Azzi & Ors v Volvo Car Australia Pty Ltd [2007] NSWSC 319 | Case summary

Azzi & Ors v Volvo Car Australia Pty Ltd [2007] NSWSC 319 | Case summary | Zoe

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Accredited Aged Care Facilities Pty Ltd v Banyan Tree (Australia) Pty Ltd [2002] VSC 261 Auburn Council v Austin Australia Pty Ltd (in liq) [2007] NSWSC 130 Batterham v QSR Limited (2006) 227 ALR 212; [2006] HCA 23 Barton v Croner Trading Pty Ltd (1984) 3 FCR 95; 54 ALR 541 Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Brandster v Tryak Pty Ltd (1989) 28 IR 329 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529 D&G Motors Pty Ltd v Capitol Motors Ltd [1973] AR(NSW) 806 Emanuele v Chamber of Commerce & Industry SA Incorporated [1994] ANZ ConvR 417 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Fish v Solution 6 Holdings Ltd (2006) 227 ALR 241, [2006] HCA 22 Fortuna Seafoods Pty Ltd v The Ship "Eternal Wind" [2005] QCA 40 Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 McDonald's Australia Ltd v Industrial Relations Commission of NSW [2005] NSWCA 286 CASES CITED : Majik Markets Pty Ltd v Brake & Service Centre Drummoyne Pty Ltd (1991) NSWLR 443 Masters v Cameron (1954) 91 CLR 353 Mayne Nickless Limited v Industrial Relations Commission of New South Wales [2004] NSWCA 359; 141 IR 1 Milner v Delita Pty Ltd (1985) 61 ALR 557 Mitchforce Pty Ltd v Industrial Relations Commission (2003) 57 NSWLR 212 Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session [2006] HCA 24; (2006) 227 ALR 190 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Perre v Apand Pty Ltd (1999) 198 CLR 180 Production Spray Painting & Panel Beating Pty Ltd v Newnham (1991) NSWLR 644 QSR Limited v Industrial Relations Commission [2004] NSWCA 199 Rosser v The Maritime Services Board of NSW (No 2) NSWSC (Young J, 30 August 1993, BC 9301829) Ross T Smyth & Co Ltd v TD Bailey Son & Co [1940] 3 All ER 60 RT & YE Falls Investments Pty Ltd v State of New South Wales [2001] NSWSC 1027 Sinclair Scott & Co v Naughton (1929) 43 CLR 310 Solution 6 Holdings Pty Ltd v Industrial Relations Commission of NSW (2004) 60 NSWLR 558 Sydney Water Corporation Limited v Industrial Relations Commission of NSW (2004) 61 NSWLR 661 VG Haulage Services Pty Ltd, Ex parte; Re Industrial Commission of NSW [1972] 2 NSWLR 81 Vroon BV v Fosters Brewing Group Ltd [1994] 2 VR 32 Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 Wesoky v Village Cinemas International Pty Ltd [2001] FCA 32

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50146/03 Tony Azzi (Automobiles) Pty Ltd & 3 Ors v Volvo Car (Australia) Pty Ltd 50156/03 Tony Azzi (Automobiles) Pty Ltd & 2 Ors v Volvo Car (Australia) Pty Ltd JUDGMENT 1 HIS HONOUR: In 2000, the first plaintiff Tony Azzi (Automobiles) Pty Ltd ("TAA") carried on business under the trade name Larke Hoskins conducting a Honda motor vehicle dealership from premises at Rosebery, Rushcutters Bay and Homebush. The main facility, at Rosebery, was owned by the second plaintiff Harissa Pty Ltd ("Harissa"), which also held and holds 99 per cent of the shares in TAA - the other one per cent being held by the third plaintiff Tony Azzi, who is the controlling mind of both companies. In mid-2000, TAA was appointed by the defendant Volvo Car Australia Pty Ltd ("Volvo") to be a Volvo dealer for its Sydney South Eastern region, pursuant to a letter captioned "Volvo Representation", which had evolved through several iterations - the last of which was dated and apparently executed by Volvo on 16 August 2000 and accepted by TAA on 16 September 2000 - and which provided, inter alia, as follows: 2. Requirement - Dealer Agreement The initial Dealer Agreement will be for a period of one (1) year, which agreement will be replaced by a Dealer Agreement with a term of five (5) years, prior to the expiration of the one (1) year agreement. The conditions for renewal, non-renewal and termination will be clearly established within both the one year and five year agreements. 2 Also on 16 September 2000, TAA executed a dealer agreement for a term of one year, which was expressed to commence with effect from 1 July 2000, a date that corresponds with the time at which TAA began to sell Volvo cars. By the time that a year had elapsed from 1 July 2000, and before any five-year dealer agreement had been executed, the relationship between TAA and Volvo had soured. Volvo raised complaints about TAA's performance as a dealer, which TAA disputed. Volvo at first asserted that it was not bound to give TAA a replacement five-year agreement, though it was later to resile from that position. When Volvo eventually submitted a five-year dealer agreement to TAA, the draft included a provision for termination on 120 days' notice. TAA contended that inclusion of such a provision was inconsistent with the "Volvo Representation" letter of 16 August 2000, and treated it as a repudiation, which it purported to accept; Volvo treated TAA's purported termination as a repudiation, which it in turn purported to accept. 3 In these proceedings, which were initiated in the Federal Court and transferred to this Court under the (CTH) Jurisdiction of Courts (Cross-Vesting) Act 1987, s 5(4), TAA alleges that there was a contract made between it and Volvo on or about 1 July 2000, the terms of which were subsequently incorporated in the "Volvo Representation" letter ultimately executed by TAA on 16 September 2000, including the provision about one-year and five-year dealer agreements set out above. Alternatively, TAA contends that if there was no such contract at law, nonetheless there was an equitable estoppel of the type described in Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387, to the same effect. TAA alleges that by a course of conduct, culminating in but not limited to the inclusion in the draft five-year dealer agreement of the 120-day notice provision, Volvo repudiated that contract, and sues for damages for breach arising from that repudiation, those damages said to be the lost profits that it would have made under the five-year agreement, and the lost opportunity to renew the dealership at the end of the five year term. 4 Alternatively, Harissa alleges that if there were not such a contract, then by making representations, in the "Volvo Representation" letter and elsewhere, to the effect that TAA would be granted terms of one plus five years, Volvo engaged in misleading and deceptive conduct contrary to (CTH) Trade Practices Act 1974, s 52, and/or (NSW) Fair Trading Act 1987, s 42, and unconscionable conduct contrary to Trade Practices Act, s 51AC, by which Harissa incurred loss through its expenditure on improving the Rosebery premises in the belief that TAA would have a five-year dealership. 5 Further, TAA complains that by making representations after mid-2001 to the effect that TAA was not entitled to a further five-year term, when (on TAA's case) it was so entitled, Volvo thereby engaged in other misleading and deceptive conduct contrary to Trade Practices Act s 52, by reason of which it is contended that third parties were influenced to the end that TAA lost the opportunity of participating in a float of its business in Hong Kong and the expenditure it had so far incurred in pursuing that opportunity was wasted. 6 In addition, Harissa (which was and is the proprietor of the land and buildings from which TAA conducts its business) claims that Volvo's alleged repudiation of its contract with TAA was a breach of a duty of care owed by Volvo not to cause foreseeable financial damage to Harissa.

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10 From about June 1999, Mr Azzi (on behalf of TAA) was engaged in discussions with Messrs Eriksson and O'Keefe (of Volvo) concerning a proposal that TAA establish a Volvo dealership in the Rosebery premises. In the course of those discussions, Messrs Eriksson and O'Keefe described the proposed dealership as part of the beginning of a new phase of restructuring that Volvo was proposing to implement, with the proposed dealership to cater for the City, Rushcutters Bay and Rosebery (as the hub dealership), and a satellite dealership based at Sylvania to cater for the Sydney Southern region, including the Sutherland Shire. They said that Volvo wished to reduce the number of its dealer outlets and intended to implement a three dealer strategy, and that TAA's area of responsibility (with the satellite site) would extend from the City down to the southern suburbs, covering a third of the Sydney metropolitan area, including areas up to then serviced by Monaco Motors and Dominelli. The parties discussed a long-term relationship and a long-term investment. Mr Eriksson invoked Volvo's slogan of "Volvo for life". In cross-examination, Mr Azzi said: I spoke to Mr Eriksson about a long term viability for the - for me becoming a Volvo dealer and I mentioned, due to the large investment and even the investment down south, a minimum period of ten years plus ten. Mr Eriksson said something to the effect, 'Tony, we will give you a long term commitment, but it might have to come in various shapes. We are trying to sort it out between me and Paul [O'Keefe] because of the three dealer strategy. What we will commit to you is a long term commitment for your investment and Paul will come back to you as to how the term is to be set out in the agreement form. 11 In a letter to Larke Hoskins dated 1 July 1999, Volvo stated: Volvo is currently working intensively to deliver a rejuvenated dealer network in Sydney. An essential element of this plan is the consolidation of the current areas of responsibility (AOR) into larger AORs serviced by fewer dealer groups. It is our clear intention that Sydney will be serviced by only three such groups. Each of the newly expanded AORs will be serviced by a central 'hub' dealership. Satellite dealerships providing sales/service and parts or service and parts, as required, will be located so as to best service customers' needs and maximise the Volvo business in each AOR. … In line with our 'three dealer' strategy, we intend to deliver landmark retail outlets for Volvo in the three identified hub locations. … In addition to a reduction in dealer groups in Sydney, we intend to deliver a more even distribution of sales potential between the dealers. To achieve this, we intend to realign certain postcodes with our current Haberfield AOR to become part of the eastern Sydney AOR. The Hurstville AOR will be incorporated in full. These changes will deliver increased potential for the eastern AOR along with a more realistic alignment of the customers and their natural dealer locations. 12 In September 1999, Mr O'Keefe reported to Volvo's board: In May VCA tabled a 'three dealer' strategy for the Sydney metropolitan area. This strategy involved the termination of all current dealers, the amalgamation of the seven AORs into three and the appointment of three dealer groups, who would operate hub and satellite operations within each AOR. We have now identified three dealer groups who have demonstrated an ability and willingness to meet our requirements and targets. We are currently engaged in detailed discussions with all three. … Larke Hoskins are a prominent dealer who have, in the recent past, been a multi-site, stand alone Honda dealer. They are well established as an eastern suburbs and inner city dealer and achieve strong result into the key areas of this AOR. Larke Hoskins have secured prominent facilities in Rushcutters Bay and in Zetland, the two primary automotive precincts for the city and Eastern suburbs. They propose to provide facilities in both areas for Volvo.

