Applicant v Respondent

JUDICIAL REVIEW - Non-applicability of Notice of Contention procedure - Victorian Civil and Administrative Tribunal Act 1998, s 148 - Supreme Court (General Civil Procedure) Rules 2015.

1 This proceeding has been brought pursuant to s 148(2) of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). The Applicant, Pin Oak Holdings Pty Ltd (ACN 006 304 710), is seeking to appeal an order of the Victorian Civil and Administrative Tribunal ("the Tribunal" or "VCAT") constituted by Senior Member Walker made on 4 July 2016 in proceeding number BP260/2016.[1]

2 The Applicant is the registered proprietor of the land known as 28 to 30 Young Street, Moonee Ponds, Victoria ("the Premises"). The Premises is a multi-story building and in November 2002, the Applicant leased part of the ground floor to the Respondent ("the Lease"). The Tenant entered into possession of the Premises under the Lease on 23 November 2002. The Lease, as renewed, was to expire on 22 November 2017.

3 The Respondent conducts a restaurant business from the Premises.

4 Broadly speaking, the substance of the legal issues before VCAT was the existence of a new lease that included two options to renew and the extent and the basis upon which the Respondent relied on any entitlement to that additional lease in undertaking renovations at the Premises to the extent of $114,613.36.

5 In the interests of expedition and economy in terms of time and cost, this proceeding was heard as a combined or "rolled up"[2] application for leave to appeal the Tribunal decision and, if leave were to be granted, the hearing of the appeal itself.

A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding -

(a) if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or

(b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

It follows from this provision that any appeal is dependent upon two important qualifications. First, that the appeal be on a question of law, and secondly, that the Court gives leave to appeal. The legislative policy underlying these provisions is that "VCAT decisions should not generally be disturbed where cases have been decided in that forum other than on questions of law and where there is something about the decision bearing upon the question of law which warrants a grant of leave to appeal."[3] It follows that "[t]his Court is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist tribunal."[4]

7 The leave requirement under s 148(1) of the VCAT Act is designed to maintain this position. As Pagone J said in Commissioner of State Revenue v Frost:[5]

The requirement for leave under s 148(1) of the VCAT Act "is a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the Court do found the subject matter of the appeal".[6] It also confers a discretion about whether to grant leave[7] which an applicant must persuade the Court to exercise in its favour. What must be shown will depend upon the particular case bearing in mind the statutory criteria being a grant of leave and not special leave.[8] It will ordinarily be necessary (in addition to a clearly articulated question of law)[9] for an applicant to make out a prima facie case[10] and in an appropriate case it may be necessary for the applicant to show that the question upon which leave is sought has public or general importance.[11]

8 In considering an application of this nature, courts have been concerned to respect the role entrusted by the legislature to the particular tribunal and not, in effect, subvert this position by seeking out error. Thus, Kirby J in Roncevich v Repatriation Commission said:[12]

Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons.[13] The focus of attention is on the substance of the decision and whether it has addressed the "real issue" presented by the contest between the parties.

Similarly, in Vegas Nominees Pty Ltd v Werribee Sports & Community Club Inc, Ashley J said:[14]

This Court has said more than once that it should not examine briefly stated reasons by an expert Tribunal in an over-legalistic manner or by the over-zealous drawing of inferences in order to disclose some supposed error; although where unambiguous language is used, the user should be taken to mean what the words say. I should add that the Court is not entitled to interfere with the Tribunal's decision unless it is satisfied that there was in fact a vitiating error of law. It is not enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that it proceeded upon a wrong view of the law. In support of the several propositions that I have just stated I refer to Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works,[15] Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works[16] and Teston Investments Pty Ltd v Melbourne & Metropolitan Board of Works.[17]

Additionally, "[o]n appeal this Court must recognise the forensic realities of the way in which the case was put to the Tribunal. It is these realities to which a Tribunal must respond in its reasons."[18]

9 In terms of the party's submissions, it is clear from the authorities to which reference has been made that the role of a specialist tribunal, such as VCAT, is not to be usurped by the Court and that a decision of such a tribunal is not to be interfered with absent a vitiating error of law.

10 For the reasons which follow, I am satisfied that the Applicant has both established a question of law which warrants the grant of leave to appeal and, further, has been successful in this appeal. Were this simply an application for leave to appeal, I would, on the material to which reference has been made in these reasons, find that the Applicant has established the "justice of the case" as discussed in Secretary of the Department of Premier and Cabinet v Hulls,[19] and that leave to appeal should be granted.

11 The Originating Motion between the parties filed on 1 August 2016 identifies the orders sought in the following terms:

1. Should leave to appeal be granted, orders pursuant to s.148(7) of the VCAT Act:

1. That the appeal be allowed, and the Tribunal's Orders be set aside. 2. That the proceeding be remitted to a differently constituted Tribunal for rehearing.

1. Alternatively to (b), that the Applicant be ordered to pay the Respondent $114,613.36 plus interest, and the application to the Tribunal otherwise be dismissed.
2. An order that the Respondent pay the costs of this proceeding
3. Such other order as the Court deems appropriate.

12 The Proposed Notice of Appeal which is exhibited to the Affidavit sworn by Mr Charlie Lastrina ("Lastrina") on 1 August 2016 identified the relevant questions of law and the grounds of appeal in the following terms:

1. Whether VCAT erred by finding at paragraph 34 of its reasons dated 4 July 2016 ("the Reasons") that the restaurant ("the Restaurant") operated by the Respondent from the leased premises at 28 to 30 Young Street, Moonee Ponds ("the Premises") remained closed and shuttered during the period from March to August 2015 ("the Closure Finding") when there was no evidence before VCAT to support this finding, and the finding was not therefore open to VCAT.
2. Whether VCAT erred by finding at paragraph 35 of the Reasons that the Applicant's director, Charlie Lastrina ("Lastrina"), was aware that the Restaurant was closed for a considerable period of time during the renovations ("Renovations") with the front being shuttered ("the Knowledge Finding"), in circumstances where:

