BBB Constructions Pty Ltd v Aldi Foods Pty Ltd

Court of Appeal (NSW)|2012-03-21|Before: Basten JA, Barrett JA, McDougall J

Judgment 1BASTEN JA: I agree with Barrett JA that the appeal in this matter should be dismissed with costs. I also agree with his reasons and the additional reasons of Sackville AJA. 2BARRETT JA: In early 2006, the appellant, BBB Constructions Pty Ltd ("BBB"), obtained development approval for a residential and commercial development on land on the corner of Botany Road and Retreat Street, Alexandria. For approximately twelve months, between July 2006 and August 2007, BBB negotiated with the respondent, Aldi Foods Pty Ltd ("Aldi"), with respect to the terms of a proposed agreement whereby Aldi would take a lease of a basement in the building, which it would operate as a supermarket. In May 2007, while negotiations were still underway, BBB commenced construction of a second basement to the building, which would have been necessary to accommodate the proposed supermarket then being considered by Aldi. When Aldi terminated negotiations in August 2007, BBB claimed that it had incurred expenditure in developing the second basement in reliance on representations or other conduct on the part of Aldi that it would take a lease of the area. 3In proceedings determined in the Commercial List of the Equity Division in December 2010, McDougall J dismissed in their entirety claims made by BBB against Aldi: BBB Constructions Pty Ltd v Aldi Foods Pty Ltd [2010] NSWSC 1352. 4BBB was a joint venture company formed to undertake a development of the Alexandria site. It owned the land and its associate, Baseline Constructions Pty Ltd, was to be the builder. Aldi operated supermarkets. The two companies negotiated with a view to Aldi taking a lease of part of the Alexandria premises, when completed, and establishing a supermarket there. The negotiations proceeded to a point where there was consensus on the principal commercial terms of the lease. Heads of agreement were exchanged and the drafting of the detailed terms of an agreement for lease was undertaken. But Aldi withdrew from further pursuit of the matter and no agreement for lease was executed. 5In its Commercial List proceedings, BBB alleged that Aldi acted in a way that was misleading or deceptive, or unconscionable (both under the general law and by statute); alternatively, that Aldi was estopped from denying that it had agreed to lease the premises "on terms as finally agreed". Aldi denied that it was liable to BBB in any of those ways. It contended that the parties negotiated on the express basis that neither would be liable unless and until an agreement for lease, setting out all the terms of their bargain, was executed and exchanged; and that any commitment of Aldi was subject to board approval, which approval was never forthcoming.

Issues and findings at trial 6The issues in dispute before the primary judge were stated by him as follows: "1. Whether the defendant has, in trade or commerce, engaged in conduct which was misleading or deceptive, or likely to mislead or deceive, in contravention of section 52 and 51A of the Trade Practices Act 1974 (Cth). 2. Whether the defendant has engaged in unconscionable conduct in contravention of sections 51AA of 51AC of the Trade Practices Act 1974 (Cth). 3. Whether, by reason of equitable estoppel, the defendant is estopped from resiling from representations, or conduct, which induced an expectation or assumption in the plaintiff that the defendant would enter into a binding agreement for lease of the premises. 4. Whether, by reason of conventional estoppel, the defendant is estopped from resiling from a mutual or common assumption, adopted by the parties as a basis of their relations, to the effect that the defendant would enter into a binding agreement for lease of the premises. 5. Whether the plaintiff is entitled to payment, by way of quantum meruit or restitution, for work provided and costs incurred in connection with the proposed lease, the redesign and construction of the site and the premises to meet the defendant's requirements and the further redesign to meet the defendant's requirements and the further redesign and construction to enable the provision of reasonably lettable space in place of the premises. 6. What loss or damage the plaintiff has suffered by reason of the defendant's conduct. 7. Whether the plaintiff is entitled to damages from the defendant pursuant to s 82 of the Trade Practices Act 1974 (Cth) and, if so, in what amount. 8. What is the equity, if any, to which the plaintiff is entitled. 9. Whether the plaintiff is entitled to equitable compensation from the defendant and, if so, in what amount. 10. Whether the plaintiff is entitled to restitution from the defendant and, if so, in what amount." 7The critical findings of the primary judge which resulted in the rejection of BBB's claims were: (a) that those behind BBB, as commercial persons, knew that there could be no binding lease unless there was a written lease document executed by both parties; (b) that Aldi's agreement to take the lease was always subject to Aldi board approval and, contrary to BBB's case, this was not a mere formality, with the result that Aldi's assurances that executed lease documents would be forthcoming were also subject to board approval; (c) that Aldi board approval was not given; (d) that BBB knew that Aldi's commitment to lease and its representations that it would execute lease documents were always subject to Aldi board approval; (e) that, accordingly, the representations did not ground BBB's claims of misleading or deceptive conduct, unconscionable conduct or equitable estoppel; and (f) that BBB did not in fact rely on the representations made. 8It was (and is) common ground that both parties understood "Aldi Board approval" to be approval of Mr Kopp, a managing director of Aldi.

Issues on appeal 9The central issues on appeal involve the nature of the representations and conduct by Aldi and the extent to which BBB was entitled to rely and did rely on that conduct. 10BBB challenges various factual findings and, building on that foundation, relies on grounds of appeal which may be summarised as follows: (1) The primary judge took an erroneous view of the nature and effect of Aldi's representations about its intention and commitment to enter into a binding agreement to lease. Rather than finding that those representations were conditional on Aldi board approval (that is, the approval of Mr Kopp), the judge should have found that the Aldi representations were not conditional and that Aldi represented throughout that it was committed to leasing the premises, that it would enter into a binding agreement to lease and that, to the extent that board approval was needed, that approval either had been given or would be no more than a mere formality. (2) The primary judge should have determined on the evidence that Aldi's representations were misleading or deceptive in breach of s 52 of the Trade Practices Act 1974 (Cth) and that BBB had relied on them in proceeding with the building development to accommodate Aldi's requirements, thereby suffering loss. (3) The primary judge should have concluded that, in all the circumstances, Aldi engaged in unconscionable conduct in refusing to execute the agreement for lease in about July 2007 and thereby resiled from a commitment to the transaction that it had induced BBB to assume that it had. The relevant circumstances were that Aldi knew that BBB, with the acquiescence and encouragement of Aldi, incurred and continued to incur redesign costs and building costs to accommodate Aldi's requirements; and that Aldi withdrew without ascertaining what matters had already been agreed, without submitting the proposed leasing documents to its board for approval, without warning BBB that there had been any material change in the likelihood of Aldi's entering into a binding agreement to lease and disregarding the financial consequences for BBB. (4) The primary judge should have found that Aldi was estopped from resiling from the representations made by it which had induced in BBB an assumption that Aldi would enter into a binding agreement to lease. (5) Having accepted that Aldi was under a duty to act in good faith in its dealings with BBB, the primary judge should have found that Aldi's failure to execute an agreement for lease presented to it by BBB in July 2007 was a breach of that duty. 11Item (5) requires some explanation. The primary judge referred on several occasions to a "commitment" of Aldi to continue to "negotiate in good faith". But it is clear that his Honour did not have in mind some form of legal duty to "negotiate in good faith", non-adherence to which would entail legal consequences. There was no contract of which any implied term of good faith performance was alleged to form part. There was no fiduciary relationship of which a duty of good faith was an incident. Rather, the primary judge was indicating that the conduct expected of Aldi, in order to avoid grounds for a decision adverse to it upon the causes of action ultimately asserted against it by BBB, was that it should continue to "negotiate in good faith". Item (5) thus amounts to no more than the proposition that Aldi's failure to execute the agreement for lease presented to it by BBB in July 2007 was conduct of Aldi within one or more of the categories of wrongful conduct on which BBB based its proceedings.

