer by Mr Forsyth the newsagent to take a lease on Kisok 4 which provided a documentary information base sufficient to spawn any statements about a Tattslotto kiosk was not until the meeting of the combined leasing and management committee held on June 3." That submission overlooks Mr Edwards' evidence that it was his understanding that the developers had always wanted a Tattslotto outlet to be located at a kiosk near the entrance to Coles and minute 4.4 of the meeting of the combined leasing and management committee held on 24 February 1986, which states, "Kiosk locations to be nominated by BL&B/A&UDP and services to be provided nominated."

At about the time Mr Stocks went to see Mr Ellwood and Mr Edwards, Mr Edwards had been given the task of re-approaching Venture and I find it is extremely unlikely that Mr Edwards would have said to Mr Stocks that Venture had been thinking of going into the centre but had pulled out several months ago. Indeed, under cross-examination Mr Edwards said that as he recalled it, at the time he was speaking to Mr Stocks, there was some resurrection of hope with respect to Venture and agreed that he thought this was worth mentioning to Mr Stocks. He agreed with Mr Sealy, counsel for the plaintiffs, that the presence of Venture at Northgate as a major sub-tenant would make leasing a shop there much more attractive to Mr Stocks. Mr Estcourt submitted that it was unlikely that Mr Edwards or Mr Ellwod would have mentioned Venture as a tenant in about March 1986 as the documents make it clear that this company withdrew its interest in June 1985. This submission overlooks the documentary evidence that, about the time I find the critical meeting between Mr Stocks, Mr Ellwood and Mr Edwards took place, Mr Edwards was in the process of re-approaching Venture to see if he could persuade that company to change its mind.

Evidence of a tendency on the part of Mr Edwards to overstate the position appears in a shopper's guide, prepared under his auspices, for the opening of Northgate which shows a Tattslotto kiosk when none existed. In a publicity news sheet called Action Update, published under Mr Edwards' authority in September 1986, it is stated that Mr Edwards said, "Interest in the shopping centre has been strong. Already 77% of the specialty shop area has been committed." Both statements were false.

With respect to Mr Stocks' evidence that he was told by Mr Ellwood and/or Mr Edwards that Super K and Venture were two confirmed tenants in the centre, Mr Edwards' answer to interrogatory 9 was that he told Mr Stocks that Coles was "committed" to the centre. In cross-examination he said that by "committed" he meant legally committed and "assumed" that Coles had signed a lease. I find that at the time Mr Edwards told Mr Stocks that Coles was committed to the centre, no lease had been executed. The Coles lease was not executed until after the centre opened in November 1986 and I find that Mr Edwards knew that, because the fact that the Coles lease had not been executed was reported, often as the first item, in each of the minutes of the many meetings that he attended during the months between January and November 1986. I shall return to the issue of whether Mr Edwards' representation referred to a Super K or Coles.

Although Mr Edwards was the person nominated to re-approach Venture, he gave no evidence of what, if any, approaches in fact were made. A diary note in his hand for 20 January 1986 sets out the name and phone number of the contact at Venture, but there is no evidence of Venture showing any interest in going into Northgate after its letter of withdrawal dated 11 June 1985.

In 1988, the plaintiffs' then solicitors wrote to the defendant alleging that negligent misrepresentations had been made. In a memo written by Mr Edwards dated 2 February 1988 and addressed to Mr Allingham, Mr Edwards wrote:

"We always indicated there would be a Coles Supermarket as an anchor tenant and whilst we said it was originally designed for a Venture Store, it was clearly stated that Venture had not committed and we would possibly be subdividing the area."

This part of the memorandum is contrary to Mr Edwards' evidence, contrary to his answers to interrogatory 9, and improbable, for on his own admission it was unlikely that he would have told a prospective tenant that he had been unable to find a sub-major tenant.

That Mr Stocks was told something about Venture is corroborated by the fact that he wrote "Venture" in the space for major tenant 2 on a plan set out in the glossy brochure that came into his possession at some unknown point in time.

In cross-examination Mr Edwards maintained his denial that he told Mr Stocks that Venture was committed, but I give no credit to that denial given that his evidence-in-chief was that he had no recall of what was said to Mr Stocks and that that evidence was contradicted by the answers given in cross-examination and the answers in the interrogatories. In addition there are other matters that generally adversely affect Mr Edwards' credit.

One of those matters is Mr Edwards' evidence about his use of the word "committed". As mentioned, at first he adhered to the proposition that it meant that a lease had been executed, but it gradually emerged that the word was used by him very loosely, particularly in promotional literature such as Action Update, September 1986, to which I have referred, and in the periodic reports he made to the defendant. In the latter, tenants were often described as committed when no deposit had been paid and no lease had been signed. When Mr Sealy put to Mr Edwards that he used the word with "gay abandon", Mr Edwards said, "It's probably one way of looking at it." Finally, he agreed with the following proposition that I put to him:

"Mr Edwards, I'm getting the impression that committed didn't mean in your mind legally committed at all. It was a matter of judgement on your part; weighing up all the facts as you knew them, that this tenant was going to go into the centre. You may have had a deposit paid, you may have had a letter, or you may have got intelligence that led you to believe that they were definitely going to be a tenant there. Is that about right?"

Another matter concerns a newspaper advertisement published in the Examiner on 14 May 1986. It was published under the banner of Mr Edwards' firm by public relations consultants engaged by the defendant, called Abbott International Ltd, but the information in the advertisement was supplied by Mr Edwards. The advertisement referred to Northgate and described it as, "The most modern and best equipped shopping centre in Tasmania." The advertisement went on to say:

"Total net leasing floor space 13,927 square metres (3.3 acres)
Featuring – Coles Supermarket – variety store of 4,862 square metres (1.2 acres)
Two sub majors – 2,735 square metres (29,500 square feet)
Plus 53 specialties."