1. There was no evidence before VCAT to support the Knowledge Finding, and the finding was not therefore open to VCAT; and/or 2. Further or alternatively, the Knowledge Finding was evidently derived from, or influenced by, the Closure Finding; and

1. The Closure Finding was not itself open to VCAT as there was no evidence before VCAT to support that finding; and

1. The Closure Finding was accordingly an irrelevant consideration to which VCAT ought to have had no regard when making the relevant finding at paragraph 35.
2. Whether VCAT erred by finding at paragraph 37 of the Reasons that it would have been apparent to Lastrina that the scope of the work for the Renovations was to be substantial and would cost a substantial amount of money to carry out, both in terms of the cost of construction and the loss of income while the work was done, in circumstances where:

1. The finding was evidently derived from, or influenced by, the Closure Finding and/or the Knowledge Finding; and 2. The Knowledge Finding and Closure Finding were not themselves open to VCAT as there was no evidence before VCAT to support those findings; and

1. The Knowledge Finding and Closure Finding were accordingly irrelevant considerations to which VCAT ought to have had no regard when making the relevant finding at paragraph 37.
2. Whether VCAT erred by finding at paragraph 66 of the Reasons that Lastrina knew the Respondent was expending a large sum of money on extensive renovations to the Premises and was foregoing any income from the restaurant business for the period of the renovations, in circumstances where:

1. The finding was evidently derived from, or influenced by, the Closure Finding and/or the Knowledge Finding; and 2. The Knowledge Finding and Closure Finding were not themselves open to VCAT as there was no evidence before VCAT to support those findings; and

1. The Knowledge Finding and Closure Finding were accordingly irrelevant considerations to which VCAT ought to have had no regard when making the relevant finding at paragraph 66.
2. Whether VCAT erred by finding at paragraph 79 of the Reasons that the Respondent had been induced to deprive herself of income for several months, in circumstances where:

1. There was no evidence before VCAT to support that finding, and the finding was not therefore open to VCAT; and/or 2. Further or alternatively, the finding was evidently derived from, or influenced by, the Closure Finding and/or the Knowledge Finding; and

1. The Knowledge Finding and Closure Finding were not themselves open to VCAT as there was no evidence before VCAT to support those findings; and

1. The Knowledge Finding and Closure Finding were accordingly irrelevant considerations to which VCAT ought to have had no regard when making the relevant finding at paragraph 79.
2. Whether VCAT erred by finding at paragraph 79 of the Reasons that the Applicant had forgone the opportunity to establish a business elsewhere and to invest time and money in establishing a goodwill in premises where the Applicant had security of tenue ("the Forgone Opportunity Finding"), in circumstances where:
   1. VCAT held at paragraph 14 of the Reasons that the Respondent had renewed her existing lease until 23 November 2017, and the Respondent therefore did not have the opportunity to vacate the Premises and establish a business elsewhere, as she was committed to remain at the Premises pursuant to a binding agreement for lease; and
   2. There was accordingly no evidence before VCAT to support the Forgone Opportunity Finding, and that finding was not therefore open to VCAT.
3. Whether VCAT erred by finding at paragraph 81 of the Reasons that the Respondent had gone without several months of income, in circumstances where:

1. There was no evidence before VCAT to support that finding, and the finding was not therefore open to VCAT; and/or 2. Further or alternatively, the finding was evidently derived from, or influenced by, the Closure Finding; and

1. The Closure Finding was not itself open to VCAT as there was no evidence before VCAT to support that finding; and

1. The Closure Finding was accordingly an irrelevant consideration to which VCAT ought to have had no regard when making the relevant finding at paragraph 81.
2. Whether VCAT erred by finding at paragraph 82 of the Reasons that to fully compensate the Respondent for the inequitable situation that the Applicant had created it was necessary to direct the Applicant to grant the lease that it agreed to grant, in circumstances where:

1. The finding was evidently derived from, or influenced by, the Closure Finding and/or the Knowledge Finding; and 2. The Knowledge Finding and Closure Finding were not themselves open to VCAT as there was no evidence before VCAT to support those findings; and

1. The Knowledge Finding and Closure Finding were accordingly irrelevant considerations to which VCAT ought to have had no regard when making the relevant finding at paragraph 82; and/or

1. Further or alternatively, the finding was evidently derived from, or influenced by, the Forgone Opportunity Finding; and 2. The Foregone Opportunity Finding was not itself open to VCAT as there was no evidence before VCAT to support that finding; and 3. The Foregone Opportunity Finding was accordingly an irrelevant consideration to which VCAT ought to have had no regard when making the relevant finding at paragraph 82; and/or 4. Further or alternatively, an award of equitable compensation in the sum of $114,613.36 plus interest would have been sufficient to ameliorate any inequity to the Respondent flowing from an unconscionable conduct by the Applicant.

1. VCAT erred by finding at paragraph 34 of its reasons dated 4 July 2016 ("the Reasons") that the restaurant ("the Restaurant") operated by the Respondent from the leased premises at 28 to 30 Young Street, Moonee Ponds ("the Premises") remained closed and shuttered during the period from March to August 2015 ("the Closure Finding") when there was no evidence before VCAT to support this finding, and the finding was not therefore open to VCAT.
2. VCAT erred by finding at paragraph 35 of the Reasons that the Applicant's director, Charlie Lastrina ("Lastrina"), was aware that the Restaurant was closed for a considerable period of time during the renovations ("Renovations") with the front being shuttered ("the Knowledge Finding"), in circumstances where:

1. There was no evidence before VCAT to support the Knowledge Finding, and the finding was not therefore open to VCAT; and/or 2. Further or alternatively, the Knowledge Finding was evidently derived from, or influenced by, the Closure Finding; and

1. The Closure Finding was not itself open to VCAT as there was no evidence before VCAT to support that finding; and

1. The Closure Finding was accordingly an irrelevant consideration to which VCAT ought to have had no regard when making the relevant finding at paragraph 35.
2. VCAT erred by finding at paragraph 37 of the Reasons that it would have been apparent to Lastrina that the scope of the work for the Renovations was to be substantial and would cost a substantial amount of money to carry out, both in terms of the cost of construction and the loss of income while the work was done, in circumstances where:

1. The finding was evidently derived from, or influenced by, the Closure Finding and/or the Knowledge Finding; and 2. The Knowledge Finding and Closure Finding were not themselves open to VCAT as there was no evidence before VCAT to support those findings; and

1. The Knowledge Finding and Closure Finding were accordingly irrelevant considerations to which VCAT ought to have had no regard when making the relevant finding at paragraph 37.
2. VCAT erred by finding at paragraph 66 of the Reasons that Lastrina knew the Respondent was expending a large sum of money on extensive renovations to the Premises and was foregoing any income from the restaurant business for the period of the renovations, in circumstances where:

1. The finding was evidently derived from, or influenced by, the Closure Finding and/or the Knowledge Finding; and 2. The Knowledge Finding and Closure Finding were not themselves open to VCAT as there was no evidence before VCAT to support those findings; and

1. The Knowledge Finding and Closure Finding were accordingly irrelevant considerations to which VCAT ought to have had no regard when making the relevant finding at paragraph 66.
2. VCAT erred by finding at paragraph 79 of the Reasons that the Respondent had been induced to deprive herself of income for several months, in circumstances where:

1. There was no evidence before VCAT to support that finding, and the finding was not therefore open to VCAT; and/or 2. Further or alternatively, the finding was evidently derived from, or influenced by, the Closure Finding and/or the Knowledge Finding; and

1. The Knowledge Finding and Closure Finding were not themselves open to VCAT as there was no evidence before VCAT to support those findings; and

1. The Knowledge Finding and Closure Finding were accordingly irrelevant considerations to which VCAT ought to have had no regard when making the relevant finding at paragraph 79.
2. VCAT erred by finding at paragraph 79 of the Reasons that the Applicant had forgone the opportunity to establish a business elsewhere and to invest time and money in establishing a goodwill in premises where the Applicant had security of tenue ("the Forgone Opportunity Finding"), in circumstances where:
   1. VCAT held at paragraph 14 of the Reasons that the Respondent had renewed her existing lease until 23 November 2017, and the Respondent therefore did not have the opportunity to vacate the Premises and establish a business elsewhere, as she was committed to remain at the Premises pursuant to a binding agreement for lease; and
   2. There was accordingly no evidence before VCAT to support the Forgone Opportunity Finding, and that finding was not therefore open to VCAT.
3. VCAT erred by finding at paragraph 81 of the Reasons that the Respondent had gone without several months of income, in circumstances where:

1. There was no evidence before VCAT to support that finding, and the finding was not therefore open to VCAT; and/or 2. Further or alternatively, the finding was evidently derived from, or influenced by, the Closure Finding; and

1. The Closure Finding was not itself open to VCAT as there was no evidence before VCAT to support that finding; and

1. The Closure Finding was accordingly an irrelevant consideration to which VCAT ought to have had no regard when making the relevant finding at paragraph 81.
2. VCAT erred by finding at paragraph 82 of the Reasons that to fully compensate the Respondent for the inequitable situation that the Applicant had created it was necessary to direct the Applicant to grant the lease that it agreed to grant, in circumstances where:

1. The finding was evidently derived from, or influenced by, the Closure Finding and/or the Knowledge Finding; and 2. The Knowledge Finding and Closure Finding were not themselves open to VCAT as there was no evidence before VCAT to support those findings; and

1. The Knowledge Finding and Closure Finding were accordingly irrelevant considerations to which VCAT ought to have had no regard when making the relevant finding at paragraph 82; and/or

1. Further or alternatively, the finding was evidently derived from, or influenced by, the Forgone Opportunity Finding; and 2. The Foregone Opportunity Finding was not itself open to VCAT as there was no evidence before VCAT to support that finding; and 3. The Foregone Opportunity Finding was accordingly an irrelevant consideration to which VCAT ought to have had no regard when making the relevant finding at paragraph 82; and/or 4. Further or alternatively, an award of equitable compensation in the sum of $114,613.36 plus interest would have been sufficient to ameliorate any inequity to the Respondent flowing from an unconscionable conduct by the Applicant.

13 As will be seen from the Originating Motion between parties, the Applicant seeks an order from this Court pursuant to s 148(7) of the VCAT Act; that is, that the Tribunal's order be set aside and that the proceeding either be remitted to a differently constituted Tribunal for rehearing or alternatively that the Applicant be ordered to pay the Respondent $114,613.36 plus interest, and that the application to the Tribunal otherwise be dismissed.

14 On 4 September 2014, the Respondent's solicitor sent an email to Lastrina which stated: [20]

We understand that you have agreed to grant a new lease for a period of three years with two further options of five years with a commencing rental of $4,828.95 plus GST plus outgoings with an increase of 3% yearly, the first increase to be effected November this year. We also confirmed that the tenant will pay or reimburse 50% of water usage.

I confirm the amounts and conditions for a new lease as per your email.

15 In the Tribunal, the Respondent argued that these communications gave rise to a lease or agreement to lease on the terms set out in the 4 September 2014 email. The Tribunal found that the Applicant had not granted an oral lease on the terms indicated in these communications or at all for the purposes of s 54(2) of the Property Law Act 1958.

16 The Tribunal further found that no agreement to lease had been concluded, and that any such agreement would have been unenforceable by virtue of s 126(1) of the Instruments Act 1958. According to the Tribunal, this was because the emails did not stipulate the commencement date of the lease,[22] and it was impossible to conclude from the evidence that any commencement date had in fact been agreed by the parties.[23]

17 The finding regarding the existence of the additional lease has not been appealed by the Applicant. I note that the Respondent did, nevertheless, in its Outline of Submissions attempt to revisit the issue and appeared to seek that the finding be overturned.[24] Nevertheless a cross-appeal has not been filed in this proceeding and this issue was not sought to be pressed, so is not taken any further in these proceedings. This position is not, for the reasons which follow, affected by the Respondent's purported Notice of Contention.