Credibility 12The main witnesses who gave evidence about contemporary events were Mr Paul Bettar (not to be confused with Mr Nicholas Bettar), Mr Phillip Bart, Mr Benjamin Rogers, Mr Robert Kalde, Mr Joshua Brassington, Mr John Savell, Mr Kopp, Mr John Brophy and Ms Gillian Donaldson. References below to "Mr Bettar" are references to Mr Paul Bettar. 13Mr Bettar, Mr Nicholas Bettar and Mr Bart were officers or employees of BBB or its associate Baseline Constructions (or both). Mr Kalde was a principal of the firm KQ Lawyers, a firm of solicitors retained by BBB. Mr Rogers was a solicitor employed by that firm. Mr Brassington was, at the start of the relevant period, an employee of Aldi. He ceased to be employed by Aldi in or shortly before February 2007, but was retained by Aldi thereafter as a consultant in relation to the proposed transaction with BBB. Mr Savell was an employee of Aldi who took over Mr Brassington's role after Mr Brassington left. Mr Kopp, as I have said, was a managing director of Aldi. Mr Brophy was a partner of Brophy Bridge & Mirow, Aldi's solicitors. Ms Donaldson was an architect employed by Aldi. 14The primary judge made and recorded a succinct assessment of the credibility of each of the main witnesses. 15Mr Brassington and Mr Kopp were regarded by the judge as impressive witnesses. His Honour had no reservations about their evidence and noted that each was prepared to make frank concessions. Mr Savell was accepted as a reliable witness, although without a detailed recollection of relevant events. 16The judge expressed concerns about aspects of the evidence of each of Mr Bettar and Mr Bart. Indeed, it would not be going too far to say that the judge had distinct reservations about the reliability of their evidence. His overall conclusion was that Mr Bettar's evidence should be accepted to the extent that it was supported by contemporaneous documents and that, where there was no foundation in such documents, the evidence of both Mr Bettar and Mr Bart needed to be scrutinised with care and to be weighed against documents and probabilities objectively ascertained. The judge made particular reference to demonstrated feelings of grievance on the part of Mr Bettar. 17There was no reservation about the evidence of the remaining witnesses. 18None of these credit findings was challenged on appeal.

The evidence in summary 19Because the grounds of appeal entail challenge to a number of findings of fact, it is necessary to make a survey of the evidence and in that way to expose the essential factual background without, at this point, referring to the judge's findings. 20The first contact between BBB and Aldi occurred in May 2006. BBB had already designed its proposed building and obtained local government consent for development and construction but work had not commenced. Aldi indicated an interest in buying a stratum of the proposed building. BBB was not interested in selling. In June 2006, the focus moved to a leasing proposal. The subject matter was a second basement that had not formed part of the original design. 21The creation of the second basement involved not only additional cost but also some "juggling" of the usable space in the building as there was no realistic prospect of the council increasing the floor space ratio for the site. The proposal required an application to the local authority under s 96 of the Environmental Planning and Assessment Act 1979 ("EPA Act") to amend BBB's existing consent. In effect the proposal involved constructing a second basement, but foregoing use of most of the ground floor. 22Mr Brassington wrote to Mr Bettar on 29 June 2006 setting out a leasing proposal. At the end of the letter, he said: "This offer is subject to Aldi board formal approval." 23A meeting took place on 4 July 2006 at which the proposal was discussed. There was another meeting on 14 July 2006. By letter of the same date, Mr Brassington confirmed that Aldi's preference was to buy for $9.1 million and that the less favoured option was to lease, 1,100 to 1,200 square metres at $425 per square metre for a term "TBC" (no doubt, "to be confirmed"), noting BBB's preference for fifteen years. 24On 18 August 2006, Aldi confirmed its "strong interest in the site" and stated that its communication "provided a level of comfort regarding our commitment". Thereafter, Mr Bettar of BBB and Mr Brassington of Aldi sought to negotiate the essential commercial terms on which BBB and Aldi could proceed. 25There was a meeting on 6 October 2006 between Mr Brassington and Mr Bettar. 26On 16 October 2006 Mr Brassington wrote to Mr Bettar and set out what he understood to be "the respective positions of both parties". The letter adopted a tabular form. It was headed "Potential ALDI Store - 222 Botany Road, Alexandria" and began: "We refer to previous discussions and correspondence regarding the above. We have attempted to summarise the respective position of both parties, with a view to entering into formal Lease documentation as soon as possible." 27The table followed. Item 30 "Conditions Precedent" was stated in the column describing Aldi's position in the following terms: "This offer is conditional upon: Relevant Authority approvals; ALDI Board approval; BBB Board approval." 28There was also reference to the need for "satisfactory authority approvals" for the right turn into and from Retreat Street. 29BBB replied on 25 October 2006. It also adopted the tabular form after the following introductory paragraph: "In response to your 'Heads of Agreement' dated 16 October 2006, please find below our response which will form the bases to proceed into the agreement to Lease." 30The tabular form was adopted in Aldi's reply of 30 October 2006 which proposed a meeting "this week to finalise the points of difference so that we can move to Leasing documentation". The letter made special reference to questions concerning delivery hours, outgoings and access to and from Retreat Street. 31On 31 October 2006, BBB lodged its application with the local authority under s 96 of the EPA Act for approval to vary the project to create additional floorspace. 32BBB wrote to Aldi on 1 November 2006, again in the tabular form, setting out matters "which will form the basis to proceed into the agreement to Lease". 33On 1 November 2006, Mr Brassington of Aldi had a "one on one" meeting with Mr Kopp, the relevant managing director of Aldi, at which time "all issues as discussed previously had been incorporated into the H of A". BBB says that at this time Mr Kopp approved the proposed heads of agreement. 34There was a meeting on 8 November 2006 attended by Mr Brassington, Mr Bettar, Mr Bart and BBB's solicitor, Mr Kalde of KQ Lawyers. Accounts of what transpired differ as to detail, but it is clear that matters discussed included Retreat Street access, delivery hours, outgoings and signage. 35BBB wrote to Aldi on 13 November 2006, again using the same tabular form. The "Conditions Precedent" section remained in the 16 October 2006 form set out above. The letter concluded: "The last column indicates the agreement that was reached between BBB and Aldi during our meeting on 8th November, 2006. I trust that all is clear and await your direction." 36The table in this last-mentioned letter contained an additional column headed "BBB and ALDI meeting 8 November 2006". Entries appeared in that column in respect of certain items only. The remainder had been settled at some earlier stage. Certain of the entries in the additional column recorded an agreed position. For several of the remainder, there was a note that the matter "will be resolved during a SOW meeting" ("SOW" being "scope of works"), thus indicating an intention to discuss further. The matters not settled concerned (a) responsibility for outgoings (there being one regime "If Aldi was the Sole Tenant to level 1 basement" and another "If Aldi is not the sole tenant on level 1 basement"), (b) delivery hours (steps to be taken with a view to deciding this were stated), (c) internal and external signage (it was recorded that a "reasonable approach" would be adopted between the two parties regarding signage locations, that "a form of signage" was "envisaged" at two points and that all signage was subject to local authority approval), (d) scope of works (to be resolved at a subsequent scope of works meeting), (e) building services (to be resolved in the same way) and (f) right turn access to Retreat Street (BBB to use its best endeavours to obtain approval for this "during limited times"). 37Preparation of a scope of works document was commenced in due course. Its purpose was to define the design and other features required by Aldi which were to be incorporated into the building. This document was intended to be part of the agreement for lease. From Aldi's side, Ms Donaldson became heavily involved in preparation of the scope of works. 38On 15 November 2006, Aldi wrote to its solicitor, Mr Brophy of Brophy Bridge & Mirow, enclosing "our Heads of Agreement for the above site" and asking that he "please commence preparation of Agreement for Lease and Lease documentation". It is not clear precisely what was enclosed with this letter but it may be inferred that it was either a copy of the 13 November 2006 letter or a document containing the same content. 39Certain aspects of the heads of agreement should be noted, as follows:

It was stated that BBB would use its best endeavours to obtain approval for right turn access to and egress from Retreat Street during limited times.