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16 On 10 May 2000, Volvo issued to TAA the first (draft) version of the letter entitled "Volvo Representation", appointing TAA as the Volvo dealer for southern Sydney. Paragraph 2, entitled "Requirement - Dealer Agreement", was in the form already set out [see [1] above]. The letter defined TAA's area of responsibility, outlined Volvo's requirements, and included a requirement that TAA develop a southern suburb satellite dealership. 17 A schedule of works for the temporary Volvo showroom was prepared, and a development application was lodged with South Sydney Council on 27 May 2000. This work - to construct the first, temporary, Volvo showroom - was completed by 1 July 2000, to Volvo's apparent considerable satisfaction. 18 Following a conversation between Mr Azzi and Mr O'Keefe on about 16 May 2000, and a letter from Mr Azzi dated 17 May 2000, some changes were made to the Volvo Representation letter, the second version of which issued on 26 June 2000, and involved amendments of a relatively minor nature to: the time for completion of the permanent Volvo facility at Rosebery; the date for submission by TAA of a proposal for the Rushcutters Bay satellite; the identity of the postcodes for the southern satellite area; a requirement for the provision of a schedule for site procurement of that satellite; terms relating to the use of the name of the dealership; and an increase in the amount of business development support to be provided by Volvo. 19 TAA received Volvo cars from about 24 May 2000, and commenced trading as a Volvo dealer at Rosebery from 1 July 2000. Mr Azzi sought further changes to the "Volvo Representation" letter, and by letter dated 3 July 2000, and Volvo issued a further version on 26 July 2000, which it described in a covering letter as a revision of "our letter of agreement". The final version of the Volvo representation letter, dated 16 August 2000 and executed by TAA on 16 September 2000, is in substantially the same terms as that of 26 July 2000. 20 Also on 16 September 2000, TAA executed and returned the one-year dealer agreement, in respect a term of one year from 1 July 2000 to 30 June 2001. It included the following relevant provisions: 2(1) The Dealer Agreement is subject to the Franchising Code of Conduct (the Code) as prescribed under s 51AE of the Trade Practices Act 1974 (as amended). … 2(5) (a) Prior to executing this Agreement Dealer acknowledges that it has provided to Volvo a signed statement that the Dealer has been given advice about the Dealer Agreement or the Dealership business by any of the following: (i) an independent legal advisor; (ii) an independent business advisor; (iii) an independent accountant; (b) For each kind of statement not received under paragraph (a) above, a signed statement by the prospective Dealer that the prospective Dealer: (i) has been given that kind of advice about the proposed Dealer Agreement or Dealer Business; (ii) has been told the kind of advice that should be sought but has decided not to seek it. … (23) Term. This Agreement shall commence on 1 July 2000 and shall continue thereafter for a term of one (1) year (the "Term") or until terminated by either party as set out hereunder. … (29) Business relations following termination. Any business relationship between the parties continuing after termination the notice of this Agreement has been given or continuing after termination of this Agreement shall not be construed as renewal of the Agreement or waiver of notice of termination or termination but otherwise shall be subject to terms identical with the provisions of this Agreement so far as are applicable … (34) Entire Agreement. This Agreement comprises the entire Agreement between the parties as at the date hereof and no amendment to or variation of this Agreement shall be binding on either party unless in writing and signed by both parties or by their duly authorised officers.

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22 With reference to RT & YE Falls Investments Pty Ltd v State of New South Wales [2001] NSWSC 1027, [53]-[58] (Palmer J), Mr West submitted that a cautious approach should be adopted in considering whether a binding contract had been made from negotiations between parties to a commercial transaction, prior to the execution of a formal document. In a case such as Falls - in which one of the parties was a government department and the issue was whether a binding contract had arisen from oral discussions - it is prima facie unlikely that the department will have committed itself to binding obligations without documentation, and one would be reluctant to infer that there was an intention to be legally bound in the absence of such documentation. But a less cautious approach is called for where there are commercial dealings between parties who act as if they are in legal relations and document their arrangements, albeit imperfectly: it is far more difficult to say that a contract which is apparently part-performed is no contract at all, since to do so must attribute to the parties an intention to perform work either at no cost, or alternatively on a basis yet to be determined, even though the work has been done in the context of an apparent agreement to perform it [cf Rosser v The Maritime Services Board of NSW (No 2) NSWSC (Young J, 30 August 1993, BC 9301829, p15]. Thus in Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32, Ormiston J held that in commercial transactions courts should strive to give effect to the expressed arrangements and expectations of those engaged in business, notwithstanding that there were areas of uncertainty and notwithstanding that particular terms had been omitted or not fully worked out - although there could be no binding and enforceable obligation unless the essential or critical terms had been agreed, and the courts would not enforce an agreement to agree at some time in the future. Further, where parties had deliberately written out the terms upon which they wished to bargain, but had omitted or inadequately expressed a term which might in other circumstances have been expressly or more precisely stated, courts will endeavour to give effect to the fact that the parties did not see the absence or deficiency of such a term as preventing them from reaching agreement. And where the court is satisfied that the parties have reached agreement judged by objective standards, then it will be more generous in giving effect to what is necessary to achieve business efficacy and their intentions, although their communications may have had an air of uncertainty and incompleteness about them.

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23 As Ormiston J also observed, a court can enquire as to the existence of an agreement evidenced otherwise than by offer and acceptance, and agreement can be extracted from circumstances where no acceptance of an offer can be established or inferred, and where the most that can be said is that manifestation of mutual assent must be implied from the circumstances. In Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110, McHugh JA said, at 11,117: … It is an error 'to suppose that merely because something has been done then there is therefore some contract in existence which has thereby been executed'. … Nevertheless, a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words. … The question in this class of case is whether the conduct of the parties, viewed in the light of the surrounding circumstances shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the essential elements of an express contract … 24 In many commercial situations, it can be seen that there is a contract, although it may be difficult to analyse at precisely what point in time there was an exact correspondence of offer and acceptance [Rosser v The Maritime Services Board of NSW (No 2), p 8]. In Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153, Heydon JA (at 177 [74]) acknowledged that recognition had been given to the possibility of finding that contracts exist even though it is not easy to locate an offer or acceptance, referring with apparent approval to the judgment of Ormiston J in Vroon, and to that of the Court of Appeal in Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 - in which McHugh JA, with whom Samuels JA concurred, said (at 535) that where an offeree with a reasonable opportunity to reject an offer of goods or services took the benefit of them under circumstances which indicated that they were to be paid for in accordance with the offer, it was open to hold that the offer was accepted according to its terms - concluding (at 179 [81]): In the light of the above cases, it is relevant to ask: In all the circumstances can an agreement be inferred? Has mutual assent been manifested? What would a reasonable person in the position of the counsel and a reasonable person in the position of the defendant think as to whether there was a concluded bargain?

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31 Mr West pointed to the terms of the one-year dealer agreement, and that TAA had been legally advised in respect of it, in support of the contention that it was the "entire agreement" between the parties. However, the one-year dealer agreement - and in particular its provision that it is "the entire agreement" - must be construed in the context of the Representation letter, as being issued pursuant to and in accordance with the Representation letter. In that context, the one-year dealer agreement did not replace or subsume the Representation letter. To the contrary, it was the first of the dealer agreements contemplated by the Representation letter. In effect, the Representation letter was the "Head Agreement", pursuant to which dealer agreements were to issue. This is consistent with what, according to Mr Azzi, Mr O'Keefe said: The current situation of the dealers is just a mass of paperwork. Some of our country dealers do not even have a dealership agreement. The paper work is just a mess. We need time to put the three dealer strategy into effect. We need to look at the cancellation of a number of dealerships and bring the current dealer agreement all into line. We will guarantee the five year deal will be in place before the end of the first year. Don't worry about the one or the five year terms. 32 The one-year dealer agreement was the "entire agreement" in respect of the initial one-year dealership, but it did not supersede the Representation letter as the head agreement between the parties. Thus there was a "Head Agreement", ultimately encapsulated in the final version of the Representation letter, which provided for a series of subsidiary agreements, each of which would relate to a particular period of the total head agreement. 33 But Volvo contends that the Representation letter did not create any enforceable obligation to grant a replacement five-year term, on the basis that, at least in that respect, it was in the third class of Masters v Cameron. In my view, the context in which the Representation letter was issued - including imminent expenditure by TAA, prior discussions in which TAA had stipulated for a lengthy term in order to recoup its investment, and the content of the Representation letter as a whole - tell strongly against this vital aspect of it not having been intended to be binding. The stipulation to the effect that conditions for renewal, non-renewal and termination will be clearly established within the agreements is to be construed as "the conditions for renewal, non-renewal and termination if any will be clearly established …". In other words, it was left open to the parties to negotiate conditions for renewal, non-renewal and termination, both in respect of the one-year and the five-year dealer agreements. But if they could not otherwise agree on such terms, then the Representation letter would continue to govern the relationship. It is illustrative of this that the one-year dealer agreement did not include any conditions for renewal, non-renewal or termination. 34 However, I do not accept Mr Trew's submission that the effect of the second limb of requirement 2, that "the condition for renewal, non-renewal and termination will be clearly established within both the one year and five year agreements", imposed on Volvo an obligation to include in such agreements, and any draft, a provision for renewal (and implicitly, although he did not expressly so submit, provisions for non-renewal and termination). Rather, the second limb of requirement 2 set out the intention or expectation of the parties that provisions for renewal, non-renewal and termination (if any) would be covered in the one-year and five-year agreements. It anticipated further negotiation on those topics, so that the subsidiary agreements might contain such provisions on those topics as the parties might later agree; to the extent that there was no further agreement, there would be no provision for renewal (or non-renewal), and as to termination the parties would be left to their rights at law, and the dealership would be terminable only for cause, or by effluxion of time.