18 The Tribunal did, however, uphold the Respondent's alternative argument founded on estoppel. The Tribunal concluded that in early December 2014, Lastrina attended the Premises and gave the Respondent's director, Maria Tuminello ("Tuminello") two copies of a form of lease ("the Proposed New Lease") and disclosure statement for signing.[25] The Proposed New Lease was for a term of three years commencing 1 November 2014, with options for two further terms of five years each.[26] Tuminello signed and returned the Proposed New Lease to the Applicant's solicitors,[27] but the Applicant never signed and exchanged the document.

19 VCAT found that the Tenant expended $114,613.36 on renovations to the Premises between March and August 2015. The Tribunal held that Lastrina had "induced Miss Tuminello, on behalf of the Applicant, to make an assumption" that she had a new lease, and that the renovations were carried out by the Tenant in reliance on this assumption.[28] On this basis the Tribunal upheld the estoppel claim, stating:[29]

Mr Lastrina became aware that Miss Tuminello believed that she had the benefit of the lease and knew that, on the faith of that assumption, she was causing the Applicant to expend a large sum of money on extensive renovations to the Premises and to forego any income from the restaurant business for the period of the renovations. In these circumstances, he was under a duty to correct her mistaken assumption but he did not do so. By not doing so Mr Lastrina has caused the Applicant to act to its detriment on the basis of the assumption that he induced. It would be unfair and unjust to allow the Respondent to ignore his conduct and its consequences_._

20 The Tribunal ordered the Applicant to execute the Proposed New Lease,[30] holding that the reimbursement of the expenses of the renovation would be an inadequate remedy that would not compensate the Respondent for the detriment it had suffered by relying on the assumption induced by the Applicant.[31]

21 In Rugolino v Howard,[32] Bell J set out the principles which the Court applies in the exercise of its appellate jurisdiction in relation to findings of fact. As the Tribunal is not bound by the rules of evidence and can base its findings on any probative material, those principles apply equally here.[33] The principles may be summarised as follows:

(a) the question whether there is any evidence of a particular fact is a question of law. Therefore, a finding of fact is open to challenge as erroneous in law, but only if there is no probative evidence to support it;[34]

(b) the question is not whether the finding was 'reasonably open', for that implies the appeal court could test the finding against a reasonableness standard. The question is whether the finding was open at all.[35] Put another way, there is no error of law unless it can be shown that there was no evidence to support the finding;[36] and

(c) whether a finding is open on the evidence, or whether there is any or some evidence to support it, are different ways of expressing the same test.[37]

22 With respect to the first ground of appeal and the Closure Finding, the Applicant submits that there was no evidence before the Tribunal to support the "Closure Finding" - that "between March 2015 and August 2015...the Restaurant remained closed and according to Mr Lastrina, the front was shuttered".[38]

23 Tuminello gave oral evidence at the hearing in the Tribunal and stated:[39]

I think I did the lights in February and then - the lights I changed in February, and then we closed on 31 May and did the full reno two weeks into June, so 1 June to 14 June.

24 The evidence given by Tuminello as to the closure was corroborated by Lastrina when he was asked about the works he observed at the Premises:[40]

I saw the works when first the tiling took place and that was closed for a period of two weeks.

25 When put to Lastrina that the works did not all happened at one time, he replied:[41] "It happened in two weeks".

26 At no time during the Tribunal hearing or the hearing of the appeal was any evidence given by any witness that the Premises had been closed for the period of March to August 2015. In fact, during the hearing of the appeal counsel for the Respondent accepted that the longest period of closure that was open to the Tribunal was a period of four weeks due to possible confusion between the evidence of Tuminello and Lastrina.

27 For these reasons, I do not accept the Respondent's submissions that the vitiating error was not an integral part of the case or an error which vitiated in the reasoning process of the Tribunal. Nor do I accept the Respondent's submission that the Closure Finding is in no way integral in the estoppel case which will be dealt with later in my reasons.

28 In my view the Closure Finding was of critical importance to the reasoning and conclusions that followed. This vitiating error compromised the fairness of the hearing received by the Applicant.

29 The second ground of appeal which is referred to as the "Knowledge Finding" is based on paragraph 35 of the Reasons:[42]

He was also aware that the restaurant was closed for a considerable period of time during the renovations with the front being shuttered...

30 The Applicant submits that there was simply no evidence to support the Knowledge Finding. Further, the Applicant submits that as the Closure Finding at paragraph 34 immediately precedes the Knowledge Finding, it is clear from the Reasons that the Knowledge Finding was informed by the Closure Finding.

31 Immediately following the Knowledge Finding, the Tribunal continued:[43]

Quite obviously, the restaurant was not open for business and the Applicant was receiving no income from it. Mr Lastrina's office was in the same building and he would have seen what was taking place.

32 Had the Restaurant in fact been closed from March to August 2015, the Tribunal would have been correct in this respect. However as has already been agreed by the parties, and as is clear from the evidence which was before the Tribunal, the Restaurant was not closed for that time. On Tuminello's own evidence in the Tribunal and Mr Isles' agreement at the hearing of the appeal, the Restaurant was not closed for any more than a potential period of four weeks - likely two weeks given the evidence of Tuminello herself.

33 As such, there was no evidence to support the Knowledge Finding. The Applicant submits - as I accept - that this finding is critical as it laid part of the foundation for subsequent findings that Lastrina was aware that substantial renovations were taking place at the premises.

34 For these reasons, I find that the Tribunal misconstrued the evidence and reached the erroneous conclusion that the Restaurant had been shut for a period that was grossly in excess of the actual period of closure thus affecting subsequent reasoning and findings, which are further grounds in the appeal.

