Vasue v Lubo Medich Holdings

[2008] NSWSC 899

CITATION:	Vasue v Lubo Medich Holdings [2008] NSWSC 899
HEARING DATE(S):	04-06 August 2008
JUDGMENT DATE :	6 August 2008
JURISDICTION:	Equity
JUDGMENT OF:	White J
EX TEMPORE JUDGMENT DATE:	6 August 2008
DECISION:	See para 66 of judgment.
CATCHWORDS:	CONTRACT – offer and acceptance – whether the delivery of unsigned lease and lessor’s disclosure statement constituted an offer – whether the return of the lessor’s disclosure statement signed but with alterations constituted acceptance – no contract formed - ESTOPPEL – equitable estoppel – no assumption that defendant was legally obliged to enter into the lease – acts of detrimental reliance only minimal – not unjust for defendant to depart from assumption made by plaintiff – no estoppel
LEGISLATION CITED:	Trade Practices Act 1974 (Cth) Retail Leases Act 1994 (NSW) Conveyancing Act 1919 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Long v Piper [2001] NSWCA 342 Veivers v Cordingley [1989] 2 Qd R 278 EK Nominees Pty Limited v Woolworths Ltd [2006] NSWSC 1172 Briginshaw v Briginshaw (1938) 60 CLR 336
PARTIES:	Vasue Pty Ltd v Lubo Medich Holdings Pty Ltd
FILE NUMBER(S):	SC 2504/07
COUNSEL:	Plaintiff: M W Sneddon Defendant: D H Murr SC & J B Conomy
SOLICITORS:	Plaintiff: CMC Lawyers Defendant: Anthony Clive Parisi Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Wednesday, 6 August 2008

2504/07 Vasue Pty Ltd v Lubo Medich Holdings Pty Ltd

JUDGMENT

1 HIS HONOUR: The plaintiff seeks orders to compel the defendant to give it a lease of a butcher’s shop at 94 Broomfield Street, Cabramatta. It claims that in 2006 or 2007 it entered into an agreement with the defendant for the lease of the premises for a term of three years with a three-year option. Alternatively, it says that the defendant is estopped from denying that such an agreement was made, or is estopped from departing from an assumption it induced the plaintiff to adopt that the plaintiff would be given such a lease. The plaintiff also says that the defendant engaged in misleading and deceptive conduct, or made false or misleading representations as to the grant, or possible grant, of a leasehold interest in the property contrary to ss 52 and 53A(1)(b) of the Trade Practices Act 1974 (Cth). It seeks an order under s 87 of the Trade Practices Act that the defendant execute a three-year lease with a three-year option to do what it represented or promised.

2 The plaintiff has been in occupation of the premises since 1993. Its lease expired on 30 April 2006. The defendant denies that any new agreement for lease was entered into and says that the plaintiff has remained in occupation as a tenant from month to month under the holding over provisions of the lease which expired on 30 April 2006.

3 On 3 April 2007, the defendant gave written notice that the monthly tenancy would terminate on 3 May 2007. The defendant seeks an order for possession.

4 The principal issues are, first, whether a concluded agreement for lease was made. Secondly, what promises or representations were made as to whether the plaintiff would be given a lease of the premises. Thirdly, whether the plaintiff acted to its detriment in reliance on any such promise or representation. Fourthly, whether representations or promises made by the defendant were fulfilled; and fifthly, whether it is unconscionable for the defendant to depart from the plaintiff's assumption that it would be given a three-year lease and a three-year option.

5 Prior to 22 November 2005, the sole director and shareholder of Vasue Pty Ltd (“Vasue”) was a Mr Chy Pou Yeak, known as Mr Jack Yeak. Vasue was also the lessee from the defendant of an adjoining newsagency. On 22 November 2005, Mr Jack Yeak was murdered. On 9 December 2005, three children of Mr Jack Yeak, namely Ms Mey Chou Yeak, Ms Ling Pao Yeak and Mr Ngim Chou Yeak met with directors of the defendant, namely Messrs John and Geoffrey Medich, and with the defendant’s property manager, a Mr Heness. Mr John Medich expressed sympathy for what had happened to Mr Jack Yeak, but expressed concern about the closure of the butcher’s shop and newsagency and asked how the family would run the business after his death. The leases on both shops were to expire on 30 April 2006.