Mr Edwards accepted that the most desirable position so far as prospective tenants were concerned would be for Northgate to have a large Coles store that sold food and variety goods. As I have noted, consultants referred to it as a "super store." As I have also noted, in October 1986 publicity issued on behalf of the defendant referred to the Coles store as the biggest in Tasmania and as including a variety store selling "garden, apparel, kitchenware and Manchester departments". In the above advertisement the Coles operation is said to include a "variety store of 4,862 m²." In the light of those public announcements, it is high unlikely that Mr Edwards described the Coles store to Mr Stocks in terms of a supermarket with a few lanes of variety goods. Such a description is inconsistent with the public description, and not conducive to persuading Mr Stocks to enter into a lease. In the circumstances it is likely that Mr Edwards used the word "super" in connection with the Coles project, and stressed that the store would have a substantial variety component. Even if he did not use the exact expression "Super-K", I find that he used words to create the impression of a very large Coles supermarket with a very substantial variety component when speaking to Mr Stocks in January 1986.

With respect to the advertisement published on 14 May 1986, Mr Edwards agreed that the advertisement conveyed the idea that there were two sub-major tenants in place, even though that was not the case at the time the advertisement was published. Mr Edwards' explanation for this was that it was "the intent" that there would be two sub-major tenants. The advertisement went on to invite applications for occupiers and set out a list of types of occupiers such as electronics, kitchenware, pets and so on. Next to the types, "development and processing, specialist cards and newsagency" were the words "leased". Mr Edwards was asked why he allowed the advertisement to be placed advising that three shops had been leased when that was not the fact of the matter. He said, "I can't answer that question."

The following extract taken from Mr Edwards' cross-examination demonstrates that at the relevant times his desire to see Northgate fully tenanted led him to exaggeration and the making of false statements:

"… And so it was that in May of 1986 because, contrary to your evidence in chief that things were going, I think, slowly but steadily at this period, things were going rather badly and you needed to do something to generate a bit of interest this shopping centre, didn't you?… That's the reason for the ad, yes.
Yeah. Just the very thing those residential courses you did told you not to do, not to hype it up, and there you are hyping it up, aren't you? … On those - the strict terms that you've used, it would appear so.
On the strict terms that I've used. People who read that advertisement were entitled to believe, were they not, that at least three of the specialty shops in this centre had been leased? … Yes.
Your purpose in saying that was to make them believe that there was a high level of interest in the shopping centre and they needed to get moving if they wanted to get a tenancy? … That would be true, yes.
But that was not the fact, was it? … On analysis, no."

With reference to "hype" in the above extract, Mr Edwards volunteered during the course of his evidence-in-chief, that he had attended a course for agents who were in the business of representing shopping centre developers and there learned that it was most important that agents did not make false representations, exaggerate the state of affairs or, "hype things up." Notwithstanding this advice, Mr Edwards agreed with Mr Sealy that, "It would never do to give the impression, either to prospective tenants or to the public, that things were not going well."

With respect to Mr Stocks' claim that Mr Ellwood and/or Mr Edwards told him that all the shops were leased except two, Mr Edwards adhered to his denial that he said that to Mr Stocks. He agreed that that had never been the position prior to the opening of Northgate in November 1986.

With respect to the claim that Mr Ellwood and/or Mr Edwards told Mr Stocks that it was estimated that 50,000 people would go through Northgate each week, Mr Edwards said that he did not say that to Mr Stocks at any time between October 1985 and March 1986.

The evidence shows, and I find, that in July 1986, Mr Ellwood asked Mr Farquhar of PLI to advise them about the likely number of pedestrians who would go through Northgate each week. The oral advice was that a count of cars visiting a "similarly sized but differently compositioned centre, Burwood K Mart, of 12,561 square metres at Burwood Victoria, the likely number of people was estimated to be 59,000 per week."

I reject Mr Edwards' evidence that between October 1985 and March 1986 he did not give Mr Stocks any estimate of the number of people likely to be going through Northgate each week. For any prospective tenant the estimated volume of pedestrian traffic was a very significant matter. Mr Edwards and Mr Ellwood must have been asked many times about this and it is inconceivable that prior to July 1986, neither of them ventured an opinion about it. Further, it gradually emerged under Mr Edwards' cross-examination that prior to that date, Mr Edwards asked the owner of the nearby Glenorchy Central Shopping Centre, Mr Rudi Sypkes, what number of people went through his centre each week. Mr Sypkes told Mr Edwards it was 25,000 and Mr Edwards said that he thought that the number going through Northgate would be about double that. Mr Edwards' evidence that he did not give any estimate until after receipt of the Burwood information in July 1986 is completely contradicted by the memorandum dated 2 February 1988 from him to Mr Allingham in which he wrote:

"I had always anticipated that we would get slightly less than double Glenorchy Central which at that stage, according to Rudie Sypkes, was putting through about 25,000 people per week. I had always advised tenants that we anticipated approximately 40,000 per week and this volume has been born out in recent months since installation of door counters." [Emphasis added.]

I find that at the time Mr Stocks spoke to Mr Edwards, the latter was under very considerable pressure to find tenants for Northgate and that he was prepared to exaggerate the position in order to succeed. His evidence about what he said and did was contradictory and unreliable.

Mr Ellwood gave his evidence by videolink from Perth, Western Australia, where he is employed as a property manager. In his evidence-in-chief he said that he recalled meeting Mr Stocks but had no specific memory of any particular meeting. He said he was unaware of a concept called Super K and that his understanding of the Coles' intended operation at Northgate was that it was going to be a supermarket with a number of aisles for variety goods. I do not accept this evidence for it is contrary to the publications authorised by his employer and to which I have referred. Mr Ellwood said that his understanding was that Venture was not a prospective tenant after its withdrawal. He also said that for about six months there were unsuccessful negotiations to set up a Tattslotto agency in a kiosk and that around July 1986 some foot traffic numbers were obtained from a "professional organisation".

In cross-examination Mr Ellwood accepted that his memory of events would have been better at the time he wrote a memorandum to Mr Edwards following receipt of the letter from the plaintiffs' then solicitors. However, most of that memorandum is written in terms of what the position would have been rather than what it was, speaks in generalities and does not deal specifically with the issues arising out of the alleged representations.