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37 Further support for the conclusion that the parties intended to be bound in this respect by the Representation letter may be gained from admissions made on behalf of Volvo. On 12 September 2001, after disputation had arisen, Clayton Utz (then acting for Volvo) wrote to Bamford Hogg (then acting for TAA), relevantly as follows: We note that, pursuant to the terms of the letter from Volvo to your client dated 16 August 2000 (accepted by your client on 16 September 2000), the initial dealer agreement was to run for a period one year which agreement was then to be replaced by a dealer agreement with a term of five years. We confirm, as we informed you during our telephone conversation call on Monday afternoon, that we believe that the term of the first agreement ran until 30 June 2001 and that accordingly the term of the five year dealer agreement commenced on 1 July 2001. In light of the application of the franchising code of conduct to the arrangements between our clients, and as we indicated during our telephone call on Monday, Volvo will provide your client with a disclosure document prepared in accordance with the franchising code of conduct, before the parties execute an appropriate document reflecting the terms of the current agreement between the parties. 38 In a further letter dated 13 September 2001, Clayton Utz wrote: We note that while Volvo is of the view that TAA has not met and is not meeting certain of its obligations under the agreement, the agreement remains on foot. Accordingly, we assume that TAA will continue to honour its obligations under the agreement. For its part, Volvo will continue to honour its obligations and act in accordance with the terms of the agreement. … 11. Our client's position with regard to the further five year term is clearly set out in our letter to you of earlier today. We confirm, as we informed you during our telephone conversation on Monday afternoon, that we believe that the term of the first agreement ran until 30 June 2001 and that, accordingly, the term of the five year of the agreement commenced on 1 July 2001. 39 And on 11 October 2001, Letherbarrow Lawyers (who by then were acting for Volvo) wrote to Blake Dawson Waldron (who were then acting for TAA), relevantly as follows: You assert (in the alternative) that Volvo has, in fact, entered into a five year agreement with your client (the "Agreement"). We agree. Volvo's preparedness to do so, notwithstanding breaches of the previous one year agreement (in respect of which Volvo reserved its rights) was confirmed in Volvo's letter of 7 September 2001, which stated that the agreement would remain unchanged until terminated in accordance with its terms, and Clayton Utz' letter of 12 September 2001 on Volvo's behalf to Bamford Hogg Lawyers on behalf of your client. That letter drew attention to Volvo's obligations to comply with the franchising code of conduct by providing a disclosure to your client before the parties could execute an appropriate document reflecting the terms of the current agreement between them. 40 Although not conclusive, this correspondence contains clear admissions on behalf of Volvo that it was bound, by the Representation letter, to grant a replacement five-year term. 41 Accordingly, I conclude that there was a binding contract between Volvo and TAA, ultimately encapsulated in the final version of the Representation letter, by which Volvo was obliged to grant TAA a dealership for a term of one year, to be replaced by a further dealership for a term of five years before or at the expiration of the initial one year period. The parties envisaged that in the case of both the one-year and the five-year dealerships, they might agree on additional terms, particularly in relation to renewal, non-renewal and termination; but were content to be bound in the meantime and in the absence of further agreement by the terms of the Representation letter. However, it was not a term of the Representation letter that any further agreement must provide for a renewal (or for that matter for termination), though it contemplated that it might, since such provisions were subject to the further agreement of the parties. 42 My conclusion that there was a binding contract to this effect renders it unnecessary to consider the alternative argument based on equitable estoppel. Did Volvo Repudiate the Contract? 43 By mid-2000, TAA and/or Harissa, in performance of TAA's obligations to Volvo, had spent considerable sums in upgrading the Rosebery premises to install the temporary showroom, and in the latter part of 2001 were expending further money in upgrading to a permanent showroom. TAA submits that in that context, from July 2001 onwards, Volvo repudiated the parties' contract. 44 Requirement 5 of the Representation letter obliged TAA to develop a satellite facility in the southern suburbs at a location agreeable to both parties, to be operational within eighteen months (that is, by 1 January 2002). On or about 11 July 2001, Mr Azzi, together with Messrs Snijders, Clarke and Desselss of Volvo, inspected a property at Blakehurst that Mr Azzi considered a potential site for that purpose. After the inspection, Mr Snijders questioned why Mr Azzi was going ahead at that stage with the satellite dealership, when he had been experiencing trading losses, and suggested that he focus on getting Rosebery in order first. Mr Azzi says that he expressed a view that the southern suburbs were essential, and that he had a commitment to set up a southern satellite dealership within eighteen months. However, a suggestion on behalf of Volvo to focus on getting Rosebery in order first, rather than pressing ahead with the satellite dealership, hardly evinces an intention no longer to be bound by the contract. In the same conversation, Mr Azzi asked Mr Snijders when he was going to get his five-year written agreement, and Mr Snijders responded to the effect that it was underway and it was only a matter of the paperwork. Again, that does not begin to evince an intention on the part of Volvo not to be bound. 45 On 31 July 2001, Mr Snijders wrote to TAA, setting out Volvo's view of TAA's shortcomings in its performance, and expressing for the first time the view that the original agreement had expired on 1 July 2001 and that Volvo did not then see itself in a position to renew the agreement: As you are aware, our original agreement expired on 1 of July 2001. In the brief period since that date we have had several discussions on the above matters, and I am aware that separate discussions have also been held between yourself and various departments within Volvo. Tony, at this time, we seek your input on any actions that you intend to undertake that would immediately address the above concerns and encourage us to renew our agreement and proceed with this partnership. Based on the above, and without a substantial change in approach, we do not currently see ourselves in a position to do so. We confirm that until we can resolve the above, we are not in a position to pursue a second location with Sydney City Volvo. Further, we reserve the right to retain the existing operator should we require, until such time as the above items are resolved and a clear forward direction is agreed. I look forward to your response in due course. 46 The position adopted by Volvo in this letter was inconsistent with the agreement, both in indicating that Volvo would not cooperate in the creation of the southern suburbs satellite, and in asserting that the agreement had expired. At this time, Mr Snijders was unaware of the contents of the Representation letter and the first dealer agreement. Although Mr Trew submitted that the circumstance that Mr Snijders then had no knowledge of the Representation letter gave these matters even greater significance, by making clearer that his conduct was in complete disregard of the agreement, I do not agree; the question is what one party's allegedly repudiatory conduct conveys to the other, not what the first party actually knows or intends in respect of the contract. 47 In any event, matters did not stand still with the letter of 31 July. Mr Azzi immediately sought a meeting with Mr Snijders, which occurred on 9 August 2001. The meeting was relatively informal, and conveyed to Mr Azzi that his dealership was secure. Mr Snijders told Mr Azzi that he would get his five-year agreement (even though Mr Snijders was unaware of the Representation letter). The conversation of 9 August 2001 conveyed nothing suggestive that Volvo would not perform its obligations, and the fact that Mr Snijders was unaware of the Representation letter does not add to it any repudiatory flavour that it does not otherwise bear.

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51 On 31 August 2001, however, Mr Snijders sent Mr Azzi a letter (responding to the request for consent to inclusion in the prospectus for the proposed Hong Kong float): With regard to our inclusion within the prospectus documents, we confirm that at the current time our dealer agreement has expired and that the provision of the five year agreement is not yet guaranteed. 52 Mr Azzi replied on 3 September 2001, "with total disappointment": The statements contained in your letter relating to the dealer agreement are in stark contradiction with all of the verbal confirmation that you gave to me during our various meetings. I have on more than one occasion received your assurance that the dealer agreement between our respective companies is for a total of six years (one plus five) starting from [1 July 2000]. It has always been my principle to clarify misunderstandings and to avoid legal disputes where possible, in the interest of business efficiency and relationships. On the other hand, it is also my principle to strenuously defend and relentlessly enforce the legal rights of my company. I have sought legal advice on the construction of the terms of the initial dealer agreement and the views of my lawyers concur with my understanding. I have also been advised that the third paragraph of your letter has amounted to a unilateral breach of the terms of the dealer agreement. In this regard, all of the legal rights of my company are expressly reserved. Unless I receive from you, within two days from the date hereof, a written statement setting out your company's position to confirm that the dealer agreement is and will remain for a full term of six years as agreed, legal action shall be commenced against your company for breach of contract without further notice and I shall present the matter on hand to your Head Office in Sweden. 53 Later on 3 September, there was a telephone conversation between Mr Snijders and Mr Azzi. In the course of a second telephone conversation that evening, Mr Azzi thought that Mr Snijders seemed agreeable, and his only question was the allegation of "unilateral breach of the terms of the dealer agreement". Mr Azzi explained that that was due to his interpretation, again, of the term as being one year, rather than six as Mr Azzi understood it. Mr Snijders confirmed again that six years was agreed; "the only issue was that he felt pushed and on the other small concerns". 54 On 5 September 2001, Mr Desselss and Mr O'Keefe of Volvo sent a letter to TAA, referring to their letter of 31 July and the meeting of 8 August and Mr Azzi's response of 15 August (but not to what had happened since), relevantly as follows: Whilst we note the commitments made in your letter of 15 August 2001, we advise that we do not yet agree that these issues have been sufficiently resolved to enable a renewal of our dealer agreement. In order to give you the opportunity to demonstrate your commitment to resolving this situation, and to reinforce our absolute requirement that this occurs, we have decided to provide a three month period to allow you to undertake the necessary actions. This period shall commence on 5 September 2001 and end on 4 December 2001. We will reassess the situation at Sydney City Volvo at the completion of this period. Should we be satisfied that the performance of the dealership has been rectified and that an operating structure has been implemented which will ensure the ongoing development of the business, we will commence a positive review of our longer term agreement. Should, however, at the end of this period, the required actions and outcomes not have been achieved, we confirm that we will not be in a position to proceed with the renewal of our dealer agreements with Tony Azzi (Automobiles) Pty Ltd. …

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55 Receipt of that letter was followed almost immediately by a telephone call from the person who had signed it on behalf of Mr Desselss, to the effect that the letter had been sent without Mr Snijders' endorsement and should be disregarded. Although Volvo's letter of 5 September was inconsistent with the contractual position, its immediate withdrawal as having been sent in error, before it was acted on, precludes it from being treated as repudiatory. 56 Mr Azzi responded on 6 September 2001, relevantly as follows: I refer to your faxed letter dated 5 September 2001 that arrived on my desk early yesterday afternoon. The letter was almost immediately followed by a phone call from Gayle Pugh who had signed the letter on behalf of Mr Alan Desselss stating that it was sent to me without your endorsement and that I should disregard this letter. It is difficult for me to disregard the contents of the letter after having read it for it reflects a grave misunderstanding on the agreement reached between your company (under the leadership of your predecessor) and ours in July 2000 and a lack of appreciation of the financial and legal implications for our respective companies flowing from that agreement. … There was no mention anywhere of any conditions for the renewal of the five year term or for a probation period under our agreement with Volvo. The imposition of any such condition at this point in time is without any legal or commercial justification. I note for the record the following: · I was repeatedly assured by you as the Managing Director of Volvo Car Australia Pty Ltd up to Monday night that you understood that our dealer agreement is for a term of six years in total. No probation or conditions were ever stated or implied in writing or verbally by you in our numerous meetings. · It was on your invitation that I became the Chairman of the National Volvo Dealer Council for Australia and to think that a franchisee that holds a one year dealer agreement would be invited by the local Volvo Managing Director to that post is against common sense and be unheard of in any country that Volvo carries on business; · I was involved, with your knowledge, in the assessment on numerous occasions with the possibilities for a second location in Sydney; as contemplated by our agreement with you. · I have been induced to invest a considerable sum of money and time on the basis of the above. · You will no doubt understand that I have been in the motor business in Australia in excess of twenty years. I have a thorough understanding of the Australian market and an appreciation for good personnel that contributed to the growth of 'Larke Hoskins' under my management and ownership. … · Your management has now brought our concerns to reality by going further to state that the dealer agreement, which induced my company to invest a considerable sum to develop its Volvo franchise is now conditional or carries a probation period and that it is for one year instead of six years in total (see paragraph 2 of letter dated 16 August 2000 from Paul O'Keefe to me). … For the purpose of the proposed application for the listing of the Larke Hoskins group of companies on the Stock Exchange of Hong Kong Limited, I have personally delivered to you a letter requesting your confirmation for permission to refer to the name 'Volvo' in the prospectus and to refer to the principal terms of the dealer agreement. During our meeting on 22 August 2001, our plans were explained and intentions made clear to you relating to the purpose of the letter. Similar letters were delivered to the franchisors for both Honda (letter delivered 24 August 2001) and Mercedes Benz (letter delivered 16 August 2001) to which we have received favourable replies. Your letter in response to my request dated 31 August 2001 does not address my request or the complete issues in a professional manner and you do not appreciate that you could at least make a statement of fact relating to the currency of the dealer agreement whilst you have always verbally assured me that it is of a six year duration. … 57 Mr Azzi forwarded a copy of that letter to Volvo's head office (Volvo International) in Sweden.