6 There was a problem with respect to Mr Jack Yeak's estate. He apparently died intestate. He and his wife had divorced and a claim was made on the estate by a lady who managed the newsagency and who, I infer, claimed that she was his de facto wife.

7 The plaintiff alleges that in January or February 2006, Mr Heness represented to Mr Ngim Yeak that Vasue’s solicitor should finalise the administration of his father's estate so that the defendant could grant the plaintiff a new lease. The plaintiff says that Mr Heness promised that the defendant would grant such a lease. Mr Heness says that he told Mr Ngim Yeak to see his solicitor to arrange for administration of the estate so that someone would have authority to deal with matters arising under the lease. He denies saying that a new lease would be given. I accept that denial. Mr Heness did not consider he had authority to promise a new lease. No terms of a lease had been discussed. It is clear from the subsequent correspondence from the defendant that the defendant's position was that it would consider an application for a lease, but it made no promise to enter into a lease with the plaintiff.

8 On 10 April 2006, a special grant of letters of administration was made to Ms Mey Yeak authorising her to exercise the rights attaching to the shares in the plaintiff held in the name of Mr Jack Yeak until letters of administration were granted. She undertook to maintain all necessary books of account in relation to the businesses operated by her pursuant to the special grant.

9 On 7 March 2006, the defendant required that the butcher's premises be repainted pursuant to cl 19 of the lease. That clause required the lessee at least once during the term of the lease to paint the premises to a standard reasonably required by the lessor.

10 On 23 March 2006, Mr Heness wrote to Mr Ngim Yeak. He said that he was enclosing a standard lease application to be completed for consideration by the lessor, although the form may not have been included with the letter. Be that as it may, at that time it is clear that no commitment had been given by the defendant to enter into a new lease.

11 On 27 March 2006, Mr Ngim Yeak advised that the family did intend to apply for continuation of the leases on the butcher’s shop and newsagency. The lease application form was sent by 3 April 2006.

12 On 18 April 2006, Messrs Watson & Watson, solicitors, who had acted for Ms Mey Yeak on the application for a special grant of letters of administration, wrote to Mr Heness advising him of her appointment. They advised that she was the only person who could speak on behalf of the company and that any dealings in connection with the occupation of the butcher's shop or newsagency should be through her. They enclosed an application by her for renewal of the then current leases.

13 Mr Ngim Yeak deposes that in late April 2006, he had a conversation with Mr Heness to the following effect:

“ In or about late April 2006 I had a conversation with Peter Heness. During this conversation words were said to the following effect:
I said: ‘Our administration is now in place. Can you issue us with the new lease?’
Peter said: ‘Yes, we will do that.’
I said : ‘Can you tell me what the new rent will be?’
Peter said: ‘The rent won’t be the same, it will be increased.’
I said: ‘That’s fine.’
Peter said : ‘You need to paint both shops and repair all the tiles in the butchers [sic] shop. You also need to take off the wall papers off [sic] the newsagent.’
I said : ‘Yes, we will do that.’
Peter said : ‘We want the image of the shops improved.’
I said : ‘Yes, that’s fine. It is in our best interests to do this.’
I said : ‘What about the terms? Can we have 5 [years] by 5 [years]?’
Peter said : ‘We are giving you a 3 by 3.’
I said : ‘Yes, that’s fine. Can you go ahead and organize leases so that we can sign?’”

14 Mr Heness denied that he gave any assurance that the plaintiff would be issued with a new lease. The plaintiff pleaded that this conversation gave rise to a binding agreement for lease. In final submissions that contention was not pressed, and rightly so. On any view, there was no agreement as to the rent for any new lease. The language as deposed to by Mr Yeak was not the language of an immediately binding contract. Moreover, although Ms Mey Yeak had authorised her brother to speak on her behalf, the defendant had not been told he had any authority to do so. Mr Heness could not have considered he was dealing with someone with authority to bind the plaintiff. Nor did he have authority to bind the defendant. There were also unresolved outstanding issues regarding repainting. I accept Mr Heness's denial, but even on Mr Yeak's evidence there was no agreement for lease.

15 On 12 May 2006, Mr Parisi, the solicitor acting on behalf of the defendant, advised Mr Hannah, the solicitor with Watson & Watson, that no new leases of either premises had been formally agreed to at that time.