The final layout of the premises was to be confirmed by the respective architects and "drawings for attachment to lease must be fluid". In addition "Plans to be provided and attached to the Agreement for Lease and the Lease."
The "Conditions Precedent" provision ([27] above) was included. 40Serious negotiations then began on documentation, the scope of works and the configuration of the basement areas. 41On about 27 November 2006, Mr Brassington informed Mr Bettar that Aldi's solicitors were preparing a draft lease which he said should be received by BBB that week. The draft was sent on 1 December 2006 "for preliminary discussion". The solicitors for the parties then began exchanging marked up drafts of the lease documents. 42In early February 2007, after Mr Brassington had left Aldi and established his own consultancy, Mr Bettar had a conversation with him in which he expressed concern at his inability to contact Mr Brassington's successor, Mr Francis (Mr Savell replaced Mr Francis soon afterwards when Mr Francis became ill). Mr Bettar's evidence was that Mr Brassington said, "Don't worry everything will be OK; you are just going through the lease formalities"; and "Don't worry, the lease is done". 43At a meeting on 27 February 2007, Mr Brassington (by that time a consultant engaged by Aldi) reassured Mr Bettar that the lease documents would be finalised and that Aldi was proceeding. Mr Bettar made a note to this effect in his diary. 44On 8 March 2007, the local authority approved BBB's application for approval under s 96 of the EPA Act for the creation of the second basement. On 12 March 2007, Mr Bettar wrote to Mr Brassington expressing concern about delay and a need for the two of them to "finalise the outstanding points", failing which "we will never finalise the lease document". Mr Bettar then set out the outstanding matters as he saw them. 45At a meeting on 16 March 2007, Mr Brassington and Mr Bettar discussed the outstanding points in the lease negotiations. Mr Brassington said to Mr Bettar at the end of the discussion words to the effect: "From our agreement of these outstanding issues today, it will be two weeks and you will have a signed contract from Aldi." 46On the same day, Mr Bettar made a diary note referring to Mr Brassington ("Joshua") as follows: "Joshua again confirmed all is OK from agreement of the outstanding issues it would be two weeks and we would have a signed contract back from Aldi." 47The diary note makes it clear that there were still "outstanding issues". A list of them appears in the letter dated 12 March 2007 from Mr Bettar. It is not possible to know precisely what each involved as many are stated in terms assuming familiarity with the course of discussions and drafting. But it is clear that, far from being confined to mere technicalities or matters of detail, these included some issues of substance, for example: what the handover date would be; lack of final form of plans and specifications; responsibility for cost of the installation of a goods lift; whether BBB's consent should be required to an application by Aldi for a liquor licence; whether BBB would have a right of access to "the landlocked land"'; the need to agree to a carpark management system. 48Mr Bettar wrote to Mr Brassington again on 20 March 2007 referring to the meeting of 16 March 2007 and saying, "please find below the resolution of various points in question". In the list that followed, most matters were stated to be "agreed". But there were some exceptions. In particular, BBB insisted on certain rights regarding approval of assignees and it was suggested that the matter of a "definition of premises" be left for discussion "at the forthcoming meeting". 49Mr Brassington sent copies of the 12 and 20 March 2007 letters to Mr Brophy on 27 March 2007. 50On 21 March 2007, Mr Brassington informed the responsible property director at Aldi (Mr Savell) that "we are near to finalising our lease negotiations"; and that the scope of works had been resolved to Mr Brassington's satisfaction. 51On 28 March 2007, Mr Brassington sent Mr Bettar an email attaching some "very minor amendments" to the scope of works required by Aldi. He said: "Please make the amendments and re-issue the document. Aldi have advised me they want to see the final document prior to sign off. This part of the process will then be completed finally. Aldi have also confirmed to me that will not start the DA process until the Leasing documents are exchanged. Please call me if you have any problems ...." 52On 30 March 2007, the parties and their solicitors met to work through the outstanding questions in relation to the agreement for lease document. At the end of the meeting, Mr Brassington informed the BBB representatives that Aldi's solicitor "needs to amend the lease and then it will take two weeks maximum for the lease to be signed ... and returned to you". It may therefore be inferred that a consensus had been reached which was capable of being communicated to Mr Brophy and incorporated by him into amended documents. 53Mr Bettar recorded in his diary on 30 March 2007: "Joshua confirmed now we have resolved lease issues Brophy to amend lease & it would take two weeks maximum for lease to be signed & returned." 54On 4 April 2007, KQ Lawyers sent an amended draft agreement to Mr Brophy. They expressed an understanding that it reflected "the agreements made between our respective clients in the meeting" of 30 March 2007. On the same day, Mr Huynh of BBB sent to Ms Donaldson of Aldi an amended scope of works. 55On 13 April 2007, Mr Bettar emailed Ms Donaldson "to confirm a few points" concerning a tank and an "additional area ... within the perimeter of the site". This prompted an email of the same date from Mr Brassington to Mr Bettar saying in blunt terms that "Aldi will not pay any additional (lessor) costs associated with ventilating or acoustic treatment of the loading dock". 56Mr Bettar's reply, also of the same date, said: "I find this totally unfair ...". 57In his 13 April 2007 email to Ms Donaldson, Mr Bettar said that "the contract is all but finished and is in the hands of Aldi's solicitor". 58On 20 April 2007. BBB entered into a contract with Baseline Constructions Pty Ltd, its associate, for the construction of a "two level carpark and two levels (mezzanine) retail units". The contract price was $14.67 million and the proposed date for commencement of the works was 19 May 2007. 59On 27 April 2007, Mr Brassington emailed Mr Bettar as follows: "I still require the following documentation from you prior to exchange of leasing documents. A copy of your approved DA for the site. A copy of the correspondence you (or your consultant) have sent to the relevant authorities regarding right turn access from the site. The Heads of Agreement calls for the lessor to use their best endeavours to achieve this outcome. ALDI will want to see evidence of these endeavours. A draft or estimate of the outgoings for the basement stratum. ALDI will want an understanding of their annual costs in this area. Feedback on the status of the lease documents from your end. If you could provide me with copies of the above next week we should be in a position to exchange the following week." 60Mr Bettar replied on 28 April 2007: "I will commence collating this information for you. As far as the lease documents from our end my solicitor confirmed that the notice he received from your solicitor was fine and that we were proceeding with forwarding him a copy of the lease. My understanding is that we were to attach the plans to the lease which is pretty much there now. We are also to attach the scope of works which I will double check now and advise you by Monday. Can you please advise the actual procedure and a time line for the lease to be finalized, ie on exchange will we receive a signed copy of the lease ready for us to counter sign!!!!!" 61On 1 May 2007, BBB began physical work on the site. The first stage involved removal of the existing piling so that the excavation for the additional basement could be undertaken. 62On 9 May 2007, Mr Brassington emailed to Mr Bettar plans "for insertion into the lease documents", adding: "We are now ready to put all the documents together and exchange leases. Subject to your approval and Aldi's of course." 63Mr Brassington emailed Mr Bettar on 11 May 2007 enclosing the "final version of the Lessee/Lessor Scope" and saying that "subject to your approval" he would give it to Aldi's solicitor for inclusion in the lease documents. Mr Bettar replied on 15 May 2007 urging Mr Brassington to "get moving". 64At that stage, however, there was still an outstanding issue about responsibility for outgoings. It was flagged in a letter of 15 May 2007 from Mr Brophy to BBB's solicitors, KQ Lawyers. Mr Brophy proposed a new and different clause on the subject. 65Mr Bettar recorded in his diary on 16 May 2007: "Joshua confirmed all attachments to lease finalised and given to solicitor and its now in our hands to exchange. If all OK we will get a signed lease within a week to 10 days. I confirmed we have been working on the project and I am getting pressure for the lease to be finalised." 66KQ Lawyers replied on 18 May 2007 to Mr Brophy's letter of 15 May 2007. They conveyed their client's disagreement with Aldi's position on the matter of outgoings and proposed a different clause. 67KQ Lawyers submitted documents "in final form" to Mr Brophy under cover of a letter dated 21 May 2007. The outgoings clause was as KQ had proposed in their earlier letter. KQ also referred to at least ten other areas in which the documents had been changed. The letter concluded: "We note our client is not bound by the lease or agreement prior to a formal exchange." 