Generally speaking however, the substance of Mr Ellwood's evidence-in-chief was unaffected by the cross-examination due to his inability to recall any specific conversations with people, but Mr Ellwood did say that if prospective tenants asked if Venture was going into the centre, it was his practice to explain that they had a proposal from Venture at one stage, but it had been withdrawn. Having regard to the matters I canvassed when dealing with the cross-examination of Mr Edwards, I treat this answer with considerable scepticism. Further, it is improbable that Mr Ellwood would have left the matter there having regard to the significance of securing Venture as a major tenant and having regard to the fact that at about the time he saw Mr Stocks Mr Edwards was due to re-approach, or had just re-approached, Venture and that this had given Mr Edwards hope that the Venture project might be resurrected.

However, I find that generally speaking there was little in the evidence given by Mr Ellwood that was of assistance in the resolution of the issue as to whether the alleged representations were made.

Mrs Stocks gave evidence, but nothing material to this issue. She said, and I accept, that the whole business has been very traumatic for her and that she had blocked a lot of it out of her memory. However, the evidence given by Mr Shea is of assistance upon the resolution of the issue as to whether the representations were made.

In 1986 Mr Shea and his wife were the proprietors of a shoe shop at 348 Main Road, Glenorchy trading under the name of Pee Cee Shoes. Mr Shea said that in early 1986, Mr Ellwood approached him and asked if he would be interested in moving into Northgate. Mr Shea was interested provided the conditions, including the identity of the major tenants, period of lease and rental, were satisfactory to him.

He said that he saw Mr Ellwood in the offices of Edwards Windsor on several occasions. He said that Mr Ellwood told him that the major tenants would be Coles Super K and Venture and that they had both signed a lease. He said that Mr Ellwood also told him that there would be 50,000 people a week going through Northgate and that there would be a Tattslotto kiosk. He said that he was also told by Mr Ellwood that all the shops had been let.

Mr Shea produced his copy of the tenancy works booklet. On the plan of the layout of Northgate in the booklet, Mr Shea had written the names of various traders. He had drawn a line dividing the space marked for major tenant 2 into two parts, apportioned roughly two-thirds and one-third. In the larger space he had written "Venture" and in the smaller space, "BE". The minutes of a site meeting held on 10 March 1986 show that Mr Bruce Eaton was interested in becoming a tenant as Loughrans had withdrawn its interest. By 6 May 1986 Mr Eaton confirmed his interest but not for the whole of the area marked major tenant 2. Eventually, Mr Eaton took a lease of about one-third of major tenant 2, roughly corresponding to the line drawn by Mr Shea on the plan in his tenancy works booklet.

Mr Shea said that he still believed that Venture was going into Northgate, albeit taking a smaller floor space than originally envisaged.

The difficulty about the lines and writing on Mr Shea's plan is that he was unable to say when he had written them on the plan, nor even if all the writing was done at the same time, except to state that it was written on the plan after he had signed his lease and a good while before the opening of Northgate in November 1986.

Whenever Mr Shea wrote "Venture" on the plan, it is likely that he wrote it as a result of Mr Ellwood telling him that Venture was a tenant or a prospective tenant. To that extent, his evidence corroborates Mr Stocks' evidence concerning statements made by Mr Edwards and/or Mr Ellwood about Venture being a tenant.

Mr Shea said that Mr Ellwood told him that tenants such as Sussan's, Just Jeans and others, whose names he could not remember, were going into Northgate. The minutes of various meetings show that those two operators, and a good number of others like them, were approached by Mr Ellwood and/or Mr Edwards and discussions were held, but many of them, including Just Jeans, came to nothing. This evidence by Mr Shea confirms the conclusion I have reached with respect to a tendency on the part of the defendant's agents to exaggerate the existing state of affairs in order to secure tenants.

Mr Shea said that after he had signed his lease and before the opening, Mr Ellwood told him that all the shops were let. His claim that Mr Ellwood told him that 50,000 pedestrians a week would go through Northgate was not challenged in cross-examination, nor was his evidence that Mr Ellwood told him there was going to be a Tattslotto kiosk, although I do not overlook the fact that his evidence did not specify when he was first told of either of these things.

Mr Millington leased a shop at Northgate that he called Millington's Menswear. He said that Mr Doug Fitzgerald took him and his wife through Northgate about three months before it opened. He said that Mr Fitzgerald told them that Coles were going to put in a store bigger than the existing one over the road, and that Venture were going into the space next to Coles. Mr Millington said that Mr Fitzgerald also told him and his wife that there would be a "stand alone Tattslotto" at Northgate. The substance of Mr Millington's evidence was not challenged.

Although it is clear that Mr Fitzgerald was not employed to manage Northgate until after any material representations had been made to Mr Stocks, Mr Millington's evidence of what Mr Fitzgerald told him generally supports the substance of what Mr Stocks said that Mr Edwards and/or Mr Ellwood told him. And it is worth noting that in cross-examination, Mr Stocks said that, right up until the opening of Northgate, Mr Fitzgerald told him that Venture was going into the centre, explaining that the fit-out of the store would take place after the opening.

Mr Palmer was another tenant at Northgate who gave evidence. He is a hairdresser. Mr Palmer said that he spoke to people at Edwards Windsor but did not identify who those people were. He said that "It was intimated or suggested that certain shops were going to be in the centre such as Coles and a variety-type store like K Mart. Venture was mentioned." Mr Palmer also said, "I also understood that we were to have a Tattslotto cubicle right in the area where I chose to have my shop." Finally, he said, "It was definitely stated that they expected in excess of 50,000 people per week."

None of Mr Palmer's evidence was challenged. Obviously it lacks the specificity of the evidence given by the other tenants, particularly with respect to the identity of the person or persons who made the representations other than that those persons were connected with Edwards Windsor. However, it does have some probative value in that it is to the same general effect as the evidence given by Mr Stocks and the other tenants.

Some parts of the evidence given by Mr Stocks were unreliable such as that concerning Christmas celebrations and promotions in Northgate immediately after the opening, and the accuracy of some figures that he put to Mr Edwards to claim a reduction in rent after he had been trading for a short while, but overall, Mr Stocks adhered to the account that he gave in evidence-in-chief with respect to the making of the pleaded representations; evidence that was supported in part, by the documentary evidence, by other witnesses called to give evidence in support of his case and, in the end, by the evidence given by Mr Edwards.