16 Mr Heness does accept that prior to 9 October 2006, being the date on which the defendant delivered a proposed lease and disclosure statement to the plaintiff, there had been discussions with the plaintiff about a three-year lease with a three-year option at a rent which would be increased from that then being paid.

17 In June 2006, Mr Heness provided a report to the Messrs Medich on an appropriate rent for the butcher’s shop having regard to comparable rents at adjoining premises. The butcher’s shop’s rent was then $2,201.15 per month or $351.86 per square metre. Mr Heness calculated this was well below the rent on a per square metre basis of the surrounding shops. Apart from the newsagency, he calculated that the adjoining rents averaged $514 per square metre.

18 On 12 May 2006, Sydney Water Corporation wrote to Mr Heness advising that the butcher’s shop was operating without a required grease arrestor. Sydney Water required that the defendant install an approved grease arrestor and basket traps in any floor wastes, and that that work be done by 12 July 2006. On 15 May, the defendant wrote to the plaintiff advising of Sydney Water’s requirements. The defendant contended that the works were the lessee’s responsibility pursuant to cl 23 of the lease. That, of course, was a reference to the existing lease which had expired on 30 April 2006, but under which the plaintiff was holding over.

19 Clause 23 did not oblige the plaintiff to do those works, but another clause in the lease, namely cl 3(xv) of memorandum S231984, which was incorporated into the lease, did so. In any event, it was open to the lessor to require the plaintiff to carry out the works if it wanted a new lease. The plaintiffs did not deny that it was liable to carry out the works. However, it took no steps to do so.

20 On 24 July 2006, Sydney Water wrote again to the defendant, noting that the grease trap had not been installed and threatening suspension or cancellation of its commercial trade waste-water permit. On 25 July, Mr Heness wrote to Ms Mey Yeak requiring that the matter be dealt with urgently. He advised that Sydney Water had said that if the order was not complied with, the sewer might be cut off from the main.

21 In September 2006, a nearby butcher’s shop became available for sale at 129 Cabramatta Road, Cabramatta. Mr Ngim Yeak, his sister, Ms Mey Yeak, and their mother, discussed the possibility of purchasing it. Mr Ngim Yeak spoke to the agent and offered $550,000 to buy the property. This was not a formal offer whose acceptance could result in a contract. It was an oral expression of an intention to purchase at that price. However, the next day the offer was withdrawn. This followed discussions between Ms Mey Yeak, Mr Ngim Yeak and their mother. The latter two persuaded Ms Mey Yeak that they could reliably expect to be offered a new three-year lease with a three-year option from the lessor having regard to the length of time they had been in occupation of the premises, having regard also to Mr Ngim Yeak’s having been told that the landlord was preparing a new lease for them, and also having regard to the moneys they had spent on the shop. Mr Yeak says that:

“ Had we known that the landlord would not give us a new lease, as promised, then we would have purchased the shop. ”

22 Even on the plaintiff's evidence, at this time the defendant had not made any commitment to enter into a new lease with the plaintiff. The rent was still to be agreed. In any event, the plaintiff's position ignores the fact that the defendant did propose entry into a new lease. On 9 October 2008, the defendant delivered a lessor's disclosure statement and a proposed lease. The new rent was to be $3,016.22 inclusive of GST. This was a 37 percent increase on the existing rent. The lease was to commence on 1 November 2006. It provided for a three-year term with a three-year option.

23 The documents delivered also included a lessor’s disclosure statement as required by s 11 of the Retail Leases Act 1994 (NSW) and was in the form required by Sch 2 Pt 2 of that Act. The document contained the lessee’s disclosure statement to be completed by the lessee pursuant to s 11A of that Act. On the first page of the lessor's disclosure statement the defendant stipulated:

“ Lessee to

§ Re-Paint [sic] the premises prior to renewal of lease in a proper and workmanlike manner and to reasonable standard in two coats of white acrylic paint to be approved by Lessor.

§ Floor tiles in front of cool room to be replaced with tile of same quality and colour.

§ Broken white wall tiles to be replaced throughout where required with tile of same quality and colour.

§ Install a 1,000 litre Boat Grease Arrestor and Basket Traps in any floor waste to Sydney Water specifications.