68On 25 May 2007, Mr Brophy wrote to Mr Savell of Aldi. He referred to the fact that Mr Brassington had conducted negotiations for Aldi. He confirmed: "Agreement has now been reached on the commercial terms and the Agreement for Lease is ready and in order for execution by Stefan [Mr Kopp]. We forward herewith the Agreement for Lease together with a letter to Stefan. Would you please return the Agreement to us after execution by Stefan so that we can arrange execution by the Landlord and formal exchange. The Landlord's solicitors have also forwarded to us an engrossment of the Lease in duplicate but we shall retain those documents until a commencement date has been ascertained in the future and have the engrossment then executed and marked by the Stamp Duties Office." 69The enclosed letter to Mr Kopp was also dated 25 May 2007. It summarised key provisions of the documents. The letter concluded: "The Agreement for Lease and the lease have been prepared in accordance with instructions, contain the negotiated terms and are in order for execution by ALDI." 70Also on 25 May 2007, Mr Brophy wrote to KQ Lawyers saying: "We forward herewith Agreement for Lease to which the Annexures have been added. We also forward copies of the Plans which form the Annexures in A3 size. We have delivered a counterpart of the Agreement for Lease for execution by our client and will advise you when this has been done. We thank you for your assistance in this matter." 71Mr Kopp reviewed the documents sent with Mr Brophy's letter of 25 May 2007. 72Following a meeting attended by Mr Kopp and other Aldi representatives, Mr Brophy wrote to KQ Lawyers on 29 May 2007, setting out seven "issues" that Aldi had raised in relation to the documents. Mr Brophy's apparent belief that the documents he sent out on 25 May 2007 reflected all of Aldi's instructions and requirements had thus proved incorrect. 73KQ Lawyers replied on the same day setting out the same numbering and indicating that its instructions were "Agreed" in relation to three matters and "Denied" in relation to four. The KQ letter went on to propose alterations and concluded by saying that BBB required receipt of executed documents by close of business the next day, 30 May 2007. 74The KQ letter concluded by saying that no binding agreement for lease would be created until BBB executed the documents. 75In early June 2007, BBB approached lending institutions seeking construction finance. It wrote relevantly identical letters to several lenders. Each letter stated that BBB was "about to sign a major national supermarket operator as the main commercial tenant for twelve years with multiple options". Some of the institutions expressed interest. One included among conditions precedent, "Supermarket Lease Head [sic] of Agreement to be executed by tenants". Another asked for correspondence with supermarket operator "confirming advanced discussion (unless a letter of intent or an agreement to lease are available as such documents would be preferable)". 76Also in early June 2007, Mr Brassington became aware of the potential availability for purchase of alternative space in a nearby Alexandria development in Wyndham Street (or Power Avenue - it was a corner site). That possibility was investigated and, on 3 July 2007, Mr Brassington reported to Aldi that "the vendor has changed his position which is disappointing". Undeterred, Mr Brassington prepared a "desk top analysis" for the Wyndham Street site. At no time did Aldi inform BB of its negotiations in respect of the alternative site in Wyndham Street. 77On 8 June 2007, Mr Bettar emailed Mr Bart about strategy for a meeting scheduled with Mr Brassington and Mr Savell for the following Tuesday. He identified five topics for discussion: "Right turn from Botany Rd to Retreat St"; "Extra signage"; "Trolley bay to be a licensed area"; "Right to buy premises"; and "Extended trading hours". Mr Bettar recorded his suggested discussion strategy against each item and Mr Bart, in a copy sent back on 11 June 2007, added his reaction to each. 78Mr Bettar's note against the item concerning right turn was: "I will basically say we did our best to get this approved and give them the traffix documentation." ("Traffix" was a traffic consultancy firm). 79Mr Bart's notation was: "Correct, this was clearly understood with Joshua - they are welcome to have a crack at it, but cannot be a condition." 80Mr Bettar's note in respect of extra signage was: "I will just say that will be reliant on there [sic] DA application and council approval." 81Mr Bart's notation was: "Correct - we don't want Aldi signs plastered all over the building - the signage must stand as per the agreement." 82At the end of Mr Bart's reply appears the following: "Paul - I don't like this renegotiating AFTER the event. Tell them that on Friday we are giving another group a three week exclusive period - at a higher rent and longer term. We are not walking away from them, but will do so after Friday with a clear conscience." 83I shall return to this matter of "another group". 84Mr Bettar made the following entry in his diary on 12 June 2007: "Met with Jon Savell and Joshua. They wanted to change agreement. Spoke to Joshua. He suggested they are only small issues and I should agree to them so we can finalise lease. He said not to worry about the signage as Milestone are lodging the DA and he will control the signage in line with our concerns about the aesthetics of the building." 85On 12 June 2007, Aldi (Mr Savell) told Aldi's architect (Ms Donaldson) that Mr Kopp "has NOT approved the site, as such it remains on HOLD until we seek further information from the lessors". Mr Savell agreed that he was effectively "asking Ms Donaldson to down tools pending a review internally at Aldi". 86Mr Brassington gave evidence that had he known of Aldi's decision to put work "on hold" (or to "down tools") he would have told BBB. 87Mr Bettar emailed Mr Savell on 12 June 2007 referring to their meeting that day (which also included Mr Brassington) and conveying the BBB "response" on a number of issues, some of which had been the subject of the exchange between Mr Bettar and Mr Bart. 88Mr Savell replied to the email the next day, 13 June 2007. He sought Mr Bettar's agreement to what he had said. 89There were further exchanges of emails on 15 and 16 June 2007 and 18 June 2007. 90Mr Bettar recorded in his diary on 19 June 2007: "Spoke with Joshua about all the changes from Jon Savell. He confirmed it was very embarrassing but just be comfortable with what we agree to and we should nail the lease finally." 91On 29 June 2007, Mr Brophy forwarded to KQ Lawyers amended pages of the documents. They re-sent these on 2 July 2007 together with a draft licence to deal with an aspect of car parking. 92Mr Bettar recorded in his diary on 3 July 2007: "Spoke with Joshua. All documents have been sent from Aldi solicitor to KQ Lawyers. We should wrap up within 2 weeks." 93In fact, Mr Brophy's letter of that date to KQ Lawyers enclosed a further version of the deed of licence containing additional clauses and set out new clauses for inclusion in the agreement for lease and lease. 94On 5 July 2007, Mr Kalde of KQ Lawyers wrote to Mr Brophy in response to the letter of 3 July 2007. Among the matters conveyed was: "We are instructed that the lease is to be a 'gross lease' with rent to be inclusive of outgoings and increased annually at a fixed rate of 3%." 95There was further correspondence between the solicitors on 6, 9 and 10 July 2007. 96On 15 July 2007, Mr Brophy advised KQ Lawyers that he understood that the agreement for lease "will be presented for signature within the next couple of days". Mr Brophy sent the document to Mr Kopp on 16 July 2007 under cover of a detailed letter of explanation and advice. The letter concluded: "The Agreement for Lease, the Lease and Deed of Licence have been prepared in accordance with instructions and contain the negotiated terms. The Agreement for Lease might please be formally executed as usual. The first and last pages of the Deed of Licence should be signed." 97On the same day, Mr Brophy wrote to KQ Lawyers: "Since speaking with you last Thursday, we have forwarded the documents to Joshua Brassington and understand that they will be presented for signature within the next couple of days. We draw your attention to the following changes which were consequential upon other changes agreed to last week:

The board approval issue 103BBB says that the primary judge should not have found that Aldi's agreement to take a lease was always subject to Aldi board approval (being Mr Kopp's approval). The correct finding, according to BBB, was that, from about 13 November 2006 (or, alternatively, 30 March 2007), Aldi's assurances of commitment were subject only to the settling of all drafting and scope of works issues. 104BBB's alternative contention is that, if the commitment was subject to board (ie, Mr Kopp's) approval, Aldi had represented that this was a mere formality or had already been given. 105BBB accepts that, as at 4 July 2006 and for some time thereafter, the only authority Mr Brassington had was to continue negotiations. It argues, however, that this changed when the heads of agreement were completed on or about 13 October 2006. Mr Brassington said that he required Mr Kopp's approval to commit to the heads of agreement. This, according to BBB, indicated that, once the heads of agreement had been agreed, Mr Kopp had given his approval and there was thereafter no room for any reservation or requirement on Aldi's part concerning further or future approval by Mr Kopp. 106BBB points out that, after the heads of agreement had been agreed, there were no statements by Mr Brassington or other Aldi personnel about the need for Mr Kopp's approval. BBB also points to evidence that Mr Brassington had been in contact with Mr Kopp during the process and had received instructions from Mr Kopp. From this, BBB says, it must be inferred that Mr Kopp had given his approval to Aldi's commitment to the lease before July 2007. 107BBB places particular emphasis on the May 2007 instruction by Aldi to Ms Donaldson to stop work until Mr Kopp had reviewed "the lease agreement" and the subsequent instruction to Ms Donaldson to resume work. From this, it is said, an inference ought to be drawn that Mr Kopp had approved "the lease agreement". 108BBB says that, in any event, the heads of agreement contained a representation by Aldi that it was prepared to enter into a binding agreement by Christmas 2006 in terms of documents to be prepared by the solicitors; also that none of the documents thereafter produced by Aldi's solicitor contained any condition concerning Aldi board approval or that of Mr Kopp. 109Also, at the meeting of 30 March 2007, BBB says, there was consensus on outstanding matters and no reference to a need for Mr Kopp's approval. 110Aldi points to six particular matters in responding to these contentions of BBB: (a) that the judge had accepted evidence of Mr Brassington regarding a conversation with Mr Bettar in which he (Mr Brassington) had said that Aldi could be a difficult company to deal with and could change its mind about what it wants; and that, while he would negotiate terms, the deal would have to be submitted to the managing director for final approval; (b) that the judge preferred Mr Brassington's evidence to Mr Bettar's regarding the meeting of 4 July 2006 and, on that basis, found that Mr Brassington did not say that the Australian and New South Wales managing directors (or the Aldi board) had given him approval to proceed with an agreement for lease; (c) that the judge preferred the evidence of Mr Brassington to that of Mr Bettar about the meeting of 6 October 2006 and found that Mr Brassington did not say that he had been given approval by Mr Kopp to proceed with the site and that this was the equivalent of board approval; (d) that the judge had found that the letter of 13 November 2006 (which referred to "the potential lease") made it plain that the transaction was subject to the approval of the boards of BBB and Aldi and rejected Mr Bettar's evidence that such approval was a matter of formality or had already been given; (e) that the judge had found that Mr Bettar understood that the only approval given by Mr Kopp was an approval to continue negotiations; and did not accept that BBB could reasonably have understood to be a mere formality the question whether Aldi would or would not proceed to execute documents once all issues (including scope of works issues) had been resolved; and (f) that the judge held that any assurances Mr Bettar received from Mr Brassington about a lease being executed in the near future could only have been understood in their context as meaning that the lease would be submitted to Mr Kopp to decide whether or not Aldi should proceed to execution. 111These findings of the primary judge were clearly open to him on the evidence, particularly in the light of his credibility assessments. On the basis of the findings, he held that the condition regarding Aldi board approval remained operative at all times (including after the creation of the November 2006 heads of agreement) and that that condition was never satisfied. 112The primary judge did not accept that the condition applied only until the commercial terms had been settled (the content of those terms apparently being the "offer" referred to in the table accompanying BBB's letter of 13 November 2006). The condition concerning Aldi board approval was contained in that table, as it had been in the earlier versions. The judge therefore did not accept that the condition fell away after the terms had been settled and recorded in the 13 November 2006 letter a copy of which (or the content of which) was sent to Mr Brophy with Aldi's letter of 15 November 2006. 113The primary judge was correct in relation to these matters. The condition precedent was included in the 13 November 2006 document and must therefore be taken to have been included in the heads of agreement. There was no binding contract at that point (nor did one ever come into existence) and inclusion of the condition in the document can only have meant that the "offer" it contained - effectively, an offer to move towards a binding agreement by means of a process of drafting and further negotiation - was subject to the condition. The heads of agreement embodied, in reality, a proposal that was subject to the expressed condition precedent. That condition was not abandoned and it did not fall away by some form of tacit consensus. That leaves the possibility that it was satisfied and fulfilled - the alternative proposition for which BBB contends. 114BBB points to a number of matters supporting its alternative contention - in essence, that there were numerous occasions on which Mr Brassington said (or Mr Bettar understood him to say), in effect, that all points had been settled and production and execution of an agreement for lease was imminent. It is clear that Mr Brassington did make such statements after the heads of agreement had been concluded, although, as will be seen, they were qualified statements. But it is not shown by the evidence that Mr Brassington ever said in explicit terms or implied that board approval (or that of Mr Kopp) had been given. Nor is it shown that the statements were made in a context that justified reliance on them as definitive and considered statements of Aldi's position. 115The point BBB makes is that, after the heads of agreement had been concluded, it was led by Aldi to think that all that remained was a somewhat mechanical process of legal drafting. BBB's complaint is, in effect, that Aldi never said to it that it should hold off expenditure and other steps to give effect to what was no more than a possible future contract because the essential pre-condition of Aldi board approval had not been satisfied. 116This proposition does not withstand scrutiny. Even a superficial survey of the evidence of events after 13 November 2006 shows that matters significantly beyond legal drafting remained unsettled. It is sufficient to refer to the following: (1) On 23 November 2006, Ms Donaldson of Aldi sent a scope of works document to BBB with an invitation to "make any modifications in red for ease of tracking". (2) In an email of 28 November 2006 to BBB, Ms Donaldson requested a meeting to "co-ordinate mechanical and refrigeration services". (3) On 29 November 2006, Mr Bettar emailed Ms Donaldson saying that he was "somewhat confused and concerned with the layout". (4) On 1 December 2006, Mr Brophy sent to Mr Bettar a "draft Agreement for Lease/Lease for preliminary discussion". (5) In an email of 4 December 2006 to a Mr Stark about progress with the local authority, Mr Bettar said that he was "about to sign the lease with the prospective tenant". (6) On 15 December 2006, Mr Brophy sent to KQ Lawyers a copy of what he had previously sent to Mr Bettar. (7) On 10 January 2007, KQ Lawyers sent to Mr Brophy a mark-up of the draft documents, saying: "Please note, although we understand that our proposed amendments reflect the heads of agreement reached by the parties, we have not yet had an opportunity to take our client's formal instructions thereto. As such, the enclosures are provided in draft from [sic] only." (8) On 5 February 2007, Mr Bettar wrote to Mr Francis of Aldi asking whether BBB should expect to receive the adjusted version of the scope of works. (9) On 23 February 2007, Mr Brassington sent a scope of works document to Mr Bettar and said that he would "like to discuss this with you today and confirm our timetable for going forward". (10) On 12 March 2007, Mr Bettar wrote to Mr Brassington setting out 23 "points" referable to his opening paragraph: "It seems as though unless you and I finalise the outstanding points in the negotiation we will never finalise the lease document". (11) On 20 March 2007, Mr Bettar wrote to Mr Brassington referring to a meeting that had occurred on 16 March 2007 and proposing a further meeting "between the Landlord and Lessor [sic] together with their respective solicitors". This was the meeting at which he proposed that a number of matters in that letter be discussed. (12) On 29 March 2007, Mr Huynh of BBB wrote to Ms Donaldson of Aldi about the "latest revision of" the scope of works, observing that "the majority of the schedule is just about there for final agreement". He then went on to deal with a number of issues. (13) Mr Huynh sent an amended scope of works to Ms Donaldson on 4 April 2007. (14) On 13 April 2007, Mr Bettar emailed Ms Donaldson "to confirm a few points" about the scope of works. He said, among other things, that he understood that the scope of works was "to be attached together with your drawings". He was referring here to the "contract" which he said was "all but finished and in the hands of the Aldi solicitor". (15) Also on 13 April 2007, Mr Bettar emailed Mr Brassington asking him to telephone about an email in which Mr Brassington had said that Aldi would not pay any additional