I find that at a meeting about the end of January 1986 between Mr Ellwood, Mr Edwards and Mr Stocks at the offices of Edwards Windsor, Mr Edwards and/or Mr Ellwood told Mr Stocks that Coles was committed to being the major tenant at Northgate and that it would operate a super store there. The evidence and the agreed facts do not permit me to make a finding as to the exact words used but, consistent with the written material published on behalf of the defendant's agents, the words conveyed the impression that the Coles store would be very large and would comprise a supermarket with a substantial area devoted to the sale of variety goods. The store was very large but did not have a substantial area devoted to the sale of variety goods.

I find that at the same meeting, Mr Stocks was told by the same people, that the estimated pedestrian traffic flow was approximately 50,000 people a week and that a Tattslotto agency would be established at a kiosk in the centre of the specialty shops area. The basis for the representation about the pedestrian traffic flow was Mr Edwards' unsubstantiated guess that the weekly traffic flow through Northgate would be twice the number that a competitor told him went through his centre each week. The evidence establishes that less than half the number represented by Mr Edwards went through Northgate each week. In a memorandum to the defendant written by Mr Allingham on 13 March 1987, Mr Allingham stated that, "It has been indicated to the writer that the pedestrian traffic through the Centre is in the order of 20,000 per week rather than the 40,000 – 45,000 stated in the Plant Location Study." Mr Shea complained to Mr Edwards by letter dated 13 March 1987 that, amongst other matters, the pedestrian traffic through Northgate was not as high as had been estimated. In his reply dated 18 March 1987 Mr Edwards says, "Although we expected more than 20,000 passing through the Centre per week nowhere was it stated that 56,000 or thereabouts would be passing through the Centre." This is the only evidence of the number of people passing through Northgate each week after it opened and I accept it. The only basis for making the representation that there was going to be a Tattslotto kiosk in the centre of the store was Mr Edwards' understanding this was something that the promoters wished to achieve. Negotiations to fulfil that wish did not start until after the representation had been made. It was common ground that there was never a Tattslotto kiosk at Northgate.

I also accept Mr Stocks' evidence that he was told that nearly all the shops were let and that there were only three left. I also accept that because Northgate was divided into three halls, the number of available shops in the area appropriate for the business that the plaintiffs wanted to carry on may have been limited, in the sense that although at the time the representation was made, no leases had been signed, there were only a limited number of shops in that area that were not then the subject of discussion with other prospective tenants. However, as Mr Edwards' evidence has demonstrated, the whole marketing tenor adopted by him was to create the impression that there was a high demand for shops at Northgate and that if anybody wanted to get a shop there they had to hurry. The evidence was not that there are only three shops left for lease in the area where the plaintiffs' shop could go, but simply that there were only three shops left available for lease and that statement was not true.

Reliance

It is apparent from Mr Edwards' diary note headed January 1986, Mr Stocks' letter to Mr Edwards dated 11 February 1986, and the minutes of a meeting of the combined leasing/centre management committee held on 10 March 1986, to which I have already referred, that there were several meetings between Mr Stocks and Mr Edwards and/or Mr Ellwood during the period beginning late January and concluding in about March 1986. The purpose of the meetings was to try and get Mr Stocks into a shop which had a floor area big enough for his requirements. In the schedule of proposed tenants prepared by or under the direction of Mr Edwards and tabled at the meeting of the combined leasing/centre management committee held on 14 February 1986, Mr Stocks' proposed business is shown as the preferred use for shop 17. It is interesting to note that "Discount Cosmetics" is listed in the column headed "Application received", when that was not then the case. The minutes of the meeting of the combined leasing/centre management committee for 10 March 1986 show that consideration was being given to re-arranging shops 17 and 18 to provide Mr Stocks with the floor space he required but in the end, the plaintiffs settled on shop 31. Following that meeting, the documentary evidence indicates that there were discussions between Mr Stocks and Mr Ellwood and/or Mr Edwards about which shop and what floor space Mr Stocks would take, which culminated with the plaintiffs making an application for a lease of shop 31 in April 1986.

All of this material indicates that the plaintiffs were keen to get a shop in Northgate soon after the initial meeting between Mr Stocks, Mr Ellwood and Mr Edwards, and supports the finding that I have made that the representation was made at that meeting. Mr Ellwood made some financial checks with respect to the plaintiffs and the latter forwarded a cheque being one month's rental by way of deposit on 31 May 1986.

It was not contended that the defendant did not owe the plaintiffs the relevant duty of care. Clearly, the defendant owed the plaintiffs a duty to take care to prevent economic loss by misstatement because it, and its agents, knew, or ought to have known, that the statements that were made and pleaded as misrepresentations, were such as to engender in the plaintiffs reliance upon them. See Allied Finance & Investment Ltd v Haddow and Co [1983] NZLR 22 at 24; San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 at 355.

Mr Stocks gave direct evidence that he was induced by the representations to take a lease of shop 31 at Northgate, and as Mr Sealy submitted, common sense decrees that that was the case. It was common ground with respect to all the parties to this litigation that a critical element in the success of Northgate was the extent of custom that would be attracted to the centre. It was also common ground that the statements claimed to have been made as negligent misrepresentations were, if made, all probative of that critical element. All the misrepresentations were about matters that were peculiarly within the knowledge of the defendant and its agents, and the plaintiffs were entirely dependent upon them when making a decision whether to take up a lease or not.

Events after April 1986

As the events turned out, the plaintiffs did not sign a lease for shop 31. However, it was common ground that by a letter from Mr Stocks to Mr Edwards dated 14 May 1986 accepting an offer of a tenancy of shop 31 upon the terms of a letter dated 2 May 1986, an equitable lease was entered into.

The plaintiffs had no capital to put into the Northgate business and relied upon two loans from Mrs Stocks' father totalling $105,000 together with a joint personal loan from a financial institution. Mrs Stocks' father was the guarantor of that loan. In due course the plaintiffs received shop fit-out plans from Abbott Holdings Limited. They did not gain access to Northgate until about a week before the opening in November 1986 to enable them to fit out the shop and be ready to commence trading. The fit-out consisted of bringing power and water into the shop, installing a ceiling and walls, laying carpet and tiles, building a front, installing shelving and the like. Approximately $75,000 worth of stock was bought.