§ Replace ceramic tiles to exterior shopfront, sample to be approved by lessor prior to installation.”

24 The enclosed proposed lease did not include provisions imposing the same obligations on the lessee with this specificity, although the requirement to install the grease trap would have been covered by cl 24.1 of the proposed new lease which would have required the lessee to comply with the requirements of any competent authority having authority with respect to the demised premises or the lessee’s use and occupation of the premises.

25 The plaintiff says that the delivery of these documents was an offer to lease the premises on the terms of the enclosed lease. It says that it accepted the offer on 31 January 2007 or on 16 February 2007. I do not agree that the delivery of those documents constituted an offer capable of bringing a contract into existence immediately on acceptance by the plaintiff. The lease document itself was in the usual form and provided for it to be executed by both parties. Nothing in the negotiations suggested that the parties intended to enter into a binding agreement for lease in advance of entering into the lease itself. The defendant required works to be carried out which were not specifically provided for in the lease. Hence it is unlikely that it would have agreed to be bound by an acceptance of the alleged offer if the works had not been done. Moreover, a purpose of the lessee’s disclosure statement is to formalise any representation upon which the lessee relies in entering into the lease. Considered objectively it is most unlikely that the lessor would contemplate the possibility of being bound by an acceptance of the alleged offer without the opportunity to consider the contents of the lessee’s disclosure statement.

26 Although the presumption which applies to contracts for the sale of land that parties do not intend a binding agreement prior to exchange of formal contracts has no "necessary or direct equivalent in relation to leases of land” (Long v Piper [2001] NSWCA 342 at [53]), all the circumstances suggest that the parties intended to be bound only upon execution and exchange of the formal lease document.

27 The plaintiff submitted that the delivery of the documents conveyed a representation that the plaintiff would be given a three-year lease with a three-year option. That is putting things too widely. In my view, the delivery of the documents conveyed a representation that the defendant intended to give the plaintiff a lease on the terms of the enclosed lease document if the works specified in the disclosure statement were carried out, if there were no untoward disclosure made in the lessee’s disclosure statement, and if the plaintiff indicated its acceptance of the terms of the lease by signing and returning the lease. That representation, conveyed by the act of delivering the documents, was not false or misleading. The defendant did intend that if the plaintiff executed and returned the documents unamended within a reasonable time, it would execute the lease also.

28 The plaintiff points to having carried out various works in reliance upon an assumption that it would be given a lease, or that the defendant was already bound to lease the premises to it. It points first to the painting of the premises. The butcher’s shop and the newsagency were painted twice. Pursuant to correspondence in March, the plaintiff painted the butcher’s shop. I infer that that work was done in or about August 2006. The defendant was dissatisfied with the quality of the work. From invoices produced, I infer that the butcher’s shop was repainted in about November 2006. However, the plaintiff was required by the terms of the existing lease to paint the premises as often as the lessor might reasonably require to standards reasonably required by the lessor.

29 Whilst I accept that the plaintiff would not have painted the premises a second time, had it not anticipated receiving a new lease of the premises, I do not consider that conduct to be a relevant act of detrimental reliance because I am not satisfied that it was not, in any event, required to carry out that work.

30 In about September 2006, Mr Yeak engaged the services of a tradesman to replace broken wall tiles in the shop. On 18 October 2006, the plaintiff paid a $1,000 deposit for floor tiles. The entire floor was re-tiled in about April 2007. Mr Heness observed the re-tiling on 17 April 2007. On the following day he wrote to complain that the existing tiling had not been removed. He complained that the plaintiff had failed to contact the defendant to obtain its agreement to the works. By this time the plaintiff had been given notice to quit. The act of laying the floor tiles was not done in reliance on any assumption that the plaintiff would be given a new lease. But the payment of the deposit for the purchase of the tiles on 18 October 2006, and the replacement of broken wall tiles in September 2006, was work which was done in anticipation of such a lease.

31 On or about 23 January 2007, the plaintiff paid a deposit of $1,850 for a new display counter. It is not clear when installation of that counter commenced. There is no evidence that installation commenced prior to 20 February 2008. (The significance of that date will appear shortly.) Also, on or about 23 January 2007, the plaintiff obtained a quote to fix the rails on the existing counter. There is no evidence as to whether this work was carried out and, if so, when.