35 Grounds Three and Four are closely related, and have been conveniently considered together.

36 The Applicant submits that both findings were to a significant degree extrapolated from the Closure Finding and the Knowledge Finding considered above. Paragraph 37 of the Reasons is as follows:[44]

I am satisfied that it would have been apparent to Mr Lastrina from what he was told and from what he saw, that the scope of work was to be substantial and as a businessman he must have known that it would cost the Applicant a substantial amount of money to carry it out, both in terms of the cost of construction and the loss of income while the work was done.

37 The finding at paragraph 66 of the Reasons is almost identical in its terms:[45]

Mr Lastrina became aware that Miss Tuminello believed that she had the benefit of the lease and knew that, on the faith of that assumption, she was causing the Applicant to expend a large sum of money on extensive renovations to the Premises and to forgo any income from the restaurant business for the period of the renovations.

38 It is submitted by the Applicant, and I agree, that the finding at paragraph 37 of the Tribunal's Reasons is a conclusion with no apparent reference to evidence or evidence based reasoning with respect to the value of the works. Moreover, this conclusion, thus afflicted with no basis, is repeated in the Reason's for the purpose of dealing with the estoppel claim in particular at paragraph 66.

39 It was conceded by the Applicant that had the Restaurant been closed for a lengthy period such as six months, the extended closure would have been obvious to Mr Lastrina and caused him to enquire further regarding the extent of the renovations being undertaken by the Respondent and the potential loss of income stemming from such a closure.

40 This was not the case however as explained in my assessment of grounds one and two in these reasons.

41 Thus the Tribunal's reliance on the Closure Finding and the Knowledge Finding to reason that the real potential for loss of income ought to have been obvious to Mr Lastrina cannot be accepted. It simply has no basis in the evidence before the Tribunal.

42 The compound nature of this error is evident when considering the remaining evidence relied upon in support of the finding that Lastrina was aware that significant and expensive renovations were taking place. The evidence consisted of oral descriptions that Tuminello supposedly gave to Lastrina as to the scope of the proposed works. It is submitted by the Applicant that those descriptions were vague and could not have given the impression that any major renovations would be occurring at significant expense to the Respondent.

43 The evidence adduced in the Tribunal by Tuminello is as follows:

MR ISLES: Paragraph 21 he (Mr Lastrina) says, "Further in paragraph 15 of Ms Tuminello's affidavit she alleges that the renovations were approved by Charlie Lastrina. I do not know exactly what renovations Ms Tuminello was referring to. At no stage did Ms Tuminello advise me of the extent of the alleged renovations that were carried out or their costs." What do you say about that?---Well, there was nothing in writing but we did discuss it.

SENIOR MEMBER: Do you remember telling him how much you were going to spend?---No, I didn't tell him how much I was going to spend because I didn't know how much it was going to cost me.

SENIOR MEMBER: Did you tell him what you were going to do?---Yes, I did. I said to him I'm going to change the floors, I'm going to tile the walls, the bars and build a pizza area at the back.

44 Further enquiry by the Tribunal Member led to further explanation by Tuminello as to the type of pizza oven and it ultimately being described as "well, it's not a wood oven, it's electric, so it sits up on a bench and we built around that a new sink, cupboards".[46]

45 Further in her own evidence, Tuminello stated that she told Lastrina that she was "...going to just do a facelift and not...a major renovation and pull up and pull out the bars and everything".[47] In addition Tuminello gave evidence that she had told Lastrina that she would "probably just do a little facelift inside" and not do a "full on reno".[48]

46 For these reasons, I accept that Applicant's submissions that the critical nature of the Closure and Knowledge Findings underpinned the ultimate conclusions made by the Tribunal and, moreover, by taking irrelevant considerations into account, the Tribunal deprived the Applicant of a fair hearing.

47 Grounds Five and Seven are closely related, and are conveniently considered together.

48 At paragraph 79 of the Reasons, the Tribunal found that the Tenant had been "induced to...deprive herself of income for several months".[49] Further at paragraph 81, the Tribunal held that the Tenant "went without several month's income".[50] It is clear that both of these findings stem from the erroneous Closure Finding. On the basis of these erroneous findings the Tribunal has, unsurprisingly, concluded that due to the Restaurant being closed from March to August 2016 - the Respondent earned no income during that period of time.

49 The Applicant submits - a position which I accept - that no evidence was led either at the Tribunal hearing or the hearing of the appeal of income lost due to the lengthy period of closure. These findings are based entirely on an irrelevant consideration, being the erroneous assumption of fact that was unsupported by any evidence.

50 For these reasons, I accept the Applicant's position that but for the Tribunal's errors in determining the Closure finding, the Tribunal would not have found that the Respondent "deprived herself of income for several months".

51 Ground Six is referred to by the Applicant as the "Foregone Opportunity Finding" and is based on the, as submitted - plainly incorrect - findings in paragraph 79 and 80 of the Reasons as expressed by the Tribunal which state:[51]

1. ...In doing so she has forgone the opportunity that she had to establish a business elsewhere and to invest her time and money in establishing a goodwill in premises where she had security of tenure.
2. ...Had she moved her business elsewhere, it is reasonable to suppose that she would have sought a lease upon terms similar to which was sought by the party that negotiated to buy her own business from the Applicant, namely, an initial period of three years followed by two option periods of five years.

52 The Tribunal held at paragraph 14 of the Reasons that the Respondent had renewed its existing lease until 23 November 2017.[52] Consequently the Respondent did not have the opportunity to vacate the Premises and establish a business elsewhere. It follows on this basis that the Respondent was committed to remain in occupation of the Premises pursuant to a binding agreement that would run until late November 2017.

53 It also follows that, as submitted by the Applicant:[53]

If this Court were to overturn the Foregone Opportunity Finding and award equitable compensation to the Tenant in lieu of orders for the execution of the Further Lease, there can be no loss of opportunity in the manner contemplated by the Tribunal. Any order for compensation will provide a complete reimbursement to the Tenant for its costs associated with the renovation. Therefore, when November 2017 arrives, the Tenant will be free to take this compensation and apply it towards a fresh renovation of new premises for which it has secured long-term lease.