costs concerning ventilation or acoustics of the loading dock, something he said was "totally unfair". (16) On 18 April 2007, Mr Bettar said in an email to Mr Brassington, among other things: "This layout is still not good". "The condensers in the loading dock no good". "I do not want easements in Loading Dock". (17) On 19 April 2007, Mr Bettar wrote to Mr Brassington about matters that had been raised in recent emails. He said, among other things: "Please find attached various annexures that I will refer to throughout this letter in the hope that we resolve all issues in the best interests of both Aldi and BBB Constructions." (18) In a letter of 20 April 2007, to Mr Brassington, Mr Bettar concluded: "I hope that this clarifies things and we can try and have our meeting at the end of the month to finalise the drawings." (19) KQ Lawyers forwarded "the lease documents" with a letter of 27 April 2007 to Mr Brophy. They said, among other things, that the annexures to the lease were "currently being finalised"; and: "Please note that the enclosures are submitted on the basis that neither party is bound and each party may withdraw from negotiations until the agreement to lease has been executed by both parties." (20) Mr Brassington's letter to Mr Bettar dated 9 May 2007 enclosing documents referred to a readiness to "put the documents together and exchange leases", but "[s]ubject to your approval and Aldi's of course". Mr Bettar did not reply to the effect that Aldi's approval had already been given. This was because, contrary to the position sought to be established by BBB at trial and on appeal, Mr Bettar understood that the negotiations were a means of reaching a position where each party would ultimately give or withhold approval of the finally negotiated package. (21) The matter of outgoings and responsibility for them was not agreed as at mid-May 2007 (see the references in correspondence between the solicitors of 15, 18 and 21 May 2007). (22) Mr Brophy's letter of 29 May 2007 referred to seven outstanding issues and KQ Lawyers' reply dealt with those matters by agreeing to some and not agreeing to others. (23) On 11 June 2007, Mr Bettar noted as being the subject of forthcoming discussion the questions of access and signage, among others. 117It is thus clear that a condition involving Aldi board approval continued, in an objective sense, to be a meaningful condition on a continuing basis at all times after mid-November 2006. A number of matters of significance remained to be negotiated and agreed. The processes adopted were consistent with progressive steps towards a final position capable of being put to Mr Kopp for his approval. 118It is significant that Mr Kopp himself had played only a small role in the discussions between the parties. The references to him in the evidence in the period November 2006 to August 2007 centre mainly on events within Aldi. And those events show that he was called upon periodically to make decisions regarding the direction of the negotiations - for example, as part of the Aldi internal review that occurred after Mr Brophy had sent documents on 25 May 2007, following which a number of requests were notified by Aldi to BBB. Mr Kopp played a somewhat remote role consistent with the notion that a final package was being developed under his general oversight but on the basis that, when complete, it would be submitted for his approval. 119There was no evidence before the primary judge justifying any finding that Mr Kopp had given that approval; and his Honour was correct so to hold. 120Reference has been made at [102] above to Mr Kopp's reasons for deciding not to proceed. As I have noted at [15], the primary judge accepted Mr Kopp's evidence without reservation. Mr Kopp's concerns related to, among other things, access and signage. Viewed objectively, these were concerns about matters of commercial importance in relation to a supermarket site. Signage was particularly important when the retail premises were to be in a basement not visible from the street. The access issue, concerned with whether vehicles taking shoppers to and from the premises (as well as carriers delivering stock) could make a right turn to or from Retreat Street, was of obvious significance. Both access and signage had been raised by Mr Brassington with Mr Bettar in advance of their meeting of 12 June 2007. They had been issues since October/November 2006 (see [28] and [36] above). BBB's position on the matter was as stated in Mr Bettar's email of 8 June 2007 to Mr Bart and Mr Bart's annotations by way of reply: essentially, that Aldi would have to accept whatever might be approved by the local authority and that, while BBB was willing to help on that front, the risk of an outcome unfavourable to Aldi was to be Aldi's risk. 121The position BBB took at trial was that Aldi had agreed to accept (or should have been content with) whatever the local authority agreed to on these two matters, with BBB committed to use its best endeavours - in other words, that Aldi was to accept the risk of an unfavourable outcome. 122A reasonable observer would not expect a supermarket operator such as Aldi to commit to a long-term lease without knowing precisely what was permitted regarding signage and access. BBB's submission that Mr Kopp's reasons were such that his decision was unfair towards BBB, capricious and not made in good faith is contrary to the evidence and a proper appreciation of its significance. It does not help BBB for it to say that the relevant matters had already been accepted by Mr Brassington since to do so overlooks the existence and significance of the condition concerning Mr Kopp's approval.

The commitment to proceed issue 123I turn now to the related proposition advanced by BBB that both what was said by Aldi and what was not said by Aldi (that is, Aldi's silence) should be seen to have engendered in BBB a legitimate expectation that Aldi would eventually enter into a formal agreement for lease. That proposition is central to the several aspects of the misleading or deceptive conduct case and the unconscionable conduct case. 124In that part of its appeal, BBB concentrates on two points of time: 13 November 2006 and 30 March 2007. 125At both those times, major elements and a transaction concept were settled. They were, of course, more definitively settled by March 2007. But it is clear that, both before and after each of the times in question, negotiations continued. 126Reference has been made to Mr Bettar's several diary entries suggesting that he had been assured that signing of a contract was imminent. It is necessary to have regard to what the diary entries actually said and also to examine the circumstances that prevailed when they were made. I shall consider the second matter first. 127Mr Bettar's diary entries were made at times at which he was simply not entitled, as an objective matter, to entertain the hope or expectation he sought to reflect by those entries. In particular: (a) shortly before 16 March 2007 (see [46] above), Mr Bettar wrote to Mr Brassington identifying 23 "outstanding points" that were to be the subject of further negotiations (see 116 above); (b) as at 30 March 2007 (see [53] above), Mr Huynh of BBB and Ms Donaldson of Aldi were in discussion and correspondence about the scope of works, an essential component of the agreement for lease documentation; (c) as at 16 May 2007 (see [65] above), BBB's solicitors had just received a letter from Aldi's solicitors about the unresolved matter of responsibility for outgoings and, within two days, the parties' disagreement on that matter had crystallised (see 116 above); (d) as at 12 June 2007 (see [84] above), a meeting had been scheduled for the following Tuesday to discuss a number of significant and unresolved matters (see [77] to [82] above), some of which assumed particular significance in correspondence over the next few days; (e) as at 3 July 2007 (see [92] above), the solicitors were still proposing new clauses and negotiating on them (see [93] to [95] above). 128Mr Bettar's repeated recording of statements of Mr Brassington that "signing" was but a short way off were inconsistent with Mr Bettar's own knowledge of the negotiating process and the stage it had reached at the time of each such recording. 129It is also important to note what Mr Bettar's diary entries actually said. 130The entry of 16 March 2007 was to the effect that it would be two weeks until receipt of a signed contract from Aldi - but the period of two weeks was "from agreement of the outstanding issues"; and, as has been noted, the items at 116 above were then unresolved and scheduled to be the subject of further negotiation. 131The diary entry of 30 March 2007 recorded a confirmation by Mr Brassington that "it would be two weeks maximum for lease to be signed and returned". Mr Brassington also said that "now we have resolved lease issues" which, as Mr Bettar must have known, was not correct. The somewhat sharp exchanges of 13 April 2007 illustrate this. 132The diary entry of 16 May 2007 recorded an assurance of Mr Brassington "If all OK". In fact and as Mr Bettar must have known, all was not "OK". This was shown by the letter sent two days later by BBB's solicitors to Aldi's solicitors expressing disagreement with Aldi's position on outgoings and proposing a different clause. 