32 On 8 February 2007, the plaintiff paid a deposit of $1,970 for the supply of a new awning and sign. They have not been installed. I infer that the plaintiff paid the deposits for the tiles for the new display counter and for the new awning because it expected to be given a new lease of the premises.

33 The plaintiff did not install the grease trap as required by the defendant. It was not installed until this year. The installation of the grease trap was required under the existing lease pursuant to which the plaintiff was held over. The plaintiff says that in January 2007 it paid a non-refundable deposit of $3,000 towards the installation of the grease trap. That evidence is hotly in contest. Assuming it to be the fact, such a payment is, in any event, not an act of detrimental reliance on any representation by the defendant that the plaintiff would be given a new lease, because it is something the plaintiff was required to do in any event.

34 Ms Mey Yeak signed the lessee’s disclosure statement on 1 December 2006. At the same time, she amended by hand the lessor's disclosure statement in three respects. The starting date for the lease was amended from 1 November 2006 to 21 December 2006. Had that amendment been accepted, it would have delayed until 21 December 2006, the time from which the increased rent became payable. Curiously, she also amended the commencement of the option period from 1 November 2009 to 21 December 2009 without amending the expiry of the lease period of 31 October 2009. The effect of that change, if given effect, would be to leave an hiatus from 1 November to 21 December 2009 if the option were exercised. Ms Yeak struck out the first bullet point quoted at [23] above because the repainting had already been done.

35 Mr Yeak said that Mr John Medich had agreed to the proposed change to the starting date of the lease. Mr Yeak said that Mr Medich agreed to postpone the commencement of the butcher’s shop lease because he did not want Mr Yeak to bear any ill will towards him owing to what was said to be short notice given to the plaintiff to vacate the newsagency. The plaintiff was required to vacate the newsagency because it decided not to enter into the proffered new lease of the newsagency.

36 Mr Yeak did not give evidence in his affidavit of the alleged agreement by Mr Medich to the postponement of the commencement date of the lease of the butcher’s shop. Mr Medich denied having agreed to such a postponement. I accept that denial. Where the evidence of Mr Yeak and Mr Medich was in conflict I preferred the evidence of Mr Medich.

37 Ms Yeak signed the lease a few weeks after 1 December 2006. The signed lease was never returned to the defendant. Both Ms Yeak and Mr Yeak knew that it was open to the plaintiff to accept the proffered lease or to reject it and vacate the premises. It was also open to them to negotiate for different terms. As I have said, the plaintiff chose not to enter into the proffered lease of the newsagency.

38 Just as the plaintiff understood it was not bound by a lease or an agreement to lease in respect of the butcher’s shop at this time, it likewise understood that the defendant was also not obliged to proceed.

39 On 31 January 2007, the plaintiff's solicitor, Mr Capolupo, wrote to Mr Heness as follows:

“ We refer to previous correspondence in this matter and now enclose Lessor's Disclosure Statement duly executed by our client and amended as follows:-

1. Lease period: 21 December 2006 to 31 October 2009.
Option periods: 21 December 2006 to 31 October 2012

(as agreed between you and our client).

2. Reference to the lessee having to paint the premises has been deleted as this requirement has already been attended to by our client. ”

40 The plaintiff pleaded that by this letter, the plaintiff accepted the offer contained in the documents delivered on 9 October 2006. That contention was not ultimately pressed. For the reasons I have already given, I do not consider that those documents constituted an offer capable of acceptance by correspondence. In any event, the suggested amendment to the commencement date of the lease and option periods was a material change to the documents proposed by the defendant. Even had the defendant made an offer on 9 October 2006, and even if that offer were still open for acceptance on 31 January 2007 notwithstanding that the proposed commencement date of the lease had passed, the letter of 31 January 2007 could not have constituted an acceptance.