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Nevertheless, we can confirm that: 1. The agreement between Volvo and Tony Azzi (Automobiles) Pty Ltd 'the agreement' will remain unchanged until terminated in accordance with the terms of that agreement; and 2. Volvo will consent to the inclusion of its name and the disclosure of the principal terms of the dealer agreement in the prospectus provided that a complete copy of the draft prospectus is delivered to the company not less than 14 days before it is filed with any government agency or Stock Exchange or it is publicly released, whichever is the first to occur. 3. The original agreement, which had a one year term, will be replaced by an agreement for a further five year terms on similar terms and conditions (other than any right to have the agreement extended for a further period of five years) operating from the date of expiration of the first agreement. 60 Although TAA submits that the statement that the replacement five-year agreement would not contain provision for extension for a further period of five years was inconsistent with the extant agreement, it follows from my conclusion that the parties' agreement did not oblige Volvo to grant a renewal, that this was not in fact inconsistent with the Representation letter. I do not accept, for reasons already explained, that the Representation letter conferred upon TAA a right to have a further renewal of the five-year agreement. I therefore do not accept that the 7 September 2001 letter evinces an intention by Volvo not to be bound by the Representation letter; to the contrary it accords with the Representation letter and evinces an intention to perform it. 61 On 10 September, Bamford Hogg, acting for TAA, sent a facsimile to Volvo, relevantly as follows: I am instructed that Mr Azzi spoke with Mr O'Keefe earlier this morning prior to his departure to Hong Kong and informed him that in the absence of Mr Azzi that I was to undertake carriage of this matter with Volvo with a view to discussing the terms of the letter dated 07/09/01 from Mr Paul O'Keefe to Mr Azzi (which I understand was in fact faxed to Mr Azzi on 09/09/01). I have made three telephone calls to Mr Paul O'Keefe requesting (by leaving messages on his voice mail) that Mr O'Keefe call me in relation to the letter. I have not heard from Mr O'Keefe and therefore I called you to discuss the matter at 1.45 p.m. and left a message with one of your secretarial support staff that you call me on an urgent basis. In the context of the progression of the float of our client's company the position with Volvo is assuming a great deal of urgency. It is anticipated that it will become critical by the end of work hours today if the position between Volvo and our client is not clarified. I would note that the letter dated 7 September 2001 placed in jeopardy the ability of our client to progress the proposed public listing. This will be causative of substantial loss to our client company and its shareholders. 62 On 11 September 2001, Mr Azzi wrote to Mr Desselss, to record his concern at the approach adopted by Volvo. While the letter was mainly concerned with issues pertaining to the Hong Kong float, it included relevantly: 4. In relation to the terms of the material contracts that are to be set out in the prospectus, please note that the five year agreement is long overdue and it is a matter which should have been attended to by Volvo before the expiry of the initial agreement as provided for in the letter dated 16 August 2000. … 10. If the abovementioned could not be achieved, then my company will consider its position in light of the statement contained in the letter dated 5 September to the effect that my company is not entitled to the further five year term. The fact that Volvo has subsequently sought to confirm the five year term on a conditional basis as set out in the letter dated 7 September is noted but is not acceptable in the light of the position as we see it. I look forward to advancing our discussions as soon as possible whilst all of my company legal rights are expressly reserved. 63 Mr Azzi's 11 September letter to Mr Desselss proceeds not on the basis that Volvo did not intend to perform its obligation, but that Volvo was offering a replacement five-year term, albeit on a conditional basis. The only respect in which the confirmation of the five year term was on a conditional basis was that it would not contain any right to have the agreement extended for a further period of five years; as I have sought to explain, that involved no departure from or inconsistency with the Representation letter. The letter reads as a continuation of a negotiation process in the context of the commercial dispute. 64 On 12 September 2001, Clayton Utz for Volvo wrote to Mr Bamford, relevantly as follows: We are instructed to confirm that the letter which your client Tony Azzi (Automobiles) Pty Limited received from Volvo dated 5 September 2001, was sent in error and should be ignored. We note that Mr Azzi was informed of this fact shortly after the letter was sent. We note that, pursuant to the terms of the letter from Volvo to your client dated 16 August 2000 (accepted by your client on 16 September 2000), the initial Dealer Agreement was to run for a period one year which agreement was then to be replaced by a Dealer Agreement with a term of five years. We confirm, as we informed you during our telephone conversation call on Monday afternoon, that we believe that the term of the first Agreement ran until 30 June 2001 and that accordingly the term of the five year Dealer Agreement commenced on 1 July 2001. In light of the application of the Franchising Code of Conduct to the arrangements between our clients, and as we indicated during our telephone call on Monday, Volvo will provide your client with a disclosure document prepared in accordance with the Franchising Code of Conduct, before the parties execute an appropriate document reflecting the terms of the current agreement between the parties. … As stated in our client's letter sent on 9 September 2001, Volvo will consent to the inclusion in your client's prospectus of its name and to disclosure of the principal terms of the agreement between Volvo and your client, subject to receiving a copy of the prospectus within the timeframe indicated in that letter for review by our client. Volvo has no in principle concern with the disclosure of material terms of the agreement in accordance with the law applicable to that prospectus, provided that Volvo first has opportunity to consider (and if necessary to comment upon and require appropriate amendment to) the form and context in which such disclosure is made. 65 This letter is an unequivocal statement of Volvo's intention to abide by the contract and to grant a five-year term. Then, on 13 September 2001, Clayton Utz wrote to Mr Bamford in response to Mr Azzi's 11 September letter to Mr Desselss, relevantly as follows: 4. This issue is addressed to our open letter of yesterday's date. … 7. We note that while Volvo was of the view that TAA has not met and is not meeting certain of its obligations under the agreement, the agreement remains on foot. Accordingly, we assume that TAA will continue to honour its obligations under the agreement. For its part, Volvo will continue to honour its obligations and act in accordance with the agreement. … 10. We believe the matters raised in the correspondence are now clarified.

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67 By facsimile dated 13 September 2001, Volvo International in Sweden acknowledged receipt of a copy of Mr Azzi's letter of 6 September to Mr Snijders. On 20 September, Mr Azzi wrote direct to Volvo International, expressing his disappointment with the current management of Volvo Australia, and in particular "the ever-changing position of Volvo relating to the status of the dealer agreement". Although referring to Mr O'Keefe's letter of 7 September 2001, which confirmed that the original agreement would be replaced by a five-year agreement, it did not refer to the Clayton Utz letter. It did refer to the 5 September letter, without mentioning that it had been sent in error and withdrawn. It concluded: I am prepared to travel to Sweden, if necessary to have a meeting with the relevant executives to resolve the issues in dispute. Unless I hear from Sweden within five business days of the date of this letter, I would have no further option but to initiate legal proceedings against VCA to recover losses and damages as a result of its acts and/or omissions. 68 On 21 September 2001, Volvo submitted to Mr Azzi a draft five-year dealer agreement and a disclosure document for franchisees, asking that he review the documents for at least fourteen days, seek any appropriate advice on them, and then return a copy of the letter of acknowledgment. The draft five-year dealer agreement that accompanied that letter contained a provision that permitted termination on 120 days notice without cause. The letter concluded "Should you have any queries please do not hesitate to contact me on the above phone number." 69 On 26 September 2001, Volvo International sent a fax to Mr Azzi, acknowledging receipt of his letter of 20 September and advising that they were in contact with Volvo Australia and when in receipt of information would respond further. On 27 September Mr Snijders, having been informed of the letter of 20 September to Volvo International, wrote to Mr Azzi, proposing to meet urgently "to get the issues resolved". Mr Azzi replied on 28 September: I will inform you on Wednesday 3 October 2001 as to whether I am prepared to meet with you to discuss what you have described as "the issues". 70 On 3 October 2001 Mr Azzi wrote to Mr Snijders that he was prepared to discuss all outstanding issues but not with Mr Snijders, and suggested that a meeting be arranged in his absence with Volvo to be represented by someone Mr Azzi considered neutral. He sought a response by 5 October. On 4 October, Volvo International responded that they had full confidence in Mr Snijders, and that Mr Azzi should discuss the issues with Mr Snijders. 71 On 8 October 2001, Blake Dawson Waldron on behalf of TAA wrote to Volvo, relevantly as follows: … Your company has agreed to enter into a five year franchise agreement, commencing on 1 July 2001, with our client in the terms of the earlier one year agreement which concluded on 30 June 2001 other than a term entitling our client to extend the agreement for a further five years. Alternatively, your company has, in fact, entered into such an agreement with our client. With your company's letter of 21 September 2001, you submitted the formal document to give effect to the agreement. That document did not provide for a five year term but provided that the franchise could be terminated by your company on 120 days written notice (clause 24(5)). The requirement for such a change is clear evidence of your company's intention to repudiate both, or either, of the agreements to which we have referred. Our company has given your company the opportunity to reconsider its position, which you rejected. We are instructed to inform you that our client accepts the repudiation and proposes to sue for damages. … 72 There is in fact no evidence that Volvo was given the opportunity to reconsider its position about the 120-day notice provision, and I accept that it was not afforded any such opportunity. 73 The thrust of TAA's case on repudiation is that, at the time of the Representation letter in September 2000, the combination of the Representation letter and Mr O'Keefe's representations to the effect that the one-year agreement was a stop-gap measure so that all three dealers could be brought into line, had the effect that the issue of a five-year agreement when all dealers were in line was a mere formality. Then, come 30 June 2001 by which time there ought to have been a five-year dealer agreement in place, no such agreement was issued, and when the matter was pursued, the answer was that no such agreement is guaranteed. Then after some dispute, when the attention of Volvo was ultimately drawn to the Representation letter, the response was that it would grant a five-year dealer agreement, but subject to a three month probation period. Then, in response to the suggestion that that was not what the Representation letter called for, a five-year agreement was provided, but one that was terminable on 120 days notice. There was thus a protracted course of conduct extending over a period of three months in which Volvo one way or another repeatedly avoided unequivocally putting a five-year dealer agreement on the table. Mr Trew submits that this sequence of events must be viewed as a whole, and in the context that Volvo knew that TAA was trying to float in Hong Kong and needed Volvo's approval to a statement in the prospectus about the terms of the dealer agreement. He submits that, by September, Mr Azzi was receiving contradictory signals from Volvo about the agreement - in that when he was spoken to he was told he had an agreement (for a further five years), but in writing was told that there was no agreement or no guarantee of one and that he was in breach of the existing agreement. In those circumstances, so it is said, Mr Snijders could not be trusted and Volvo was not negotiating in good faith, and the inclusion in the draft five year agreement of the 120-day notice provision, coupled with the insistence of Volvo International that TAA would have to sort out its issues with the management in Sydney, was, so it was said, the last straw. 74 Repudiatory intent is not lightly to be inferred [Ross T Smyth & Co Ltd v TD Bailey Son & Co [1940] 3 All ER 60, 71; Rosser v Maritime Services Board (No 2), p32; Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194, 212; Auburn Council v Austin Australia Pty Ltd (in liq) [2007] NSWSC 130, [49]-[51]]. It is not in doubt that an accumulation of conduct by a party to a contract may amount to a repudiation, although no individual act can be identified on its own as doing so; and that repudiation may be established not only by conduct that evinces an intention not to perform the contract, but also by conduct that evinces an intention to perform it only in the manner in which it suits that party to perform [Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, 647-9 (Brennan J)].

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77 TAA submitted that it was inconsistent with the Representation letter's provision for a replacement term of five years that the dealer agreement could have a termination provision in it. But it is a characteristic of a Masters v Cameron class four contract that provisions different from or even inconsistent with the original agreement can be included, by consent, in the final agreement, and in this case the parties contemplated that provisions for termination might be included in the dealer agreements. The contention that submitting a draft five-year agreement that included a provision for termination on 120 days notice was repudiatory, is inconsistent with the basis upon which the agreement contained in the Representation letter was enforceable - namely, under the fourth class of Masters v Cameron, that the parties envisaged further negotiation as to provisions for renewal, non-renewal and termination. As Mr West points out, the parties had not yet negotiated the terms of the five-year dealer agreement. Given that the Representation letter left open for negotiation what provisions - particularly as to renewal, non-renewal and termination - would be included in the dealer agreement, there was no reason to assume that the five-year dealer agreement would be identical to the one-year dealer agreement save for its duration. Any provision that authorised termination in less than five years was, in a sense, inconsistent with an agreement to grant a five-year agreement, but it is plain from the Representation letter that the parties contemplated that the five-year dealer agreement might include provisions for termination. By proposing such a provision, Volvo was not acting inconsistently with the Representation letter, and cannot be said thereby to have evinced an intention not to be bound by the agreement contained in it. [Mr Azzi suggested that any termination clause would be limited to one that was standard by industry practice. Although I do not accept that proposition, even if correct it would not assist TAA's case, as TAA's dealership agreement with Honda included a provision for termination without cause on 120 days notice]. There is no reason to limit the reference to "termination" in the second limb of requirement 2 in the representation agreement to "termination for cause"; the parties reserved to themselves the ability to agree on any type of termination provision in the subsequent documentation. [While submitting that no provision for termination could be proposed by Volvo except those which were already in the one year agreement, TAA did not submit that no provision for renewal could be proposed other than what was in the one year agreement (there being none). Indeed, on Mr Trew's submission - which I do not accept - although Volvo was bound to include in the draft a provision for renewal (and, it would seemingly follow, provisions for non-renewal and termination), TAA was not obliged to accept whatever Volvo proposed in that respect; if the parties could not agree on a provision, then the Representation letter continued to cover the situation]. The letter that accompanied the draft five-year agreement - Mr O'Keefe's letter of 21 September - did not present the draft lease as a take it or leave it proposition; it invited further discussion. If the draft submitted were unacceptable, by reason of the inclusion of the 120 day notice provision or otherwise, then TAA's proper course was to reject, or propose amendments to the draft, on the basis that it did not accurately reflect the parties' agreement. If TAA did not accept the provisions of the draft five-year agreement, it continued to have its five-year rights under the Representation letter. I do not accept that by sending to TAA a draft five-year dealer agreement and other relevant documents albeit including the 120-day termination notice provision, inviting TAA to take at least fourteen days to consider them and take advice and contact it should it have any queries, that Volvo thereby engaged in repudiatory conduct.