133Central to BBB's case is the proposition that a point of "agreement in principle" was reached at one of the two points critical to its case, that is, 13 November 2006 and 30 March 2007. The concept of "agreement in principle" that BBB espouses is to the effect that all that remained thereafter was resolution of "mechanical issues"; and that Aldi, by indicating such "agreement in principle", then standing by as BBB continued to incur expenditure and ultimately not executing a formal agreement, engaged in misleading or deceptive conduct or conduct that was unconscionable. 134The primary judge did not accept any part of that proposition. His decision was correct. The course of the correspondence and negotiations left no doubt that there existed, after 13 November 2006, a number of matters still to be agreed and settled. BBB's letter of 13 November 2006 showed quite clearly that that was so. It is true that preparation of legal documentation commenced in November 2006 and that lawyers were then instructed on both sides. Their role, clearly enough, was to prepare formal documents to protect their respect clients' interests and to conduct the further negotiations that were obviously to occur. 135I have referred at [47] above to outstanding matters identified as at 12 March 2007 - some four months after the first of the significant dates identified by BBB (13 November 2006) and about two weeks before the second (30 March 2007). Another list, covering different items as at 27 April 2007, was set out in Mr Brassington's email referred to at [59] above. One of the unresolved matters concerned outgoings. That issue was still outstanding at 15 May 2007 and had not been agreed three days later (see [66] above) - indeed, it was then the subject of clearly articulated disagreement. And this was so despite the fact that, in the interval (specifically, on 10 May 2007), Mr Brassington had told Mr Bettar that all the attachments to the lease had been finalised. 136This matter of outgoings was dealt with by KQ Lawyers simply by including in "final form" documents submitted on 21 May 2007 the clause they preferred rather than the clause Aldi's solicitors preferred. And they submitted that "final form" under cover of a letter stating that their client, BBB, would not be bound by the lease or agreement until final exchange. 137Thereafter, on 29 May 2007, there emerged four matters in the documents on which there was no agreement (see [73] above); and on 8 June 2007, five matters were identified as requiring discussion (see [77] above). 138The basic problem with these aspects of BBB's case lies in the notion that there was, at either of the points relied on by BBB, what amounted to an "agreement in principle" from which it was unconscionable for Aldi to resile or which put Aldi into such a position that its subsequent conduct, culminating in its refusal to enter into a formal contract, was misleading or deceptive. 139It is worth recalling some milestones that BBB regards as being of particular significance: (1) The events of November 2006 culminated in the production of the heads of agreement and a consensus that they reflected the parties' "agreement in principle". (2) On 16 March 2007, Mr Brassington said to Mr Bettar that, from their agreement of outstanding issues that day, it would be "two weeks and you will have a signed lease contract from Aldi." (3) On 16 May 2007, Mr Brassington said to Mr Bettar that all the attachments to the lease had been finalised and handed to Aldi's solicitors, that it was then "in Aldi's hands to exchange" and that, "if all is OK", BBB would "get a signed lease out of Aldi within a week to ten days." 140The creation of the heads of agreement in November 2006 represented, in real terms, a beginning as well as an end. The commercial negotiation conducted by businessmen had produced a commercial consensus on what they regarded as the main terms of their proposed transaction. The solicitors were then put to work. Serious negotiation on documentation was beginning. I have not referred to all the correspondence and conversations between the respective solicitors that followed. It cannot be disputed, however, that they pursued with diligence and dispatch the not inconsiderable task of translating into formal agreements the broad consensus on commercial terms contained in their clients' heads of agreement. 141The statement of 16 March 2007 was not made in some kind of vacuum. A meeting on that day had sorted out "various points in question" (according to Mr Bettar's letter of 20 March 2007); and Mr Brassington, according to what he said to Mr Savell on 20 March 2007, thought that the parties were "near to finalising our lease negotiations". But the correspondence and events of the following days and weeks showed that more remained to be done. Progress was made in late March but, by 27 April 2007, Aldi still had requirements (detailed in Mr Brassington's letter of that date) which were neither irrelevant nor insignificant. 142Mr Brassington's statement of 16 May 2007 to Mr Bettar was made in a context where, on the immediately preceding day, Aldi's solicitors had told BBB's solicitors that there was an outstanding issue and BBB's solicitors, two days later, conveyed to Aldi's solicitors BBB's disagreement on the position taken by Aldi on that issue. The respective solicitors were obviously in contact with their clients. The positions the solicitors took must be seen as having been taken with their clients' knowledge and on their clients' instructions. 143Thus, when Mr Brassington made his statement to Mr Bettar on 16 May 2007, BBB's solicitors were already in possession of Aldi's solicitors' letter of 15 May 2007 raising the matter about responsibility for outgoings. Furthermore, BBB's solicitors' letter of 18 May 2007 made it clear, first, that there was no agreement on outgoings and, second, that BBB would not be bound by the documents until formal exchange. 144A statement that BBB would not be bound until formal exchange was a feature of a number of KQ Lawyers' letters to Mr Brophy. It was put on behalf of BBB that these statements were included without instructions and merely reflected a general practice of KQ Lawyers to make a formal reservation on behalf of their clients. But surrounding circumstances show that the statement accurately reflected BBB's position. 145In this connection, reference will be made presently to a meeting between BBB representatives and representatives of "another group" on 15 June 2007. It is instructive to note correspondence between BBB and Aldi on that very day. By email dated 15 June 2007, Mr Bettar replied to an email of 13 June 2007 from Mr Savell of Aldi. Mr Bettar's email was as follows: "Thanks for your email:

Haven't received architectural's [sic] yet so I cannot discuss signage with Phillip until I receive them.
Outgoings, this was just a guide with no commitment. Jon we plan to retain the entire development ... bearing this in mind we are more than conscience [sic] about the costs and would be doing our utmost to keep these low and within reason. As mentioned this figure was an estimate given to us from a strata manager. 3.As far as the opportunity to purchase - we are happy to give you is - FIRST and LAST Right of refusal. Jon, Phillip will be leaving for overseas on Tuesday morning ...I will not be able to discuss with him signage if I do not receive plans." 146The precise meaning of what Mr Bettar was saying here is unimportant. What is important are his statements, first, that he was not in a position to discuss signage, second, that what he had earlier said about outgoings was "just a guide, with no commitment" and, third, that BBB was "happy" to give Aldi "first and last right of refusal". 147Mr Savell's response of 16 June 2007 was: "I appreciate your comments and respond as follows:
I've asked our architects to make the amendments to the plans and should have them on Monday 18 June.
I need and and [sic] answer on outgoings, this has been raised a number of times, but ALDI have still no real idea on this. I think the only way to move forward on this is that ALDI's outgoings are capped to a maximum of $40,000 p.a. Bear in mind ALDI pays all its own rubbish removal, cleaning, electricity, waster, phone, card board removal etc, so outgoings are generally limited to just rates and land tax. Paul 99% of ALDI's leases are Gross Rent so we don't come across this much and in the 5 years I've been with ALDI I've only ever done gross rents.
Paul, how would you intend the last right of refusal to work? I look forward to your feedback, please feel free to contact me on mobile XXXX XXX XXX if you wish to discuss." 148Significantly, Mr Savell said that he needed "an answer on outgoings" which had been "raised a number of times" but Aldi still had "no real idea on this". And in relation to the last item in Mr Bettar's email, Mr Savell asked, quite simply, "how would you intend the last right of refusal to work?" 149As late as mid-June 2007, therefore, active interchange was continuing between the leading commercial negotiators. They concerned matters of significance. There was no settled arrangement and commercial decisions were still required on both sides. 150In the early part of July 2007, changes to draft documents were still being proposed and discussed by the solicitors. For example, new clauses for the agreement for lease and the lease were submitted by Mr Brophy on 3 July 2007 and there was further correspondence between solicitors on 6, 9 and 10 July 2007. 151It was not until mid-July 2007, following Mr Brophy's letters of 15 July 2007 to both Mr Kopp and KQ Lawyers, that there existed a finally negotiated and fully documented position agreed on both sides. 152It was this that Mr Kopp then proceeded to consider, following which Aldi made its decision not to proceed.