It soon became clear to the plaintiffs that Venture was not going into Northgate and that there was no Tattslotto kiosk. There were a number of acrimonious discussions between the plaintiffs and Mr Fitzgerald, other tenants and Mr Fitzgerald, and the plaintiffs and Mr Edwards about the absence of Venture, the absence of the Tattslotto kiosk, the size and nature of the Coles store and the low numbers of people coming to the centre. The plaintiffs' shop was not making a profit. On several occasions in late January or early February 1987 the plaintiffs asked Mr Edwards if the rent could be reduced due to poor trading figures. It seems that they were not alone in doing so. On 4 February 1987 the defendant resolved that "a tough stand be taken with tenants seeking either rental holidays or reduced rentals, and in the event of non-payment of rental tenants were to be issued with a Notice to Quit …". On 13 February such a notice was issued to the plaintiffs. The plaintiffs packed up their stock and such fittings as they could remove and left Northgate on or about 14 March 1987. On 27 February that year they paid rent to 13 March 1987.

The claim for damages

The plaintiffs do not claim damages for the loss of profits from trading at Northgate. The claim for damages resulting from the negligent misrepresentations is limited to the cost of fitting-out the shop, thrown away, the plaintiffs' labour in the Northgate shop from the time fitting-out commenced until 13 March 1987, rent paid from November to March, legal costs associated with drawing up the lease, and general damages for vexation and distress, together with interest in accordance with the principles established in Hungerfords v Walker (1988) 171 CLR 125.

Although the oral evidence was that the fit-out cost about $80,000, many of the documents to support that evidence have disappeared with the passage of time. In the end, the defendant agreed on a sum of $16,298.70 as the cost of the fit-out thrown away. The plaintiff also tendered the documents to sustain the claim in that sum and there was evidence that the accounts were paid. There was evidence to establish that the total rent paid was $10,759.72. There was evidence, which I accept, that the plaintiffs spent $500 on legal costs associated with the lease documents. I find that it was reasonable to incur those costs and that the amount was reasonable. The claim for labour wasted is based upon the proposition that the plaintiffs expended time at the Northgate shop that they would not have spent but for the negligence of the defendant, and that that labour had a value that could be calculated. The calculation is put this way:

"The Northgate shop was open for 16 weeks (17 November 1986 – 13 March 1987)
Gail Stocks: 16 hours per week for 16 weeks – 256 hours. The applicable rate is for a Manageress under the Retail Trades Award (No 2) 1986 at page 6, being $357.50 per week. It was a 40 hour week in 1986. At an hourly rate of $8.94, the second plaintiff claims $2288.00.
Terry Stocks: 40 hours [At T189:22] Mr Stocks said he worked 8-9 hours per day at NorthGate for 5 ½ days per week. The amount claimed is for a full week of 40 hours per week for 16 weeks + 16 weeks full time. (sic) 16 weeks at $357.50 per week gives $5720.00."

Authority to support to an award of damages for labour wasted appears in the reasons for judgment of Goldberg J in Crystal Auburn Pty Ltd v Wollermann Pty Ltd [2004] FCA 821 at par151 where his Honour said:

"Mr Siberas and Mr Davies claimed to have spent substantial periods working at the business for which they did not draw any earnings. As Sundberg J noted in the first judgment, Cut Price Deli Pty Ltd v Jacques (1993) 15 ATPR (Digest) IP46-102 at 53,444-53,445; on appeal (1994) 49 FCR 397 at 404-405 is authority for a claim for uncompensated labour. What is at issue here is the quantum to which the applicants are entitled. As Heerey J pointed out in Jaldiver at 105: 'To work without reward is to suffer loss, because ordinarily work is done in exchange for reward'."

In Cut Price Deli Pty Ltd v Jacques (1994) 49 FCR 397, the reasons for the judgment of the Full Court of the Federal Court referred to Dixon J (as he then was) in Toteff v Antonas (1952) 87 CLR 647 when his Honour said that the respondents could recover as damages a sum "representing the prejudice or disadvantage" they have suffered as a result of altering their position in consequence of the misrepresentations, and went on to hold:

"The necessity of working, without any financial reward, much longer each week than one had intended or desired to do in a business under one's control is in our opinion such a prejudice or disadvantage as the law will treat as compensable in damages and, therefore, properly included as part of the consequential loss sustained by the respondents."

This principle was applied in Carlton v Pix Print Pty Ltd [2000] FCA 337, again limited to the extra hours of labour wasted by reason of the misrepresentations. It was also applied by Heerey J in Jaldiver Pty Ltd and Ors v Nelumbo Pty Ltd, Federal Court unreported, 2 December 1992 when he said at par231, "To work without reward is to suffer loss, because ordinarily work is done in exchange for reward." The award relied upon in the particulars is the appropriate award and the figures cited are correct. It can be said that the classification of section manager is appropriate to the work of Mr Stocks, but it may be that the classification, "Senior sales assistant" is more appropriate to the work done by Mrs Stocks. The rate for a senior sales assistant in 1986 was $294.20 per week. Of course, this assessment does not admit to precise mathematical calculation. An allowance must also be made for tax. Taking these factors into account I assess this head of damage in the sum of $5,300.

On behalf of the defendant and the third parties, submissions and evidence addressed the issue of the plaintiffs' lack of experience in the retail trade and whether there was any causal connection between the economic collapse of the plaintiffs' business at Northgate and the making of the representations. Such submissions miss the point. The plaintiffs' case is simply put on the basis that the representations induced them to take a lease at Northgate and spend money and labour fitting out the shop and paying rent. But for the representations, they would not have done those things. In the assessment of damages for tort, the general principle is that the plaintiff is entitled to be put in the position he or she would have been had the tortious conduct not occurred. See Gould v Vaggelas (1985) 157 CLR 215 at 220 – 221. In State Bank of New South Wales Ltd v Yee (1994) 33 NSWLR 618, a case concerning negligent misrepresentation, Giles J said, at 630:

"In arriving at the damages necessary to compensate for a legal wrong, the objective is to put the plaintiff in the same position, so far as money can do so, as he would have been in had he not sustained the wrong: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39 per Lord Blackburn."

See also Netaf Pty Ltd v Bikane Pty Ltd (1989) 92 ALR 490 at 504 et seq.