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78 In my view, therefore, the evidence does not establish that as at 8 October 2001 Volvo was evincing an intention that it would not perform its contractual obligation by granting TAA a five-year dealership from 1 July 2001. Even if it had previously engaged in conduct that might have conveyed that intent, it had resiled from it by 7 September. Far from evincing an intention not to be bound, the Clayton Utz correspondence of 12 and 13 September manifested an acceptance that Volvo was bound, and an intention to perform, and effectively acknowledged that TAA already had their replacement five-year term, all that remained to be done being appropriately to document it. In the absence of further agreement, Volvo was not bound to include a provision for renewal, but it was entitled to negotiate for provisions both for renewal and for termination. Inclusion of a 120-day termination on notice provision in the draft was consistent with the intention of the parties that there be further negotiation as to, inter alia, provisions for termination. 79 Accordingly, I am unable to accept that there was any repudiation available to be accepted by TAA as at 8 October 2001. As the parties never agreed on what provisions should be included in the five-year agreement as to renewal, non-renewal or termination, their position remained governed in those respects by the Representation letter insofar as it made any provision, and, insofar as it did not, by the operation of law. It follows that as at 8 October 2001, there was no repudiation by Volvo available for acceptance by TAA, and TAA was not entitled to termination for repudiation as it purported to do. Did Volvo engage is misleading and deceptive conduct? 80 TAA and Harissa allege that Volvo is liable to them for having engaged in misleading and deceptive conduct, in that in reliance upon representations to the effect that TAA would be granted a Volvo dealership for a one-plus-five-year term in respect of the Sydney South Eastern (including Southern Suburbs) Area of Responsibility (SSE AOR), TAA commenced trading as a Volvo dealership and incurred trading losses, and Harissa incurred expenditure in upgrading the Rosebery premises, in particular in establishing a temporary Volvo showroom and subsequently the second Volvo showroom. 81 Mr Azzi's evidence of the representations insofar as they were oral being uncontradicted, and the documentary evidence - in particular the various iterations of the Representation letter - establishing them insofar as they were written, I accept that representations to that effect were made. However, while the evidence makes good the proposition that Volvo represented to TAA that it would grant TAA a dealership for a term of one year to be replaced by a term of five years in the SSE AOR, I do not accept that there was any representation that the one-year and five-year agreements would contain a provision for renewal, nor that they could not contain a provision for termination other than for cause: they might if the parties so agreed, but otherwise would not.

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82 Although the representations were made to TAA, and Mr Azzi on behalf of TAA, and not (at least directly) to Harissa, compensation may be recovered under Trade Practices Act, s 82, in respect of a contravention of s 52, by a person who relies on a misrepresentation if the representation was made in circumstances that were calculated to result in its being transmitted to persons including the victim, even though the representor never dealt directly with the victim [Milner v Delita Pty Ltd (1985) 61 ALR 557, 573-4 (Lockhart J); Accredited Aged Care Facilities Pty Ltd v Banyan Tree (Australia) Pty Ltd [2002] VSC 261, [95] (McDonald J); Emanuele v Chamber of Commerce & Industry SA Incorporated [1994] ANZ ConvR]. The originator of a misrepresentation, who does not itself convey the representation to the relevant audience, may be liable under s 52 if the intermediary was merely the convenient medium by which the misrepresentation was conveyed to the public (so that the wholesaler of goods who marks them with deceptive claims may be liable for damage suffered by members of the public who buy the goods from a retailer without ever dealing with wholesaler) [Barton v Croner Trading Pty Ltd (1984) 3 FCR 95; 54 ALR 541, 553], although that will not be so where the originator does not engage in conduct calculated to put the representation into circulation. In Milner v Delita, Lockhart J explained the basis of liability in such circumstances in terms of an implied intention of the originator that the representation be passed on to others (at ALR 573-4): Some wives of investors who themselves invested in the project with their husbands did not see or read any of the documents but relied on discussions with their husbands. They too should succeed in this case. It is a commonplace today for investments to be made by or in the names of various members of a family or of family companies or trusts. Indeed, the brochures not only recognized but suggested this course in the present case. I am satisfied that Delita, Glasson, Lewin, Morrison and Bennett were well aware of the likelihood that the documents or their contents, and any oral representations that may be made by or on behalf of Robert Morrison & Associates, would be passed on to or come to the attention of such members of the family of clients of Robert Morrison & Associates or members of the family of those who otherwise got in touch with the firm. Indeed, they supported and adopted this course of conduct. The forms of application to join the trusts and partnership and the moneys in support of them were all received and the moneys used and applied to the knowledge of Glasson, Lewin, Delita, Morrison and Bennett. I adopt as a correct statement of the law the following passage from Spencer Bower and Turner on Actionable Misrepresentation 3rd ed, para 165: "But, further, even where B is not known or believed to be, and is not in fact, the principal or partner of, or otherwise associated with A, the representor may yet either accompany his representation to A with a direct instruction or authority to repeat it to B, or make it with an implied intent that it shall come to the notice of B, and be acted on by him - such implication being made from the representor's express declarations or admissions, or from his making the representation with knowledge that A intends to pass it on to B, for him to act upon, or with knowledge subsequently acquired, but before B has acted upon it, that A has so passed it on to B for that purpose. In any such case B is deemed to be the representee, if and as soon as the representation has been so passed on to him, and he has altered his position on the faith of it, whether A is or is not also to be accounted a representee, which depends upon the question whether he was intended solely as the living medium of communication, or as a person himself to be influenced by the statement, as well as the transmitter of the influence to B, which again depends upon all the circumstances of the individual case. Whenever such intention is neither established directly by evidence, nor as an implication from the proved or admitted facts, B is not in law the representee; A, of course, is; but, in most of the cases which raise the question, he fails on the ground that he was not the person injured."

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84 Volvo knew - indeed required - that works would be carried out on the Rosebery premises, and knew or ought to have known that TAA's related company Harissa was the owner of the Rosebery premises, and that Harissa relied on the representations in undertaking work and incurring expenditure on the Rosebery property. It was plainly foreseeable that the representations would be brought to the notice of whatever entity in the Azzi group owned the property. 85 However, insofar as the alleged representations were made, it has not been established that they were false or misleading. Mr Trew relied on Trade Practices Act, s 51A, for the submission that Volvo not having put forward any evidence that it had reasonable grounds for making the representations, it was to be deemed to have none, and the representations were to be taken to be misleading. 86 I do not agree. I accept that the representations related to a future matter, in that they were a promise to grant TAA rights in the future. Reasonable grounds for making such a representation include that the representor have the intention and capacity to perform the promise. 87 Section 51A(2) places an evidentiary onus on a defendant to adduce evidence of reasonable grounds. That evidence need not come from the persons who made the representation, and need not be testimonial: the existence of factors which would establish reasonable grounds may more often more reliably be ascertained from the overall probabilities to which the circumstances of the case give rise, the background and the conduct of the parties prior to the relevant communications [Cummings v Lewis (1993) AZTPR (Digest) 46-103]. The tender bundle contains extensive documentary material, tendered by both parties, from which the plain inference is that when the representations were made, Volvo had every intention of granting TAA a one-plus-five-year dealership in the SSE AOR, and had the capacity to do so. It was part of Volvo's "master plan" for Sydney to do so; and its capacity to do so is self-evident. To the extent that any such documents are to be regarded as having been tendered only by the plaintiffs, it would be artificial in the extreme to require that Volvo tender them a second time to comply with s 51A(2). Accordingly, on the documentary evidence tendered by Volvo as well as by the plaintiffs, I find that Volvo had reasonable grounds for making the representations when they were made. 88 Even if that conclusion be incorrect, the claims for damages would fail at the hurdle of causation. Even if the representations are taken to have been misleading for lack of reasonable grounds when they were made, the conclusions I have reached on the contract and repudiation issues destroy any argument that loss was suffered as a result. If a prediction that is made without reasonable grounds nonetheless turns out to be accurate, the contravening conduct causes no loss or damage. Similarly, if a promise made without reasonable grounds is nonetheless performed, no damage results from the misleading and deceptive conduct. The fact that there were not reasonable grounds for it when it was made becomes a causal irrelevance if it in fact is performed. Here, I have concluded that Volvo was, by October 2001, ready willing and able to grant TAA a dealership as represented. The reason it did not do so had nothing to do with any insufficiency of grounds for making the representations when made, but everything to do with TAA's decision to terminate the arrangements. 89 On the documentary evidence tendered by Volvo as well as by the plaintiffs, Volvo had reasonable grounds for making the representations when they were made. Accordingly it did not engage in misleading and deceptive conduct. Moreover, any absence of reasonable grounds was causally irrelevant to any loss suffered by TAA or Harissa, which was occasioned by TAA's termination of the contract. Did Volvo engage in misleading conduct that derailed the Hong Kong float? 90 In the second (at least chronologically) part of the Trade Practices claim, TAA claims that Volvo is liable for misleading and deceptive conduct, in that by making representations after 1 July 2001, to the effect that TAA was not entitled to a further five year dealership - when, on TAA's case, and as I have found, it was so entitled - Volvo engaged in misleading conduct, which caused the sponsors of the proposed Hong Kong float to abandon it. Although originally the damages claimed extended to the financial benefits which it was said would have flowed to TAA from the float, ultimately the claim was formulated as one for the fees for professional services (including merchant bankers, brokers, underwriters, accountants and legal advisors) related to the float, which TAA says it would not have incurred but for its belief that it had an agreement with a five-year term. Accordingly, the ultimate question is whether TAA's expenditure on the float was wasted, as a result of Volvo engaging in misleading conduct by making representations to the effect that TAA was not entitled to a replacement five-year term. 91 In about May 2001, Mr Azzi determined to seek to have the Larke Hoskins Group listed on the "Second Board" (known as the Growth Enterprise Market) of the Hong Kong Stock Exchange. In June 2001, Mr Azzi on behalf of TAA engaged Oriental Patron, a Hong Kong merchant bank, as sponsors and underwriters for the float. Mr Azzi's vision was to establish car dealerships in the south China region. The vehicle was to be a company to be incorporated in Bermuda, the Peoples Republic of China or the Cayman Islands, and in due course, on about 16 August 2001, Tengda International Holdings Limited was incorporated in Bermuda for that purpose. Mr Azzi planned to retain at least 51% of the company, and separately to retain control of the real estate in Australia, which would not form part of the listed company's assets. He had what he regarded as solid long-standing relationships with Honda and with Mercedes Benz, and although his relationship with Volvo was in its early stages and there were some teething problems, he thought it strong and likely to grow. 92 On 18 June 2001, Oriental Patron issued a "mandate letter", agreeing to act as sponsor, lead manager and book runner for the proposed float of Larke Hoskins on the GEM. Mr Azzi signed the mandate letter on 30 July 2001 and paid the upfront fee of HK$350,000. Solicitors were retained in Hong Kong (Jennifer Cheung & Co), Australia (Blake Dawson Waldron) and Bermuda (Conyers Dill & Pearman); and accountants (Arthur Anderson) in Hong Kong and Sydney. On 16 July 2001, Oriental Patron and Arthur Anderson visited Larke Hoskins in Australia, and undertook work relating to preparation of the prospectus. The proposed timetable for the listing required an application with a final draft of the listing document by 6 September, to go before the listing committee on 16 October 2001. 93 On 21 August 2001, Mr Azzi sent letters to various international car manufacturers in relation to the prospect of Larke Hoskins obtaining franchise rights for them in China. The addressees were Volkswagen AG, BMW AG, Daimler-Chrysler AG, Audi AG, Toyota-Cho, Honda Motor Company, Volvo - Sweden, Mazda Motors (South China) Limited, BMW China, Honda Guangzhou Motors Co Ltd and Chrysler. Letters were also sent to Honda, Mercedes-Benz and Volvo seeking their consent to the inclusion of their names and disclosure of the principal terms of their dealer agreements in the prospectus. Thus, on 22 August, Mr Azzi wrote to Mr Snijders of Volvo, relevantly as follows: Application for listing of Tony Azzi (Automobiles) Pty Ltd trading as "Larke Hoskins" on the Growth Enterprise Market of the Stock Exchange of Hong Kong Limited We refer to the dealer agreement (the "agreement") entered into between your company and ours signed on 16 September 2000. We are pleased to advise you that our company is in the process of preparing for the listing of its shares in the Growth Enterprise Market of the Stock Exchange of Hong Kong Limited. As advised by the sponsor for the company, the project is expected to be completed by the end of the year 2001. … Please kindly sign and return to us a copy of this letter to confirm that the dealer agreement between your company and Tony Azzi (Automobiles) Pty Ltd will remain unchanged until terminated in accordance with the terms of the said agreement and that your company agrees to the inclusion of its name and disclosure of the principal terms of the dealer agreement in the prospectus. We look forward to receiving the new five year dealer agreement. 94 Subscribed to the letter was an acknowledgement for signature on behalf of the addressee as follows: We acknowledge receipt of this letter and confirm that we have no objections to the proposed restructuring of Tony Azzi (Automobiles) Pty Ltd and its subsequent listing on the Stock Exchange of Hong Kong Limited as stated in this letter. 95 Volvo's reply of 31 August 2001 included that "with regard to our inclusion within the prospectus documents, we confirm that at the current time our dealer agreement has expired and that the provision of a five year agreement is not yet guaranteed". 96 Mr Azzi says that TAA would not have incurred the fees for professional services (including merchant banks, brokers, underwriters, accountants and lawyers) that it incurred relating to the float and wasted when the float did not proceed, but for Volvo's representations that he had an agreement with a five-year term. I have found that that representation was not misleading, and no entitlement to damages can therefore flow from reliance on it. However, the conduct said by TAA to have been misleading comprises the Volvo letter of 31 July 2001, the Volvo letter of 31 August 2001, the Volvo letter of 5 September 2001, and the Volvo letter of 7 September 2001. Mr Leung of Oriental Patron says that having been provided with the Volvo letters of 31 August, 5 September and 7 September, he determined that the float could not proceed, a view that Oriental Patron communicated to TAA by letter dated 10 September 2001. He says that he reached that view on or shortly after 31 August 2001, because, "according to those letters, I thought actually the relationship between Mr Azzi and Volvo was not really good and, anyway, they have a dispute. So at the time, if I thought there was any risk, I would not go further through the process until they can settle".