41 On 16 February 2007, Mr Capolupo wrote again to Mr Heness. He advised that:

“ ... Our client has executed the lease and we will forward the same to you in the near future.
We have been instructed that you have agreed to accept a reduced rent as follows:-

(a) a reduction of $100.00 per week for the first year of the term; and

(b) the above reduction to be made up by the lessee paying an extra $50.00 per week in addition to the rent during the remaining two (2) years of the term. ”

42 The plaintiff submitted that this letter constituted an acceptance of the offer allegedly made on 9 October 2006. Assuming, contrary to my view, that the delivery of those documents constituted an offer capable of acceptance in this way, I do not consider that the letter of 16 February 2007 was such an acceptance. The lease signed by Ms Yeak was not returned. No explanation was given for this. Given that the plaintiff had proposed amendments, and given that by the letter of 16 February 2007 the plaintiff was asserting that there was an agreement to vary the rent, the defendant would have no way of knowing what amendments, if any, had been made to the lease at the time of its execution by the plaintiff.

43 It may be inferred that the reason the signed lease was not returned was because the plaintiff was hoping to secure the defendant's agreement to vary the provisions as to rent. Whilst Mr Capolupo conveyed his instructions that the defendant had agreed to accept the reduced rent as set out in the letter, it was common ground that no such agreement had been reached. The highest the evidence went was that Mr Yeak deposed that Mr Medich had indicated that the defendant could discount the rent for the first year and recover the discount in the following years. Even on Mr Yeak's version of the conversations, Mr Medich had not agreed to the suggested reduction of $100 per week for the first year of the term to be made up by paying an extra $50 per week during the remaining two years of the term. Mr Yeak's evidence was that Mr Medich told him to put such a proposal in writing. It would be a legitimate matter for concern on the part of the defendant that the plaintiff was asserting that an agreement for the acceptance of a reduced rent had been made when it had not.

44 On 20 February 2007, Mr Parisi replied to Mr Capolupo. He said that on a number of occasions, the defendant had made it clear to the plaintiff that there was no agreement by the defendant to amendments to the commencement dates for the lease and option, or to the reduction in rent, and that the defendant had not accepted the deletion of the requirement to repainting. Mr Parisi wrote:

“ The amendments to documents, the proposal for rent reductions and the suggestion for the deletion of the requirement to re-paint are regarded by my client as counter offers that have revoked any previous offer to lease by my client.

My client is in the process of negotiation with potential lessees for the premises and your client may care to submit a detailed formal offer to my client for consideration.
Should they choose to do so they should formalise and submit that offer as soon as possible as my clients wish to finalise the leasing arrangements for this property promptly. ”

45 It was submitted for the plaintiff that this letter contained an admission that a previous offer for lease had been made by the defendant which was capable of acceptance. Even if the letter conveyed such an admission, such an admission would carry no weight as the question is one of law. Be that as it may, I do not consider that any such admission was made. Mr Parisi referred to "any" previous offer. He did not himself characterise the previous correspondence as an offer of lease. From the date of this letter, the plaintiff was very clearly on notice that the defendant did not consider itself bound, and that if it wished to obtain a new lease for the premises it needed to submit an offer promptly.

46 After some further correspondence between the solicitors, Mr Capolupo wrote again on 6 March 2007 advising that the plaintiff wished to proceed with the lease "under the terms of the Disclosure Statement which has been executed by them”. The reference to that disclosure statement was presumably to the document with the amendments made by Ms Yeak. The defendant was not obliged to proceed on that basis. It had not accepted those terms.

47 As I have said, on 3 April 2007, the defendant gave notice to quit. At no time up to this point had the plaintiff paid the higher amount of rent stipulated in the new lease document. The plaintiff’s conduct is inconsistent with a belief that there was a binding agreement for lease in terms of that document, or on the terms of the amended disclosure statement.

48 It was also submitted for the plaintiff that there had been acts of part performance of the alleged agreement for lease. This contention would have been misconceived as the defendant had not pleaded s 54A of the Conveyancing Act 1919 (NSW) as a defence to a claim to enforce the alleged agreement for lease. However, it emerged during the course of submissions that the plaintiff was in fact contending that the documents delivered on 9 October 2006 constituted a unilateral offer capable of acceptance through performance of the works required by the disclosure statement. Counsel referred to Veivers v Cordingley [1989] 2 Qd R 278 in which McPherson J said (at 297-298) that:

“ … although as a general rule an offer may be retracted before acceptance, yet, if it takes the form of an offer in exchange for the doing of an act or acts, then: (1) acceptance takes place when the offeree ‘elects’ to do the relevant act or acts; and (2) the offer becomes irrevocable once the act or acts, which will constitute consideration for the offer, have been partly performed. ”

49 Counsel submitted that there had been part performance of the acts required by the alleged offer contained in the disclosure statement. It will be evident from what I have said already that I do not consider that the disclosure statement was a unilateral offer capable of acceptance by the doing of any relevant act or acts. For the reasons I have given, I consider that, objectively ascertained, the parties’ intentions were to be bound by the leases only upon its execution and exchange of counterparts. In any event, even if that is incorrect, I do not regard the disclosure statement as being a unilateral offer. The disclosure statement was served in compliance with s 11 of the Retail Leases Act. It does not take the form of an offer capable of acceptance by performance of the acts which the lessor required to be carried out, or otherwise.