Examination of the plaintiffs' trading losses at Northgate is not relevant to the assessment of damages. The false representations that were made induced the plaintiffs to expend the money claimed as special damages, money that they would not have expended but for the making of those representations.

The plaintiffs also claim damages in the nature of interest. The seminal authority concerning the inclusion of interest in an award for damages is Hungerfords v Walker (supra). That case established an entitlement to the recovery of the value of the injury arising from the foreseeable loss of the use of money that has been paid away or withheld. The plaintiffs claim interest on the amounts paid away for shop fittings, rent and legal costs, totalling $27,058.42. In accordance with the Hungerford principle, the plaintiffs are entitled to recover either the incurred expense, if it was reasonably foreseeable, or the opportunity cost if that cost was reasonably foreseeable. See Hungerford at 143 – 144.

In this case, all the money paid away was borrowed money, for the whole of the Northgate business was established on borrowed money. In addition, the shop at Centrepoint was dependent upon an overdraft. I find that if in March 1987, the defendant had paid to the plaintiffs the money that they had paid away as a result of the defendant's tortious conduct, that money would have been applied to reduce the plaintiffs' overdraft. That would have been common sense and that was the evidence of the plaintiffs, although at one stage Mr Stocks did, rather wistfully, I thought, express a hope that he might be able to "update his motor vehicle".

The parties were agreed that in the event of me reaching the foregoing conclusion, I should hear them further with respect to the assessment of damages in the nature of interest before proceeding to a final judgment. This I will do, but before leaving this point I need to deal with one more matter.

The effect of bankruptcy on the claim for damages in the nature of interest

While carrying on business at Northgate, the plaintiffs opened another small cosmetics business in Moonah. After leaving Northgate, they transferred the Moonah business and the Centrepoint business to a new location in the centre of Hobart. None of these moves was successful. The plaintiffs' business collapsed and they faced financial ruin. On 15 December 1988, the plaintiffs were made bankrupt. That order was discharged on 23 December 1991. The defendant contends that any claim for interest on moneys paid away must cease on bankruptcy.

Upon the plaintiffs becoming bankrupt, all their property vested in the official trustee in bankruptcy in accordance with the Bankruptcy Act 1966 (Cth) ("the Act"), s58(1). Property is defined by the Act, s5(1), to include "real and personal property of every description". Cummings v Claremont Petroleum NL (1996) 185 CLR 124 and Cotterill v Bank of Singapore (Australia) Ltd (1995) 37 NSWLR 238 are authorities for the proposition that the plaintiffs' right to bring these proceedings was property that vested in the official trustee in bankruptcy. This chose in action formed part of the plaintiffs' property available for the payment of debts owed to their creditors as is provided by the Act, s116. By virtue of the Act, s58(3), the recovery of the loans made to the plaintiffs became unenforceable, and by force of s82, became debts provable in the plaintiffs' bankruptcies.

The plaintiffs were discharged from their bankruptcies three years after they filed their statements of affairs in accordance with the Act, s149(4). Upon discharge, s153(1) released the plaintiffs from all debts provable in the bankruptcies which, of course, included the loans that the plaintiffs had taken out to operate their businesses.

By a deed dated 29 September 1999, the official trustee in bankruptcy assigned to the plaintiffs the chose in action which resulted in the commencement of these proceedings. The plaintiffs paid the trustee $500 and entered into a covenant to pay him or her 25 per cent of the net proceeds of a verdict in their favour, provided that such sum should not exceed the total indebtedness of the bankrupt estates.

The defendant does not challenge the plaintiffs' right to bring these proceedings, but submits that "damages in the nature of interest could not survive the expunging of the debt it would have been used to retire". That debt was not expunged on bankruptcy. The Act operated to prevent proceedings being brought to recover it. The creditors were given the right to prove in the bankruptcies and such proof would have included interest at the relevant rates until payment. The creditors still have the right to recover interest due if there is property available for payment to the creditors. More importantly, the chose in action assigned to the plaintiffs arose in 1986 and includes (inter alia) a right to recover damages being the foreseeable loss of the use of money paid away or withheld. It seems to me that the loss of the use of that money has continued uninterrupted since the time of payment or withholding, and financial loss to the plaintiffs as a result thereof was foreseeable throughout the whole of that period, except the period commencing with bankruptcy and in concluding with the assignment to them of the chose in action. To put this another way, the chose in action has remained intact from the time it arose. For a period of about three years, nine months, it was vested in a person other than the plaintiffs and during that time, they suffered no loss from the loss of use of $27,058.42. After the bankruptcies had been discharged and the chose in action assigned to the plaintiffs, it was foreseeable that they would suffer the loss of the use of $27,058.42 that should have been paid to them, but this time by way of lost opportunity cost, since they were no longer liable to pay interest on the loans.

Damages for vexation and distress

The final head of damages claimed is general damages for vexation and distress. Modern authority supports the making of a modest allowance to compensate the plaintiffs for foreseeable vexation and stress caused by the defendant's tortious conduct.

A useful discussion on this topic is to be found in the judgment of Sheller JA in Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 37 – 39. In Young v Tomlinson [1979] 2 NZLR 441, a claim for economic loss, an allowance was made at 461 – 462, for "annoyance, frustration, discomfort and inconvenience". However it was there noted that "such awards are not likely to be on a very liberal basis unless for example, it is shown that actual damage to health or the like has been involved". See also Mouat v Clark Boyce [1992] 2 NZLR 559 at 569. More recently, in Walmsley v Consentino [2001] NSWCA 403 at pars57 – 59, the New South Wales Court of Appeal upheld an allowance for foreseeable vexation and distress arising out of the professional negligence of a solicitor in failing to make a timely claim.

It was clearly evident from the evidence of both plaintiffs that in the years following their entry into the Northgate Shopping Centre they suffered much inconvenience, stress and anxiety. They lost their house and their employment. There were tensions within the family, in part because Mrs Stocks' father lost the money he had lent the plaintiffs and as a result of the guarantees that he had entered into. However it is difficult to say how much of the stress and vexation was caused by the tortious conduct. I am far from persuaded that the bankruptcy was due to the defendant's tort, although it was a contributing factor. The evidence showed that the Centrepoint business was not doing well in the months leading to its transfer to the new location in Liverpool Street. There was no evidence about the success or failure of the Moonah venture. In these circumstances, the plaintiffs have only persuaded me that the negligence of the defendant was the cause of vexation and stress for a limited period and to a limited extent. Nonetheless the plaintiffs are entitled to an award under this head.