54 The Respondent submits that the Tribunal's finding on the Foregone Opportunity Finding, means that the Respondent would have been able to save the $114,613.36 in order to secure a leasehold on a building when it became available prior to the termination of the current lease in November 2017 rather than expend it now on a premises that she was only going to be in for a short period of time.[54]

55 I accept the notion that it would be unlikely that the Respondent would have spent $114,613.36 on renovating the Premises without the purported representation by the Application of the Proposed New Lease. It also follows that the "minimum equity" to cure the detriment of that reliance would be for the Applicant to pay $114,613.36 plus interest to the Respondent to put the Respondent into the position that it was in the first place; prior to any representation being made.

56 The Applicant submits that the Tribunal's conclusion as to remedy is infected with a fatal error.[55] It reads:[56]

For these reasons I think that to fully compensate the Applicant for the inequitable situation that the Respondent has created it is necessary to direct the Respondent to grant the lease that it agreed to grant.

57 It is submitted that the Tribunal's reference to an "inequitable situation" plainly picked up the earlier findings at paragraphs 37 and 66 as to Lastrina's knowledge that the Tenant was carrying out a substantial and costly renovation. As has already been discussed, these findings were derived from the Closure Finding and the Knowledge Finding, which were irrelevant and erroneous considerations as they were entirely unsupported by evidence.

58 The Applicant accepts - and, in my view correctly - that the Tribunal accurately summarised the cases[57] dealing with the appropriate remedy for an equitable estoppel at paragraph 78 of the Reasons, where it stated:[58]

The cases are clear that the purpose of the award is to remove the inequity that the Respondent has brought about. It is not an award of damages or the enforcement of the promise. However the fact that the award is confined to removing the inequity and no more does not mean that the tribunal or a court should be parsimonious. In some cases, such as Giumelli and Donis, it might be necessary that the promise be made good in order to avoid the inequity that the Respondent has created.

59 The Applicant submits, however, that the Tribunal erred in applying this test to the facts as found.[59] In my view this submission is made out as it is clear that, in this case, the Respondent's detrimental reliance could have been entirely ameliorated by an appropriate award of equitable compensation and interest which, in monetary terms, reflects the extent of the detriment suffered.

60 In Walton Stores (Interstate) Ltd v Maher, Mason CJ and Wilson J stated the relevant principle as follows:[60]

[A] person whose conduct creates or lends force to an assumption by another that he will obtain an interest in the first person's land and on the basis of that expectation the other person alters his position or acts to his detriment, may bring into existence an equity in favour of that other person, the nature and extent of the equity depending on the circumstances.

61 It is submitted by the Applicant that in the particular circumstances of this proceeding, that an award of equitable compensation plus interest is sufficient to ameliorate any detriment the Respondent has suffered by virtue of any unconscionable conduct of the Applicant.[61]

62 In response, the Respondent submitted that "the principle of proprietary estoppel is governed by the strength and nature of the promise"[62] and that "it is no longer the proposition that...in all cases that the minimum equity will suffice"[63]. I do not accept the latter submission as a long held element of minimum equity is that "the prima facie position will yield to individual circumstances".[64] There is no absolute proposition, whether on the basis of promissory or proprietary estoppel, that the "minimum equity" can only be achieved in a situation like the present by granting the Proposed New Lease; whether or not, as well, reimbursing the Respondent all monies spent in renovating the Premises.

63 In support of my opinion in this respect it is apposite to have regard to the following statement by Nettle J in Crown Melbourne Ltd v Cosmopolitan Hotel (VIC) Pty Ltd:[65]

[217] The foundational principle on which equitable estoppel in all its forms is grounded is that equity will not permit an unjust or unconscionable departure by a party from an assumption or expectation of fact or law, present or future, which that party has caused another party to adopt for the purpose of their legal relations. Consequently, the notion that there is or should be some a priori distinction between the degree of objective certainty required to found a promissory estoppel compared to a proprietary estoppel runs counter to principle. The idea of "one overarching doctrine of estoppel rather than a series of independent rules" may not yet have "won general acceptance". But, in as much as the recognised categories of equitable estoppel are instances of the operation of the more general foundational principle, the determination of whether it is unconscionable for the charged party to depart from an assumption or expectation created in the mind of the claimant must always depend on the particular facts and circumstances of the case. The recognised applications of established categories of promissory estoppel are not necessarily exhaustive of the cases in which equity will intervene and, even if they were, it would not follow that because it has been found in the context of one relationship that a designated level of certainty was required, the same degree of certainty would be necessary in the context of a different relationship or in different circumstances.

[218] Finally on this aspect of the matter, as Warren CJ emphasised, since the object of equitable estoppel in all its forms is to prevent the detriment which a representee would suffer if the representor were unjustly or unconscionably to depart from the assumption or expectation created in the mind of the representee, relief should be accorded only to the extent of the minimum content of the assumed state of affairs from which it would be unjust or unconscionable for the representor to depart. Frequently, that may not extend to compelling the representor to fulfil the assumption or expectation as opposed to compensating the representee for the detriment suffered. Hence, although an equivocal or objectively ambiguous representation would be incapable of forming a binding contract, it may yet found a promissory estoppel. The equivocal or objectively ambiguous nature of the representation is but one, albeit important, consideration in the determination of whether and to what extent the assumption or expectation is fairly and reasonably to be attributed to the representation and thus the measure of relief which is to be accorded.

64 For these reasons I do not accept the Respondent's submissions that the Applicant has misconstrued the principles relevant to the grant of a proprietary interest based on proprietary estoppel.[66] Further, I do not accept the statement that "the detriment does not dictate the nature of the relief, it is the nature of the promise and the reliance placed on it".[67]

65 Also in support of its case, the Respondent made submissions in relation to the demolition clause in the Proposed New Lease.[68] For the preceding reasons it is not necessary to address the submissions with respect to that clause as it was not an issue raised on appeal by the Applicant and is not, for the reasons which follow, a matter open for argument in this appeal in the absence of any cross appeal by the Respondents. Moreover, as considerations of "minimum equity" never come near invoking an order of the kind contemplated by the Respondent this issue does not arise.