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98 Consideration of whether conduct is misleading within Trade Practices Act, s 52 and its equivalents requires precision in identifying the conduct in which the defendant is said to have engaged, and the audience and context in which it takes place. What may be misleading in one audience and context is not necessarily misleading in another, and consideration must be given to the class likely to be affected by the conduct in question [Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 199]. Where the conduct is directed not at the public at large but to identified individuals, the potential for it to mislead or deceive must be judged in the context of those individuals [Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592]. 99 Volvo's 31 July 2001 letter, which asserted that "our original agreement expired on 1 July 2001", and that at present Volvo did not see themselves in a position to renew the agreement and proceed with the partnership, was addressed to Mr Azzi at TAA. It was a "private" communication. Volvo did not then even know of the proposed float, and cannot have supposed that this communication would be passed on to Oriental Patron or anyone else. The only conduct in which Volvo engaged was sending the letter to Mr Azzi. Although on my findings the letter misconceived the position so far as TAA's entitlement to a five-year agreement was concerned, Volvo's conduct in sending it to Mr Azzi could mislead no one. In any event, it does not appear that the 31 July letter was in fact communicated to Oriental Patron. Volvo did not engage in misleading conduct by communicating its contents to Mr Azzi, and Volvo communicated its contents to no one else. 100 The 31 August 2001 letter, in asserting that the provision of a five-year agreement was not yet guaranteed, again misconceived the position as I have found it to be. But it too was a communication only to Mr Azzi at TAA, in response to a letter from him. It was not addressed to Oriental Patron or anyone else. As with the 31 July letter, a statement to Mr Azzi of Volvo's position was not going to mislead Mr Azzi, who had his own firm view of the position. 101 The 5 September letter again contained statements which reflected a misconception of the true position between the parties, in indicating that issues had not been sufficiently resolved to enable a renewal of the dealer agreement, and that a three month probationary period would be imposed. It did not refer to the proposed float, and arose out of the consideration that Volvo was giving to TAA's performance under the dealership to date. It referred to the letter of 31 July and Mr Azzi's response of 15 August, but not to his letters of 24 August or Volvo's of 31 August. It was plainly a communication to Mr Azzi at TAA alone. As with the 31 July and 31 August letters, stating Volvo's position - albeit a misconceived one - to Mr Azzi was not going to mislead him. And as has already been mentioned, the 5 September letter was withdrawn almost as soon as it was received. 102 As to the 7 September letter, it stated that the original agreement would be replaced by an agreement for a further five-year term on similar terms and conditions (other than any right to have the agreement extended for a further period of five years). On the conclusions I have reached as to the terms of the contract, this was not inaccurate. The 7 September letter also recorded: As you are aware, Volvo believes that Tony Azzi (Automobiles) Pty Ltd is in breach of certain of its obligations under the agreements. Volvo assumes that this fact will also be disclosed in the prospectus. 103 That was a statement of what Volvo believed. It was addressed to Mr Azzi at TAA. It has not been shown that Volvo did not hold that belief, and it has not been shown that TAA was not in breach of certain of its obligations. It is not to the point that Volvo has not pleaded that TAA was in breach of its obligations; the onus of proving that a representation is false, at least save where s 51A can be invoked, is on the plaintiff; and in this case that onus is the relatively difficult one of proving a negative. 104 The only one of the four letters that Volvo might reasonably have thought would be passed on to Oriental Patron is that of 7 September 2001. It contained no relevant misstatement. As to the other three letters, there is no basis for finding an implied intent on the part of Volvo that they would be brought to the attention, nor that it was reasonably foreseeable that they would come to the notice, of others - in particular, Oriental Patron. It does not follow from Mr Snijders' acknowledgement in the course of his evidence that if the prospectus had gone ahead at that stage, it would have had to disclose that there was no five-year agreement guaranteed, that Volvo engaged in any misleading or deceptive conduct: even if Volvo was aware that the Volvo letters might be passed on, this was not a case in which it effectively put into circulation a misrepresentation: the letters contained a statement of Volvo's position, in the context of the commercial dispute, and whether they were passed on was entirely in the control of the addressee, TAA, which could do so with any qualifications or disclaimers that it might wish to add. 105 For a party to a dispute or negotiation to state its position to the other, even though its position is a misconceived one, is not misleading. Such a statement is understood by the recipient as a position statement, not a reliable representation that the position adopted is the one true position. The Volvo letters contained assertions made in the course of a commercial dispute by one party to another of its position or stance. The recipient TAA would have understood them as containing a statement of Volvo's then position, rather than as a representation that it was the one true position. At the highest, they represented that Volvo believed the position to be as stated, not that the position was in fact and law as asserted. By providing the 7 September letter to TAA, Volvo did not engage in misleading conduct.