Throughout this litigation the plaintiffs have been treated as a single entity in the sense that each had an equal interest in all their business dealings, and in all their dealings with the defendant's agents, each was acting on his or her own behalf, and as known agent for the other. I will hear counsel about the terms of any final judgment, but with respect to this head of damage, I assess the sum of $5,000 for each plaintiff.

This brings me to consider the final issue in this litigation as the plaintiffs' claim for indebitatus assumpsit does not arise in view of the findings that I have already made.

The limitation defence

As mentioned in par5 of these reasons for judgment, the plaintiffs' writ was issued on 7 September 1992. The defendant submitted that although Northgate did not open until November 1986, if it is found that the pleaded misrepresentations were made and caused the plaintiffs to suffer damage, that damage was first suffered prior to 7 September 1986, and thus the plaintiffs are barred from bringing these proceedings by virtue of the Limitation Act 1974, s4. The defendant contended that the plaintiffs suffered loss:

· on 31 May 1986 when the deposit was paid; and/or
· on or about September 1986 when they took out a loan and incurred a liability for interest.

The plaintiffs' response to these submissions was:

·     the deposit remained in the Edwards Windsor trust account until journalled out on 2 December 1986;
·     the plaintiffs did not go into occupation of the shop until on or about 10 November 1986;
·     the loan did not constitute a loss until either the principal or any part of it was advanced to the plaintiffs or the plaintiffs paid interest.

Pullen v Gutteridge [1993] 1 VR 27 at 65 – 77 contains a scholarly analysis of the authorities concerning the onus of proof in cases where the defendant pleads that the plaintiff's remedy is barred by the effluxion of time (as opposed to cases where the statute extinguishes the cause of action, or provides that timely commencement of proceedings is a condition precedent to jurisdiction). The court concluded that in such a case, the onus of proof lies upon the defendant who pleads the Limitation statute. Pullen was applied in Monger, Re; Ex parte Cross [2004] WASCA 176 where it was said at par69:

"The plea of the statute in such a case is a plea in confession and avoidance, so that the defendant who pleads the statute is required to plead and prove that the action was commenced outside the limitation period; Pullen v Gutteridge at 76 per Booking, Tadgell and Hayne JJ."

In Segal t/as Segal Litton & Chilton v Fleming [2002] NSWCA 262 at par27, the Court of Appeal in New South Wales applied the reasoning in Pullen. In Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 Malcolm CJ (with whom Kennedy J agreed) at pars36 – 43, referred to English authority that is to the effect that the onus is on a plaintiff to prove that the claim is within time if the statute is pleaded, and points out at [45], that Halsbury's Laws of Australia Vol 16, pars255-90 states that there is conflicting authority on the question whether, once a limitation defence has been raised by a defendant, it is the plaintiff who bears the onus of proving that the claim is not statute-barred. However the court decided to follow the reasoning in Pullen. The same approach is to be found in a number of other cases. See Pinch v Prinsse [2000] NSWSC 1030; Mewett v Commonwealth of Australia [2000] FCA 1045; Bailey v Redebi Pty Ltd t/as PR Design Co [1999] NSWSC 918. I shall follow those decisions. Mr Estcourt did not submit to the contrary.

With respect to the competing arguments, I find that the plaintiffs paid the deposit to the defendant's agents on 31 May 1986 and, in accordance with the records of the trust account, find that it remained in the agent's trust account until 2 December 1986. Evidence of the terms of the equitable lease depends upon the contents of a letter from Mr Edwards to Mr Stocks dated 2 May 1986. However, that letter is silent with respect to the date upon which rent first became payable. A draft lease was later sent to Mr Stocks, but it was never completed or signed. In it, the space for the date of commencement is blank. Mr Stocks gave evidence that he was not obliged to pay rent until he "got in" to the shop and that that date was 10 November. Mr Tatarka, counsel for the third parties, intervened at that stage of the evidence to say that he was instructed that rent was not payable until the centre opened, but that assertion was not later established by evidence. A handwritten letter from Mr Ellwood to Mr Stocks dated 17 November 1986 refers to the centre having been completed, and asks for payment of various amounts expended on the fit-out. I find that the rent was not payable until 17 November 1986, the day Northgate opened.

With respect to the bank loan, the transcript records the following agreed fact:

"… on or about 1 September 1986, [the plaintiffs] borrowed the sum of sixty thousand dollars from the Westpac Bank at a rate of eighteen point seven five per cent interest.

Mr Stocks gave evidence that he and his wife used the overdraft to fit-out the shop and buy stock, as well as leaving an amount as a "buffer". He said that the stock was bought on 30 day payment. Although all the dockets evidencing the total cost of the fit-out were not tendered in evidence, the date on the earliest of those dockets that were tendered in evidence is 18 November 1986. There was no direct evidence of when any principal was paid, nor when any liability was incurred to pay interest. The agreed fact is vague about the precise date the plaintiffs' "borrowed" the money. If the expression "on or about 1 September" encompasses a date more than six days either side of 1 September, it is possible that the money was not borrowed until after 6 September 1986. I find that, in accordance with ordinary banking practice, when the loan was taken out the sum lent was credited to the plaintiffs' account and drawn by them when needed. Until drawn, the plaintiffs incurred no liability to pay interest or make any repayment. As the fit-out did not commence and the stock could not be put in the shop until two months after the money was borrowed, it is not likely that the plaintiffs withdrew any of the loan until well after 7 September 1986. That conclusion, coupled with the imprecision in the agreed fact as to the date the money was borrowed, leads me to find that I cannot be satisfied that it is more probable than not that the plaintiffs incurred any liability with respect to the bank loan prior to 7 September 1986.

In Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, the majority joint judgment made it clear at 526, that in a claim for damages for economic loss caused by a negligent misrepresentation, the cause of action did not arise until actual damage had occurred, whether the plaintiff was aware of that or not. Their Honours said at 526:

"In a case such as the present, it may safely be assumed that the plaintiff is entitled to recover 'a sum representing the prejudice or disadvantage [the plaintiff] has suffered in consequence of his altering his position under the inducement' (Toteff v Antonas (1952) 87 CLR 647, at p 650; see also Potts v Miller (1940) 64 CLR 282, at p 297; Gould v Vaggelas (1984) 157 CLR 215, at p 220; Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1, at p 12 (where that measure of damages was applied in an action for damages for contraventions of ss52 and 53(g) of the Trade Practices Act 1974 (Cth)) of the misleading conduct or 'the actual damage directly flowing from' (Clark v Urquhart [1930] AC 28, at p 68; State of South Australia v Johnson (1982) 42 ALR 161, at p 170) that conduct, to take up and adapt well-known statements of the measure of damage applicable in an action of deceit."

This principle was endorsed by the judgment of the court in Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 at 407 – 408, holding that risk of loss was not a category of loss.

Mr Estcourt submitted that by entering into an agreement to make a lease, and by paying a deposit in May 1986, the plaintiffs suffered a loss and thereupon, the cause of action was complete. The submission was that the payment of the deposit was an expenditure of money "towards the establishment of a business that, on [the plaintiffs'] case, could never have been as profitable as it would have been as it would [sic] had the negligent mistatements been correct" and [the plaintiffs] "would not have expended money towards the establishment of the business had they known the representations had been false". However, whether the business failed to be profitable as a result of the negligent misrepresentations is not relevant. Any such loss of profitability would not have constituted actual loss until it occurred, and there was no evidence to the effect that the value of the equitable lease entered into in late May 1986 was less than it would have been had the representations been true or not made. In this respect the present case can be distinguished from those cases in which there was an immediate diminution in the value of property or chose in action upon the entry into contractual relations. For example, Forster v Outred & Co [1982] 1 WLR 86 was a case in which a mother executed a mortgage over a home as a result of negligent advice in order to secure borrowings by another and immediately thereby diminished the value of her home. In D W Moore & Co Ltd v Ferrier [1988] 1 WLR 267, the omission of a restraint of trade clause in a contract for the sale of a business resulted in the immediate diminution of the value of the chose in action received. In Scarcella v Lettice (2000) 51 NSWLR 302, Handley JA said at 306, a cause of action in negligence is not complete until the plaintiff first suffers actual loss or damage. Damage which is prospective or contingent does not qualify as actual damage for this purpose. In that case, the plaintiffs acquired a title to land which was erroneously thought to have the benefit of a right of way over two adjoining blocks of land. It turned out that there was a right of way, but it was only over one block of land, not two, with the result that the plaintiffs were denied the access that they thought they had when they bought the land. Due to the solicitor's default, this defect was not detected at the time of purchase and remained undiscovered for eleven years. The New South Wales Court of Appeal held that the cause of action was complete at the time of the transfer of the land to the plaintiffs because it was then that loss was suffered, viz the difference between the amount paid for, and the value of, the land.

Mr Estcourt relied upon a recent case in the New South Wales Court of Appeal, Winnote Pty Ltd v Page [2006] NSWCA 287 as authority for the proposition that "in cases like the present the fact that a substantial loss occurs at a later point in time does not prevent an earlier, smaller loss barring the whole claim." I accept that the case is authority for that proposition, but it does not assist the defendant in the present matter. Winnote concerned a mining lease that turned out to be virtually worthless due to solicitors' negligence. However, in that case there was evidence of expenditure incurred in connection with the lease outside the limitation period. See par61.

I have already made a finding that I am not persuaded that the plaintiffs incurred a liability to repay any loan, or pay interest on any loan, as a result of the representations. With respect to the other relevant head of damage, there is a letter from the defendant's solicitor to the plaintiffs' solicitor enclosing the lease. It is dated 22 October 1986, so it is unlikely that the $500 paid for legal costs was paid before 7 September 1986. Accordingly, the deposit of $3,942 was the only sum that was paid by the plaintiffs prior to 7 September 1986 as a result of the misrepresentations. However, this was not a payment of rent, but payment of a sum of money to be held by Edwards Windsor as trustee upon trust for both the plaintiffs and the defendant. The basic term of the trust was that should Northgate open for trading, the money was to be paid to the defendant being one month's rent, but should Northgate not open, the money was to be repaid to the plaintiffs. Accordingly, the sum paid was held by Edwards Windsor in its trust account until after the centre opened.

Thus, this is a contingency situation as was the case in Wardley Australia Ltd v Western Australia (supra) in which it was held that where a plaintiff enters into a contract that gives rise to a contingent loss, no loss is suffered until the contingency is fulfilled and the loss becomes actual. In Murphy v Overton Investments Pty Ltd (supra) the judgment of the court described the effect of Wardley in these terms at 408:

"In that case, the mere entry into obligations which might, but need not, have had detrimental consequences in the future was held not to have occasioned loss or damage to the party making the contract."

Accordingly, I am not persuaded to the requisite degree that that the plaintiffs suffered any actual loss until after 7 September 1986, and the bringing of this action is not barred by reason of the provisions of the Limitation Act, s4.

There will be judgment for the plaintiffs against the defendant. I will postpone fixing the quantum of damage until counsel have had an opportunity to read these reasons for judgment and make submissions with respect to damages in the way of interest.

During the course of the trial admissions were made by the first and second third parties that they were not authorised by the defendant to make the representations concerning a Coles super store and that over half the shops at Northgate had been leased (statement of claim pars3(a) and (d)), that they were not authorised to make the representation about the volume of pedestrian traffic prior to July 1986 (statement of claim par3(b)) and that they were not authorised to make the representation about the Tattslotto agency prior to 3 June 1986 (statement of claim, par3(c)). I find that the first and second third parties breached the duty they owed the defendant and acted in excess of their authority by making the pleaded representations when they did. They are liable to indemnify the defendant with respect to the whole of the judgment sum. Mr Tartara did not contend to the contrary in the event of me making the findings of fact that I have made. As mentioned at the beginning of these reasons for judgment, no relevant misrepresentation was made by Mr Douglas Fitzgerald, and accordingly, there will be judgment for him against the defendant on the third party proceedings brought against him.