66 The Respondent filed a Notice of Contention on 6 September 2016 seeking that the decision of Senior Member Walker be affirmed but on grounds other than those relied upon. The Respondent relied upon the following grounds:

1. By reasons of the findings set out in the VCAT Order the tribunal should have found that there was:
   1. An agreement for lease under the provisions of Walsh v Lonsdale (1882) 21 Ch D 9; or alternatively
   2. A lease entered into in between the applicant and the respondent in accordance with Electronic Transactions (Victoria) Act 2000.
2. If the "knowledge finding" set out in paragraph 2 of the Notice of Appeal was not supported by evidence which is expressly denied then there was ample evidence from which the Tribunal could have found that the applicant knew that the respondent was undertaking substantial renovations and that the restaurant was closed for a considerable period of time during the renovations.

67 The Applicant raised with the Court the question of whether on an appeal limited to questions of law, the Respondent could rely on a Notice of Contention. The Applicant made the following submissions that the Respondent had among other things, no legal entitlement to file such a document:[69]

1. The notice of contention should be dismissed for the following four reasons.
2. First, there is no legal entitlement for the respondent to an appeal under s.148 of the VCAT Act to file a notice of contention. The provisions of s.148 of the VCAT Act and Part 2 of the Supreme Court (Miscellaneous Proceedings) Rules 2008 (Vic) exhaustively define the scope and nature of the statutory appeal from VCAT to this Court. Those provisions do not provide any right to file a notice of contention.
3. Whilst previous decisions have apparently assumed that a right to file a notice of contention exists, the question has never (to counsel's knowledge) been raised for decision. Given that the nature of the statutory appeal essentially involves the judicial review of the original decision , it is difficult to see how a notice of contention could be filed without statutory authority, when the effect of such a notice is to 'contend that the decision from which the appellant has appealed should be affirmed on a ground which was not decided or was erroneously decided or was not raised for decision below'. Judicial review involves the assessment of the decision in fact made, and the reasons and processes attending the making of the decision. It does not intrude into considerations of whether the same decision could have been made on a different basis.
4. Second, even if a notice of contention procedure does exist, it would assumedly be confined to seeking an affirmation of the precise orders made by the Tribunal. In this case, the relevant order of the Tribunal was to execute lease documentation provided to the Tenant in December 2014. At least one argument raised in the notice of contention is founded on the proposition that a lease was reached between the parties in earlier emails dated 4 and 5 September 2014. If that argument was correct, then the appropriate relief would have been a declaration that the alleged lease already existed as a result of the relevant emails. This was not the order in fact made by VCAT. As such, the notice of contention cannot be sustained to the extent it alleges that a lease existed in consequence of the September 2014 emails, as this would require a variation of the Orders.
5. Third, the arguments at paragraph 1 of the notice of contention must overcome findings of fact by the Tribunal that: (a) the September 2014 emails purported to create an agreement to lease rather than a lease , and (b) any agreement to lease or lease did not contain any concluded agreement as to the commencement date. Whatever scope the notice of contention procedure may possess (assuming it exists at all), it could certainly not extend so as to allow a respondent to compel the wholesale reconsideration of the Tribunal's factual findings by this Court. In any event, those findings of fact are unimpeachable on their face, and no evidence has been adduced before this Court to warrant their reconsideration.
6. Fourth, the Tribunal's relevant findings hinged on the absence of any agreed commencement date for the lease or agreement to lease (or the absence of that commencement date from the relevant 'memorandum' of the agreement). These conclusions were well supported by authority. It is clearly established that a memorandum capable of satisfying s.126(1) of the Instruments Act 1958 must specify the commencement of the term. It is also clear that the doctrines of contractual certainty and completeness require that a commencement date must be specified in the lease, or be capable of ascertainment. In this case, no such commencement date was specified in the emails. The Tenant had sought to argue that a 1 November 2014 commencement had been orally agreed between the parties, but the Tribunal was 'unable to determine whether this starting date was actually discussed or was simply an assumption that (Tuminello) made.' In light of that finding, it would be very difficult indeed for the Tenant to argue that a commencement date should somehow be 'ascertained' from the circumstances so as to avoid uncertainty.
7. The Landlord shall seek to file a brief addendum to these submissions should any unanticipated arguments be made in support of the notice of contention. That notice is devoid of virtually any detail, and the particulars referred to in paragraph 2 thereof have not been provided. This was obviously undesirable given the absence of any express right to file submissions in reply in the orders of 24 August 2016.

68 The Court has, on a number of occasions expressed some general but inconclusive views on whether a Notice of Contention may be used in proceedings such as the present.[70] I would, in light of these decisions tend the view advanced in the Applicant's submissions; but, as indicated below, I think the position is really beyond doubt given the language and structure of the Rules. However, given the substantive matters already addressed it is not necessary to address the issues raised by the Respondent with respect to the Notice of Contention; the applicability of this procedural device, or with respect to any further substantive matters. Moreover, for the preceding reasons there was no evidence before the Tribunal which would support the grounds relied upon by the Respondent[71] as alternative grounds in this context.

69 It is of some significance in this context that the use of a Notice of Contention in the Commercial List in the Supreme Court of New South Wales has been specifically prevented by express provisions in the Uniform Civil Procedure Rules 2005 (NSW).[72] Moreover, in Victoria the rules regarding Notices of Contention are only to be found in the Supreme Court (General Civil Procedure) Rules 2015 under the heading of 'Appeals and Applications to the Court of Appeal'.[73] Hence the language and structure of these Rules indicates, in my view, that this procedure is not available outside the appellate jurisdiction of the Court of Appeal. The absence of an express provision to this effect, as in New South Wales, does not affect the position given the clear language and structure of the Victorian Rules.

70 In all circumstances, the remedy ordered by the Tribunal manifestly exceeded the requirements of justice and equity for the purpose of ameliorating the detriment the Respondent has suffered. In other words the remedy ordered went far beyond the "minimum equity".