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106 Moreover, by 11 September 2001, the listing was already not "on track" according to the timeline. Mr Leung also said that despite the decision not to proceed further on 11 September 2001, that decision could be reversed and the matter reinstated if TAA settled its dispute with Volvo and Volvo was willing to continue the agreement for a further five years. The prospect of reinstating it was lost a month later, when TAA terminated its relationship with Volvo. Even if Oriental Patron had not withdrawn its support for the float when it did, similar circumstances would have caused it to do so, and the float would have been derailed in any event, by that termination, regardless of the "Volvo letters". Accordingly, even if there had been misleading conduct on the part of Volvo in the respects alleged, I would not accept that TAA has suffered damage as a result, because the float would have been derailed, and the expenditure wasted, as a result of the termination of the relationship in early October, in any event. Harissa's tort claim 107 Harissa contends that by repudiating its contract with TAA, Volvo breached a duty of care allegedly owed to Harissa to perform its obligations under the contract with TAA, and that as a result of that breach of duty, Harissa suffered damage - including loss of rental that would have been earned during the currency of the dealership agreement, expenditure incurred by Harissa in establishing the temporary Volvo showroom and service facilities and the permanent showroom and service facilities, and loss of the ability to recoup over the full term of the contract the expenditure and start up costs and losses incurred by Harissa in redeveloping the premises for the purpose of use as a Volvo dealership. 108 The short answer to this contention is that, as I have concluded, Volvo did not repudiate its contract with TAA, even if Volvo owed Harissa any such duty as is alleged. 109 The longer answer is that Volvo owed Harissa no such duty in any event. Mr Trew submitted that a duty should be imposed because TAA were closely related companies operating for the benefit of the Azzi family, that Harissa owned the land and buildings from which TAA conducted its business, that Volvo knew or had the means of knowledge of the relationship between Harissa and TAA and that Harissa was part of an ascertainable group at risk if Volvo's conduct caused damage to TAA, and in those circumstances the likelihood of financial loss to Harissa in the event that Volvo repudiated its contract with TAA was reasonably foreseeable. Against that background, the judgment of the Queensland Court of Appeal in Fortuna Seafoods Pty Ltd v The Ship "Eternal Wind" [2005] QCA 405 was invoked. In that case, the ship Eternal Wind collided with the ship Melina T, which was owed and operated by Fortuna Fishing Pty Ltd; a related company, Fortuna Seafoods Pty Ltd, as agent for Fortuna Fishing processed and sold the fish caught by Fortuna Fishing. Fortuna Seafoods sued the Eternal Wind for damages for the loss resulting from its inability to process and market the catch, which but for the damage to Melina T, Fortuna Fishing might otherwise have made. In the Court of Appeal, the issue was whether Eternal Wind, because of its negligent conduct resulting in property loss to Fortuna Fishing and pure economic loss to Fortuna Seafoods, was liable to compensate Fortuna Seafoods in the tort of negligence. The two Fortuna businesses, though closely related, were conducted by different companies because of the operation of quotas in the industry, which created a commercial necessity for separation; but for that they could have been conducted within the one corporate framework. They were treated by their directors and shareholders as one company although with two bank accounts and separate books of accounts, so that in some respects transactions between them were at arm's length. 110 McMurdo P concluded, from Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529 and Perre v Apand Pty Ltd (1999) 198 CLR 180, that determination of whether a defendant owed a claimant a duty of care not to cause mere economic loss would depend on a combination of factors including: the reasonable foreseeability of the likelihood of harm; the defendant's knowledge or means of knowledge of an ascertainable determinate class of persons at risk of foreseeable harm; the claimant's vulnerability or whether they are unable to protect themselves from the foreseeable harm; whether the imposition of a duty would impair the defendant's legitimate pursuit of its autonomous commercial interests including the existence of any contracts between the claimant and the defendant; whether the damage flowed from the occurrence of activities within the defendant's control; the closeness of the relationship between the parties; and the existence of any other special circumstances justifying compensation (at [6]). 111 Critical to the existence of a duty of care in Fortuna was satisfaction that the Eternal Wind had the means of knowledge that Fortuna Seafoods was a member of a determinate ascertainable class of persons or entities who were at risk of foreseeable economic harm if Eternal Wind acted negligently in colliding with and sinking Melina T. That means of knowledge was found, despite the absence of direct evidence of knowledge of the commercial arrangements of the Fortuna companies, or even of the arrangements likely to apply to the ownership and operation of fishing vessels in Australia, from evidence that such arrangements were by 1997 common within the Australian fishing industry - from which it could reasonably be inferred that such information was within the means of knowledge of the Eternal Wind, which inference was the more readily to be drawn in the absence of any contradictory evidence from the Eternal Wind. Dutney J pointed out that the distinguishing feature of the case was that the catching and selling of the fish were necessarily related activities for a commercial fishing operation, and a relevant duty would less likely have been found if Seafoods had purchased the fish at arm's length from Fishing, which was not the case, because the fish were not sold, and Seafoods acted as Fishing's agent. 112 A significant distinction between Fortuna and the present case is that the relationship between Volvo and TAA was, on relevant assumptions and findings, regulated by a contract, whereas the Eternal Wind's liability to Fortuna Fishing arose in tort. It was also significant to the imposition of a duty of care on Eternal Wind not negligently to cause economic loss to Fortuna Seafoods by colliding with and sinking the Melina T, that imposition of such a duty did not impair the Eternal Wind's pursuit of its autonomous commercial interests, and that there was no contractual relationship between the Eternal Wind and Fortuna Seafoods (at [22]). 113 I would be content to accept that the relationship between Harissa and TAA, both in terms of shareholdings, and their business relationship, made them a closely integrated group, with Harissa providing the land on which the business operated for a return in rent, and also employing the staff who worked in TAA's business. I would also be content to accept that the relationship between Harissa and TAA - at least to the extent that Harissa owned the land and buildings from which TAA operated - was within the means of knowledge of Volvo: there was evidence that Volvo had been provided with information by Mr Azzi that the main facility of the business (obviously, Zetland) was "owned", and that Harissa was the "property company" within the group. 114 However, two significant distinctions deny the imposition of a duty of care to Harissa in this case. The first is that Harissa was remunerated by TAA for TAA's use of its premises by a rental calculated and valued at arm's length. As Dutney J observed (at [105]), in circumstances of arm's length dealings of that type, neither company has a direct interest in the results of the other. Harissa remained entitled to its rent, regardless of the profitability of TAA (and, in particular, regardless of whether or not the Volvo dealership continued). The second, and more significant, distinction is that whereas in Fortuna the primary liability (in that case to Fortuna Fishing) was in tort; in this case the primary liability (to TAA) was in contract. To impose on a party to a contract liability arising from breach of that contract to a third party, in circumstances where none of the recognised exceptions to the doctrine of privity apply, would impinge considerably on the ability of the first party to pursue its autonomous commercial interests, and would have the practical effect of extending the scope of liability for breach of contract far beyond its established limits. 115 Accordingly, Harissa's tort claim must be dismissed. The Industrial Relations Act, s 106, claim 116 TAA contends that the arrangements between it and Volvo were a contract (or arrangement or related condition or collateral arrangement) whereby work was performed in an industry within the meaning of (NSW) Industrial Relations Act, s 105, and that the contract was "unfair" within s 106. 117 The contract was said to be one "whereby a person performs work" in an industry by reason that it obliged TAA to develop "an appropriate management structure and general staffing" and provided that it was "essential that TAA manages and staff proactively participate in the relevant training and develop programs scheduled by Volvo", and that Mr Azzi himself was a working director. Mr Trew submitted that the word "whereby" did not require that the contract impose a legal obligation to work, and that it was sufficient that the contract anticipated that persons would work in the industry, no matter by whom they might be employed. 118 There has been extensive recent judicial consideration, in the Industrial Relations Commission, in the Court of Appeal, and in the High Court, of the limits of jurisdiction under s 106. As it seems to me, the position may now be summarised as follows. 119 The critical jurisdictional fact in relation to s 106 is the identification of a contract, as defined in s 105, whereby a person performs work in any industry. In Fish v Solution 6 Holdings Ltd (2006) 227 ALR 241, [2006] HCA 22 [see also Batterham v QSR Limited (2006) 227 ALR 212; [2006] HCA 23; Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session [2006] HCA 24; (2006) 227 ALR 190], the central question was whether the relevant contract was one whereby a person performed work in any industry. In a joint judgment Gleeson CJ, Gummow, Hayne, Callinan, and Crennan JJ, after emphasising (at [19]) that the Act was concerned with matters industrial and that what may be avoided or varied was any part of the arrangements "in accordance with" which a person performs work, the court reviewed its earlier decisions on the predecessor sections and said (at [28]): The description of a contract as "one which leads directly to a person working in any industry" is not without its difficulty. What is meant, in this context, by "directly"? As Lord Diplock, giving the advice of the Privy Council in Caltex Oil (Aust) Pty Ltd v Feenan [[1981] 1 NSWLR 169], pointed out, this, and other glosses on the section, must not be permitted to divert argument away from the words of the statute in an attempt to "construe" the words in which judges express their reasons for reaching a conclusion in a particular case. To divert attention in that way is wrong. And even the gloss on the word "whereby" offered in Caltex Oil [at NSWLR 173], (in consequence of which or in fulfilment of which), like the gloss offered earlier in these reasons (according to which), must not be misunderstood as necessarily solving every difficulty that may be presented in seeking to apply the statutory language. 120 Thus although they are not to be substituted for the words of the statute, as a general indication a contract will be one "whereby" a person performs work in an industry if the work is performed in consequence or in fulfilment of or according to the contract. A contract will satisfy this test if it leads directly to a person working directly in the industry, but it is not enough that a contract lead only indirectly to the performance of work, or merely contemplates that work will be done: the contract must "directly, that is, under or pursuant to its terms, provide for the performance of work in an industry [Production Spray Painting & Panel Beating Pty Ltd v Newnham (1991) NSWLR 644, 657 (Priestley and Handley JJA); Mitchforce Pty Ltd v Industrial Relations Commission (2003) 57 NSWLR 212, 226 [49]]. That issue has been expressed in terms of whether the relevant contract "requires" a person to perform work [Majik Markets Pty Ltd v Brake & Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443, 465A; Production Spray Painting, 657; Solution 6 (35)]. At least it is necessary that the impugned agreement or arrangement itself directly envisaged the employment of a person or persons in industry and have a recognisable impact upon the conditions of that employment [VG Haulage Services Pty Ltd Ex parte; Re Industrial Commission of NSW [1972] 2 NSWLR 81, 88; Solution 6, 217 [12]-[14]; Solution 6 Holdings Pty Ltd v Industrial Relations Commission of NSW (2004) 60 NSWLR 558, 576]. 121 It is not a jurisdictional requirement that a person performing the work be the contracting party [Mayne Nickless Limited v Industrial Relations Commission of New South Wales [2004] NSWCA 359; 141 IR 1, [46], [54]]. However, it is doubtful that the performance of functions as a director satisfies the jurisdictional requirements of s 106 as "performance of work in any industry" [Brandster v Tryak Pty Ltd (1989) 28 IR 329, 333 (Glynn J); QSR Limited v Industrial Relations Commission of New South Wales [2004] NSWCA 199 [42], [43]].

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122 A proper approach to statutory interpretation requires s 106 to be read and understood in an industrial context and within a legislative scheme relating to the performance of work, and the Commission's powers under s 106 extend only to such aspects of the contract or arrangement as closely relate to the performance of work in an industry. What emerges importantly from Fish v Solution 6 in the High Court is that the power to avoid or vary a contract within the section is limited to those parts of the arrangements between the parties according to which a person performs work. As their Honours said (at [41]): The second consideration was mentioned earlier in these reasons and is not unrelated to the first. Performance of work in an industry is the hinge about which s 106 turns. It is the arrangements (contractual and non-contractual) whereby a person performs work in an industry that the commission may avoid or vary. That is, it is the arrangements (contractual and non-contractual) according to which a person performs the work (or in consequence of which or in fulfilment of which a person performs that work) which may be avoided or varied. And although the notion of "avoiding" an arrangement that is not enforceable may be awkward, determining that some new arrangement will obtain for the future (thus "varying" the arrangement) presents no such awkward juxtaposition of ideas. Further, to focus attention upon the arrangements whereby a person performs work in an industry, no matter whether the arrangement is found in the contract the parties have made or only in some related condition or collateral arrangement, sufficiently meets the need, identified by Barwick CJ in Brown [at CLR 164; ALR 320], to recognise that these provisions of the Act have, as one important purpose, dealing with subterfuges which take workers outside the operation of industrial instruments intended to protect workers in an industry. At the same time, to read s 106 as hinged about performance of work in any industry and empowering the commission to deal only with such of the arrangements between parties as can be described as a contract whereby a person performs work in any industry confines the jurisdiction of the commission to declare a contract void or to vary it within bounds that leave intact the jurisdiction of the Supreme Court over other kinds of contractual obligations. 123 Section 106 does not authorise a finding of contractual unfairness in a particular case based on no more than conduct in breach of contract for which there is an adequate remedy under the general law. A contract is not unfair whenever it leaves the employee to remedies under the general law. Before it could be unfair on that basis there would need to be a finding that those remedies were relevantly inadequate or unfair in regard to the contract at hand, and it is doubtful that even that type of finding is within the contemplation of the section [Sydney Water Corporation Limited v Industrial Relations Commission of NSW (2004) 61 NSWLR 661]. 124 The clarification by the High Court in Fish v Solution 6 that the power to avoid or vary a contract within s 106 is limited to those parts of the arrangements between the parties according to which a person performs work facilitates resolution of the issue in the present case. The parties to the relevant contract were TAA and Volvo. TAA was appointed a non-exclusive dealer for the sale and servicing of cars and the sale of products in the relevant AOR, and agreed to promote and market Volvo's products. The contract obliged TAA to employ "such adequately trained and experienced sales and service personnel as may be necessary to ensure that the dealer provides to its customers the highest standard of service and to properly perform all of the dealer's duties, obligations and responsibilities pursuant to this agreement". 125 The work in TAA's business was performed by some 194 persons, employed not by TAA but by Harissa as trustee of the Tacasa Service Trust. Those employees apparently included Mr Azzi. Although the Representation letter contained provisions to the effect that it was essential that TAA managers and staff proactively participate in the relevant training and development programs scheduled by Volvo, and that TAA submit "a detailed management and staffing structure" for approval and appoint a dedicated general manager with responsibilities for all functions of the Volvo business, these were not provisions according to which the staff worked in TAA's business: they worked under and according to their employment contracts with Harissa. Insofar as it provided for the "management" of TAA by Mr Azzi, it did not regulate the conditions according to which he worked; moreover, that it contemplated his involvement as a director does not make it a contract whereby he worked in an industry [Brandster v Tryak; QSR Limited v Industrial Relations Commission]. 126 In the relatively early decision of D&G Motors Pty Ltd v Capitol Motors Ltd [1973] AR (NSW) 806, Watson J held that the predecessor section, (NSW) Industrial Arbitration Act 1940, s 88F, did not confer jurisdiction to give relief in respect of a motor dealership franchise, which was: … a contract or arrangement in the everyday commercial sense of the word dealing with the provision of goods and services. It is consequential and incidental to that main purpose only that persons are employed. It is not a situation to which s 88F is directed. 127 His Honour's approach sits comfortably with recent authority in respect of s 106, including McDonald's Australia Ltd v Industrial Relations Commission of NSW [2005] NSWCA 286 and Solution 6. As his Honour said, the arrangements could not be described as a "cover for a one man or even perhaps a two man enterprise whereby the persons concerned may be said under the arrangement to be required directly to work in an industry". 128 While the arrangements between Volvo and TAA required TAA to appoint a general manager and obtain approval of a management and staffing structure, they did not prescribe, and had no impact on, the conditions of employment of anyone who performed that work. They were not arrangements "whereby" any person performed work. Accordingly, the contract between Volvo and TAA was not one whereby any person performed work in an industry. 129 If I be wrong in that conclusion, nonetheless the relief sought is not in respect of any provisions of the contract which relate to the performance of work in an industry. Avoiding or varying the arrangements between Volvo and TAA that required TAA to appoint a general manager and obtain approval of a management and staffing structure would not avail TAA, and is not the relief that TAA seeks. 130 The "unfairness" for which TAA contended was apparently two-fold: · If it were found that the contract did not require there to be renewal of the five-year agreement, that was unfair, because it was contrary to representations made to the effect that there would be such a renewal, and anything less than that would not provide a fair return on the investment; · If there were a contract, nonetheless its terms were inadequate to spell out clearly TAA's rights and thus enabled Volvo to dispute them, the unfairness lying in the contract's failure precisely to provide for the rights of the parties in such a way as to avoid disputes between them. 131 As to the first suggested basis of unfairness, my conclusion that the contract did provide for a replacement five-year term is a complete answer. Breach, or repudiation, of a contract by a contracting party does not make the contract unfair [Sydney Water, 661]. As to the second, a contract is not relevantly unfair because its terms are not precise. Just how it was said that the terms were not sufficiently precise was never articulated. 132 Accordingly, the s 106 claim fails on the grounds that the contract is not one within s 106, that the relief sought is not in respect of any provisions of the contract that relate to the performance of work in an industry, and in any event the contract was not relevantly unfair.