50 For these reasons I reject the plaintiff's contention that an agreement for lease was concluded.

51 I have already set out what I consider to be the representation conveyed by the defendant through the delivery of the documents on 9 October 2007. I do not accept that any statement made on behalf of the defendant conveyed any wider or more definite representation as to the defendant's intentions to enter into a lease with the plaintiff.

52 I have also set out earlier in these reasons what I consider to be acts to which the plaintiff might point as being acts taken to its detriment in reliance on an assumption that it would be given a lease. I do not accept that it assumed that the defendant was already bound by an agreement for lease. Nor do I accept that it assumed that the defendant was legally obliged to enter into a new lease. If the moneys expended were sufficient acts of detrimental reliance, it would be out of all proportion to hold the defendant to the assumption that the plaintiff would be given a new lease for a three-year term with a three-year option. Equity would be done by paying compensation for the moneys so expended.

53 For the reasons I gave in EK Nominees Pty Limited v Woolworths Ltd [2006] NSWSC 1172 at [231]-[267], I consider that it is possible for a person to be estopped from departing from an assumption it has induced the other to adopt that a legal relationship will be entered into, even if the latter person does not believe that the former is legally obliged to proceed. Here the acts of detrimental reliance are minimal and if it were otherwise unconscientious for the defendant to refuse to enter into the lease, it would be compensated for by money. But, in my view, it is not unconscientious for the defendant to have refused, or now to refuse, to enter into the lease with the plaintiff. The defendant offered the plaintiff a lease. It was not bound to offer better terms than it did. The plaintiff sought to negotiate better terms. It must have appreciated that there was a risk that the defendant would lose patience or otherwise decline to proceed. That is so a fortiori where the plaintiff asserted that agreements had been made as to rent when they had not. The defendant was perfectly entitled to say that it did not wish to enter into an engagement with the plaintiff.

54 The plaintiff accepted the risk when it expended such moneys as it did, that the defendant might not proceed to enter into a lease with it. The defendant's refusal to enter into a lease with the plaintiff was based on a bona fide disagreement as to the terms of the lease to be entered into. The plaintiff accepted the risk that the defendant would not proceed for such a reason.

55 For these reasons, I conclude that the plaintiff's claim based on estoppel fails.

56 For the same reasons, I find that the defendant did not engage in misleading or deceptive conduct and did not make a false or misleading representation in connection with the possible grant of an interest in land. It is unnecessary to consider whether any of the particular matters in s 53A(1)(b) of the Trade Practices Act would be engaged in any event.

57 I should add that, had I taken a different view as to the defendant’s alleged liability for contravention of ss 52 and 53A of the Trade Practices Act, I would not in any event have made the orders sought under s 87 of that Act. The relevant loss or damage which the plaintiff would have suffered would be the moneys which it expended, not the loss of the lease.

58 For these reasons, there will be judgment for the defendant on the statement of claim. The defendant is entitled to an order for possession.

[Counsel addressed on costs.]

59 The defendant seeks an order for indemnity costs based on a Calderbank offer made on 30 November 2007. The defendant's solicitor asserted that the plaintiff's case was hopeless because facts asserted by Mr Yeak had been found to be "unreliable, inaccurate or untrue". I infer that this primarily refers to the question with which I have not found it necessary to deal in the judgment I have just given, namely, whether Mr Yeak paid a cash deposit of $3,000 in January 2007 as a non-refundable payment for the installation of the grease trap. I said that that was a matter hotly in contest. Mr Yeak said that he paid the moneys to Western District Plumbing Pty Limited, a company whose principal is Mr Volpe. In his second affidavit of 26 July 2007, Mr Yeak attached a "copy of receipt from Western District Plumbing Pty Limited dated 15 January 2007". That document was addressed "To Whom It May Concern" and recorded receipt of $3,000 as a non-refundable deposit for the purchase and installation of the grease trap. Mr Volpe swore an affidavit in December 2007 after having been subpoenaed in which he said that that document was false and had been given to Mr Yeak at Mr Yeak's request because Mr Yeak said he needed a letter for some issues with the renewal of the butcher’s shop lease. He said that Mr Yeak asked him to backdate the letter. He denied being paid any money.