71 The Respondent had no lease at law and yet proceeded with the renovation works despite knowing that the additional lease had not been signed and returned by the Applicant; and while the Respondent's solicitors were making enquiries with the Applicant's solicitors to ascertain the whereabouts of the documentation. Although it might well be said that the Respondent brought misfortune on itself equity will, nevertheless, intervene to relieve against consequences when it would otherwise be unconscionable in all the circumstances to allow another party - such as the landlord here - to take advantage or otherwise benefit from the situation. Equity will, however, only address and ameliorate the unconscionability - but no more. Hence the outer limits of such relief are the "minimum equity", not the conferral of some disproportionate advantage on a party such as the Respondent.

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

[1] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016).

[2] An expression now well understood: see R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin).

[3] Commissioner of State Revenue v Frost (2011) 83 ATR 832 at 834 [5] citing Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-6 and Myers v Medical Practitioners Board (Vic) [2007] VSCA 163; (2007) 18 VR 48 at 55 [28].

[4] Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400; (2005) 145 LGERA 21, [15] citing Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 and Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198.

[5] (2011) 83 ATR 832 at 833-4 [3].

[6] Commissioner of State Revenue v STIC Australia Pty Ltd [2010] VSC 608; (2010) 81 ATR 682 at 687 [10].

[7] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331; Al-Hakim v Monash University (Unreported, Victorian Supreme Court of Appeal, 28 March 2003); Myers v Medical Practitioners Board (Vic) [2007] VSCA 163; (2007) 18 VR 48.

[8] See Morris v R [1987] HCA 50; (1987) 163 CLR 454 at 475.

[9] Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 at 333 [21].

[10] Morris v R [1987] HCA 50; (1987) 163 CLR 454 at 475; Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335.

[11] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-6; Commissioner of State Revenue v Challenger Property Nominees Pty Ltd [2006] VSC 203; (2006) 63 ATR 65 at 69 [20], 77 [65].

[12] [2005] HCA 40; (2005) 222 CLR 115 at 136 [64].

[13] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575, 597. Cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 348 [74].

[14] (Unreported, Supreme Court of Victoria, Ashley J, 21 December 1994) at 13.

[15] (1971) 38 LGRA 6 at 18.

[16] (1980) 44 LGRA 65 at 67-8.

[17] (1985) 62 LGRA 346 at 349-50.

[18] The Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442, [59].

[19] [1999] VSCA 117; [1999] 3 VR 331.

[20] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016), [16].

[21] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [17].

[22] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [59].

[23] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [60].

[24] Respondent's Outline of Submissions (10 October 2016) [33]-]40].

[25] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [27].

[26] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [27].

[27] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [28].

[28] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [65]-[6].

[29] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [66]-[7].

[30] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [82].

[31] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [80].

[32] [2010] VSC 590.

[33] Rugolino v Howard [2010] VSC 590, [10]-[2]; See also Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207, [247].

[34] Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197, 199; Roads Corporation v Dacakis [1995] VicRp 70; [1995] 2 VR 508, 517, 520; S v Crimes Compensation Tribunal [1998] 1 VR 83, 90; ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; (2008) 20 VR 447.

[35] S v Crimes Compensation Tribunal [1998] 1 VR 83, 90; Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 59, [43]-[44].

[36] Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139, 151.

[37] State of Victoria v Subramanian [2008] VSC 9; (2008) 19 VR 335, [32].

[38] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [34].

[42] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [35].

[43] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [35].

[44] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [37].

[45] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [66].

[49] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [79].

[50] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [81].

[51] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [79]-[80].

[52] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [14].

[53] Applicant's Outline of Submissions (4 October 2016) [50].

[54] Respondent's Outline of Submissions (10 October 2016) [27].

[55] Applicant's Outline of Submissions (4 October 2016) [52]

[56] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [82].

[57] Commonwealth v Verwayen (1990) 170 CLR 394 [33]; Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 [28]; Giumelli v Giumelli [1999] HCA 10; 196 CLR 101; 73 ALJR 547 [34]-[48]; Donis & Ors v Donis [2007] VSCA 89; (2007) 19 VR 577; Cosmopolitan Hotel (Vic) v Crown Melbourne Limited [2016] HCA 26; (2016) 90 ALJR 770.

[58] Risi Pty Ltd v Pin Oak Holdings (Building and Property) [2016] VCAT 1112 (4 July 2016) [78].

[59] Applicant's Outline of Submissions (4 October 2016) [57].

[60] [1988] HCA 7; (1988) 164 CLR 387 at 404 (emphasis added).

[61] Applicant's Outline of Submissions (4 October 2016) [55].

[62] Respondent's Outline of Submissions (10 October 2016) [10].

[64] Donis v Donis [2007] VSCA 89; (2007) 19 VR 577.

[65] [2016] HCA 26; (2016) 90 ALJR 770 at 810-811, [217]-[18] (citations omitted).

[66] Respondent's Outline of Submissions (10 October 2016) [23].

[67] Respondent's Outline of Submissions (10 October 2016) [23].

[69] Applicant's Outline of Submissions (4 October 2016), [66]-[72].

[70] See Commissioner of State Revenue v Oakbee Pty Ltd (as trustee for Notreen Investment Trust) and Others (2013) 96 ATRJ 619 at 627-9; Secretary to the Department of Justice v Osland [2007] VSCA 96; (2007) 26 VAR 425 at 454 [111]; [2007] VSCA 96; 95 ALD 380 at 407 [111]; DFJ v Secretary to the Department of Justice [2012] VSCA 177 at [93]; Cityrose Trading Pty Ltd v Booth [2013] VSC 504 at [24] and [106]; see, however the doubts expressed in Dover Beach Pty Ltd v Geftine Pty Ltd [2008] VSCA 248; (2008) 21 VR 442 at 451 [37].

[72] Uniform Civil Procedure Rules 2005 (NSW), r.50.11.

[73] Supreme Court (General Civil Procedure) Rules 2015, r.64.01.