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164 The total expenditure on Stage 1 attributable to the Volvo dealership, apportioned according to the evidence of the project manager Mr Bowman to exclude work attributable to the Mercedes dealership, amounted to $264,210.69 [Schedule 1 to Plaintiffs' Submissions]. The total expenditure on Stage 2 included payments direct to contractors and suppliers of $297,401.36 [Schedule 2], and payments to the project manager Bowcon of $1,060,000 [Schedule 3]. I accept that it was reasonable for Harissa to complete the works once commenced, and not leave the property incomplete, and so I would not exclude expenditure incurred after the contract was terminated to complete the works. A few items could be allocated with certainty to the Volvo dealership. Otherwise, Mr Smith, Harissa's accountant, allocated 50 percent of the building costs to the Volvo dealership, producing a total of $732,294.82 [Schedule 4]; Mr Bowman, the project manager, where he was unable to allocate an item precisely to one dealership or another, estimated that at least 33.3% of the balance was attributable to the Volvo dealership works, producing $556,993.74 [Schedule 5]. Mr West submitted that there was no sufficient analysis of the stage 2 expenditure on which the court could safely rely in determining how much was attributable to the Volvo dealership, but Mr Bowman, who was the project manager, was able to express the view that not less than 33.33% was attributable to it. That assessment is an imperfect one, but in assessing damages one has to do the best one can with the material available, and having regard to the scope of the Stage 2 works and their apparent relationship to each of the dealerships and "common areas", and to the circumstance that Mr Smith's assessment is that 50% was attributable to the Volvo dealership, I can be satisfied that Mr Bowman's assessment is reasonable, if not conservative. As Mr Bowman was the project manager who supervised the works, I am inclined to prefer his somewhat more conservative assessment to that of Mr Smith; in other words Harissa has not established to the requisite standard that more than one-third of the works not precisely allocated were attributable to the Volvo dealership. Accordingly the cost of the relevant Stage 2 works was $556,993.74, and the total upgrade costs of both stages $821,203.

[84]

167 I have considered whether there should be a further discount on account of the improvements having added value to Harissa's property regardless of the loss of the Volvo dealership, or having produced some further economic benefit in their subsequent use. However, Mr Azzi's evidence, which I accept on this issue because it is consistent with his documented insistence that he needed a long-term dealership, is that they would not have been undertaken but for the Volvo dealership. Since the loss of the dealership, the plaintiffs have been unsuccessful in obtaining another dealership to replace it; they used the temporary showroom area for storing pre-delivery Honda cars on an ad hoc basis (but it was easier to store them elsewhere), and from December 2001 to January 2003 the temporary Volvo showroom was used to display "prestige used cars". Since September 2003, parts of the former Volvo service and parts facility have been leased. The possibility of redeveloping and subdividing the whole site has been explored, and may well be the highest and best use of the property. In short, the evidence does not enable me to conclude that the Stage 1 and Stage 2 improvements are now reflected in additional value in Harissa's property. There was no need to have an upgrade to park pre-delivery Hondas, nor to have service bays and hoists areas to rent out space to Design Warehouse. The fact that the former Volvo facilities have to some extent been economically exploited subsequently does not require a conclusion that this is a return on the improvements; the previously existing, unimproved facilities might have generated an equivalent return. Ultimately, the evidence does not establish that any economic benefit subsequently generated from the premises was attributable to the improvements or could not otherwise have been derived, and on this issue the defendants bear at least an evidentiary onus; accordingly there is insufficient evidence to establish that any such discount is justified.

[85]

168 Accordingly, under this head, had Harissa succeeded, I would have allowed $796,291. Conclusion 169 My conclusions may be summarised as follows. 170 There was a binding contract between Volvo and TAA, ultimately encapsulated in the final version of the Representation letter, by which Volvo was obliged to grant TAA a dealership for a term of one year, to be replaced by a further dealership for a term of five years before or at the expiration of the initial one-year period. The parties envisaged that in the case of both the one-year and the five-year dealerships, they might agree on additional terms, particularly in relation to renewal, non-renewal and termination, but were content to be bound in the meantime and in the absence of further agreement by the terms of the Representation letter. It was not a term of the Representation letter that any further agreement must provide for a renewal (or for that matter for termination), since such provisions would require the further agreement of the parties. 171 My conclusion that there was a binding contract to that effect renders it unnecessary to consider the alternative argument based on equitable estoppel. 172 As at 8 October 2001, Volvo was not evincing an intention that it would not perform its contractual obligation by granting TAA a five-year dealership from 1 July 2001. Even if it had previously engaged in conduct that might have conveyed such an intent, it had resiled from it by 7 September. Far from evincing an intention not to be bound, the Clayton Utz correspondence of 12 and 13 September manifested an acceptance that Volvo was bound, and an intention to perform, and effectively acknowledged that TAA already had their replacement five-year term, it remaining only appropriately to document it. In the absence of further agreement, Volvo was not bound to include a provision for renewal, but it was entitled to negotiate for provisions both for renewal and for termination. Inclusion of a 120-day termination on notice provision was consistent with the intention of the parties that there be further negotiation as to, inter alia, provisions for termination. Accordingly, I am unable to accept that there was any repudiation available to be accepted by TAA as at 8 October 2001. As the parties never agreed on what provisions should be included in the five-year agreement as to renewal, non-renewal or termination, their position remained governed in those respects by the Representation letter insofar as it made any provision, and, insofar as it did not, by the operation of law. It follows that as at 8 October 2001, there was no repudiation by Volvo available for acceptance by TAA, and TAA was not entitled to terminate for repudiation, as it purported to do. 173 Volvo made representations, to TAA and Mr Azzi on behalf of TAA, to the effect that Volvo would grant TAA a Volvo dealership for one year, to be replaced by a five-year dealership, in respect of the SSE AOR, including the Southern Suburbs territory. It was reasonably foreseeable to Volvo that those representations would be relied on by Harissa, which incurred expenditure on the works on its property, in particular in establishing the temporary showroom and subsequently the permanent showroom. However, there was no representation that the one-year and five-year agreements would contain a provision for renewal, nor that they could not contain a provision for termination other than for cause. 174 On the documentary evidence tendered by Volvo as well as by the plaintiffs, Volvo had reasonable grounds for making the representations when they were made. Accordingly it did not engage in misleading and deceptive conduct. Moreover, any absence of reasonable grounds was causally irrelevant to any loss suffered by TAA or Harissa, which was occasioned by TAA's termination of the contract. 175 The only one of the four Volvo letters that Volvo might reasonably have thought would be passed on to Oriental Patron is that of 7 September 2001, which contained no relevant misstatement. As to the other three, there is no basis for finding an implied intent on the part of Volvo that they would be brought to the attention, nor that it was reasonably foreseeable that they would come to the notice, of others - in particular, Oriental Patron. Although the letters misconceived the true position, they were a statement by Volvo of its position to TAA, in the context of the commercial dispute, and not a reliable representation that Volvo's position was the correct one. At the highest, they represented that Volvo believed the position to be as stated, not that the position was in fact and law as asserted. By sending the Volvo letters to TAA, asserting its position, Volvo did not engage in misleading conduct. Moreover, even if there had been misleading conduct on the part of Volvo in these respects, TAA did not suffer damage as a result, because the float would have been derailed, and the expenditure wasted in any event, as a result of the termination of the relationship by TAA in early October. 176 Volvo did not breach a duty of care owed to Harissa to perform its obligations under the contract with TAA, by repudiating its contract with TAA: first because Volvo did not repudiate its contract with TAA; and secondly because Volvo owed Harissa no such duty, having regard to the circumstances that Harissa was remunerated by TAA for TAA's use of its premises by a rental calculated and valued at arm's length, and thus had no direct interest in the results of TAA, remaining entitled to its rent regardless of the profitability of TAA (and, in particular, regardless of whether or not the Volvo dealership continued); and because any primary liability of Volvo (to TAA) was in contract not tort, and to impose on a contracting party liability arising from breach of that contract to a third party, in circumstances where none of the recognised exceptions to the doctrine of privity apply, would impinge considerably on the ability of the first party to pursue its autonomous commercial interests, and would have the practical effect of extending the scope of liability for breach of contract far beyond its established limits. 177 While the arrangements between Volvo and TAA required TAA to appoint a general manager and obtain approval of a management and staffing structure, they did not prescribe, and had no impact on, the conditions of employment of anyone who performed that work. They were not arrangements "whereby" any person performed work. Accordingly, the contract between Volvo and TAA was not one whereby any person performed work in an industry. Moreover, the relief sought by TAA is not in respect of any provisions of the contract that relate to the performance of work in an industry, and is therefore not within power under Industrial Relations Act, s 106. 178 The conclusion that the contract did provide for a replacement five-year term is a complete answer to the contention that the contract was unfair by reason of not providing for such a term. And a contract is not relevantly unfair just because its terms are imprecise; evaluation of its fairness depends on identification of its terms, however imprecise they may be. 179 Accordingly, all the plaintiffs' claims fail on liability. Had it been necessary to assess damages, I would have reached the following conclusions.

Azzi & Ors v Volvo Car Australia Pty Ltd

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Judgment (98 paragraphs)

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Cited By (12)