60 Mr Yeak maintained that, in conversations with Mr Volpe, Mr Volpe admitted to being under pressure from the Medich family. It was quite clear that either Mr Yeak was telling lies in his affidavits and, in particular, in his last affidavit, or Mr Volpe was telling lies in his affidavit. A finding about who was telling the truth on this matter would involve serious questions and such a finding would need to meet the standards for such a serious finding in Briginshaw v Briginshaw (1938) 60 CLR 336. Having heard both gentlemen, and considered the objective probabilities of the matter, I am left in a state of doubt as to which of them is telling the truth on that matter, such that I do not consider I could properly form a view as to which of them was telling the truth. In the circumstances, it was unnecessary for me to make any concluded finding on that question.

61 Accordingly, the principal basis on which I infer the defendant's solicitor contended that the plaintiff's case was hopeless is not one which I have upheld. Having said that, it does appear to me that the plaintiff's case was weak.

62 I accept that the offer contained in the letter of 30 November 2007 when read with the orders of 3 May 2007 conveys some element of compromise, in that it was an offer that the plaintiff be permitted to remain in the premises up to 1 February 2008 and be relieved from paying the occupation fee which was payable under the orders of 3 May 2007 until then. In effect, the plaintiff was offered two months of free occupation of the premises. The letter also conveyed an offer of a discount of 30 percent from, I infer, the defendant’s costs as assessed on a party and party basis. Accordingly, I accept that the letter qualifies as a Calderbank offer. It was open for acceptance for one week.

63 There is no presumption that the defendant should have its costs on an indemnity basis from the date of the letter, as there would be had the defendant made an offer of compromise in accordance with the Uniform Civil Procedure Rules. The question is whether the plaintiff acted unreasonably in not accepting the offer. That question really turns on how the plaintiff, through its legal advisers, ought to have assessed the strength of its case.

64 In my view, the plaintiff ought to have assessed its case as weak and likely to fail. I should have thought that the contention that there was a binding contract was scarcely arguable, but for the valiant efforts of Mr Sneddon of counsel to argue it. The claim based on estoppel was more problematic, but the plaintiff faced the very real difficulty that the defendant proffered a three-year lease with a three-year option, but it never returned the document and instead sought amendments to it. In those circumstances, the claim based on estoppel was, to say the least, fraught with difficulty.

65 In those circumstances, I consider that the plaintiff's failure to accept the compromise offered on 30 November 2007 was unreasonable, and that the plaintiff should pay the defendant’s costs on the indemnity basis from 7 December 2008.

66 For these reasons I make the following orders:

1. Judgment for the defendant on the plaintiff's further amended statement of claim;

2. Judgment for the defendant/cross-claimant for possession of the land, being a lock-up shop known as 94 Broomfield St, Cabramatta, NSW being part of the land described in certificate of title Auto Consul 14336-119;

3. Grant leave to the cross-claimant to file a writ of possession forthwith;

4. On condition that the plaintiff continue to pay an occupation fee of $3,666 per month including GST up to and including 5 September 2008, order that execution of the writ of possession be stayed until 6 September 2008;

5. Order that order 1 made on 3 May 2007 be discharged;

6. Direct that any application to enforce the plaintiff's undertaking as to damages be made by notice of motion, and refer any such application to an associate judge for determination;

7. Order that the plaintiff pay the defendant's costs of the proceedings, and that such costs be assessed on the party and party basis up to and including Friday, 6 December 2007 and on the indemnity basis from 7 December 2007;

8. Exhibits may be returned after 28 days, save that exhibit C is to be returned to the plaintiff forthwith on the plaintiff's undertaking to retain the exhibit for at least 28 days and then, if an appeal is filed, to retain the exhibit until the determination of any appeal.

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