"Another group" 153I said that I would return to the matter of "another group" referred to in Mr Bart's notations on Mr Bettar's email of 11 June 2007 (see [82] above). I do so now in the context of BBB's reserving of its position in the KQ letter of 18 May 2007. 154The "other group" was IGA, a competitor of Aldi in the supermarket business. 155Mr Bettar gave evidence that he first had contact with Mr Gorman of IGA on or about 4 October 2006. Mr Gorman indicated IGA's interest in leasing space for a supermarket. Mr Bettar said he could not offer supermarket space as BBB was "about to reach a final agreement with Aldi" and was "committed". Mr Bettar tried to interest Mr Gorman in space at another location. 156The next contact between Mr Bettar and Mr Gorman relevant to the subject matter of these proceedings was in March 2007 when Mr Gorman contacted Mr Bettar by email. They met on 17 April 2007 and discussed the possibility of IGA leasing space on the ground floor for retail activities that Mr Bettar described as "complementary to Aldi in the basement". The conversation, as deposed to Mr Bettar, included the following: "He said: I like the idea [referring to complementary activities on the ground floor]. I would need to go back and find operators who may be interested. Have you signed the lease with Aldi yet? I said: We haven't signed yet, but it is imminent. He said: If you haven't signed with Aldi, please allow me to put an offer to you for your consideration. I said: I am more interested on the ground floor and I would really love to do a deal on the ground floor for a liquor shop. We need to get this in place quickly. My partner likes Aldi and he would not be interested in any offer from IGA. He said: As you haven't got a signed lease at least give me an opportunity. Please speak to your partner." 157Mr Bettar followed up with Mr Gorman about the ground floor possibility over the following three weeks or so. He telephoned Mr Gorman on 8 May 2007 to discuss that matter. His account of the conversation was as follows: "He said: What about the basement supermarket. Have you got the signed lease from Aldi yet? I said: Not yet. He said: Please allow me to send you an offer to consider. I said: I can't consider anything because Aldi is committed and I am committed." 158There was a further conversation on 15 May 2007: "He said: As you still haven't got the lease, just let me give you something to consider. I said: Look, you are pressuring me. I keep telling you the same thing. But if you want to give me something, it's up to you." 159On 23 May 2007, Mr Gorman wrote to Mr Bettar setting out the essential terms (area, term, rent and the like) on which IGA would be prepared to take a lease. 160On 25 May 2007, in response to a request from Mr Gorman, Mr Bettar sent to him a draft lease to IGA of the basement area the subject of the Aldi negotiations. Mr Bettar said in his covering letter (in words reminiscent of those used by KQ Lawyers in letters to Mr Brophy): "My lawyers will need to review it upon return. We cannot be bound by the contents until we countersign." 161This lease document had been prepared by KQ Lawyers on Mr Bettar's instructions. He told them to use the Aldi documentation and simply insert IGA's name instead of Aldi's name. Mr Bettar's instructions were conveyed to KQ by his emailing to them an annotated copy of Mr Gorman's 23 May 2007 letter. Among the annotations were "great" in respect of the lease term and "excellent" against the description of options. Against Mr Gorman's statement of rent ("$430.00 per square metre gross") appeared an annotation: "Ben: leave the $420/m but the minimum is $630,000 year 1." 162Mr Alexis of IGA sent Mr Bettar a letter of six pages dated 30 May 2007 setting out in particular detail "the commercial terms upon which IGA proposes to take a lease of" the basement premises. A term (plus options) and a rental per square foot were stated in this letter which was framed in terms that invited BBB to enter into a binding commitment to its terms, subject only to approval by the IGA board within 21 days. BBB did not accept that invitation. 163At Mr Gorman's request, a meeting took place on 15 June 2007 which was attended by Mr Gorman, Mr Bettar and Mr Bart. 164Thereafter, the negotiations with IGA appear to have been suspended (although they were revived after Aldi's withdrawal). The reason does not emerge and there was no specific finding on that aspect by the primary judge. Implicit in the case BBB seeks to make on appeal, however, is the proposition that, had the discussions with IGA produced a firm proposal by that company to take a lease of the basement on terms vastly more favourable to BBB than those of the Aldi transaction which had reached a state of advanced negotiation, BBB would have said to IGA, in effect, "It would be much more lucrative and commercially beneficial for us to accept your proposal than to continue with the Aldi transaction which is at an advanced stage of negotiation. But we simply cannot do so. We are committed to Aldi and must stick with the financially inferior and less advantageous Aldi deal. You must realise that, regardless altogether of the terms of the offer you have made, we only ever saw you as fall-back - to be taken up only if, for some reason, we were unable to complete with Aldi." 165On BBB's case, it would not have done business with IGA on any terms whatsoever while the Aldi negotiations continued; and it would have been for IGA to wait for as long as it took for the Aldi possibility to be exhausted before BBB considered itself free to conclude any contract with IGA. 166The primary judge did not accept that this was the position that BBB in fact took. His Honour was correct in his conclusion that the dealings with IGA demonstrated that BBB was not irrevocably committed to Aldi; and that the evidence suggesting that the IGA discussions were directed merely towards achieving some fall-back position was tailored in an attempt to blunt the sharp impact of the objective evidence concerning the dealings with IGA. 167The primary judge took the view that BBB's conduct in relation to IGA destroyed the argument that it had relied to its detriment on the allegedly misleading or deceptive conduct of Aldi. That was a correct view. BBB showed that, in the period March to May 2007, it was quite willing to countenance the possibility of turning its expenditure of effort and money to account in an alternative transaction with IGA. There can be no real doubt that, if IGA had made an offer on terms BBB considered more attractive than those of the Aldi proposal, BBB would have either accepted that offer and terminated its negotiations with Aldi or sought to use the IGA offer as a means of seeking to induce Aldi to agree to terms more favourable to BBB. BBB would not, as it were, have kept itself pure by rejecting IGA and continuing to negotiate on an unchanged and less advantageous basis with Aldi. 168As Mr Bart made clear in his email of 11 June 2007 to Mr Bettar, BBB would have "walked away" from Aldi "with a clear conscience" had the three week "exclusive period" granted to IGA produced a deal "at a higher rent and longer term". This suggests that, although BBB was irritated with the delays, it did not consider itself to be committed to Aldi; nor did it consider Aldi to be committed to BBB. BBB took the view that the basement area it was in the relatively early stages of incorporating into its building was still capable of being marketed to a rival supermarket operator.

169The events concerning IGA are of relevance to BBB's claim that it relied to its detriment on representations and silence on the part of Aldi. Certain other matters relevant to the matter should now be mentioned. 170The possible addition of a second basement to the development was raised by BBB with the local authority as early as June 2006 and there was evidence that, by early September 2006, BBB was keen to press ahead with a second basement. There was also evidence that Mr Bart considered the second basement to be an enhancement in its own right. In a letter of 17 July 2006 to Aldi which, in effect rejected Aldi's proposal that it should purchase a stratum of the building and pressed the idea of a lease, Mr Bart said: "What we have said all along is that in deciding to build a new floor in the building we would be seeking a rental return of in excess of $700,000 for the total floor and we were delighted to offer the space to Aldi." 171At that early stage of the parties' discussions, therefore, BBB made it clear that it had already decided "to build a new floor in the building". 172This early expression of BBB's position, coupled with its later discussions with IGA, showed that BBB saw the additional basement as a marketable commodity quite apart from Aldi.

The "on hold" decision and Wyndham Street 173Aldi did not dispute that, in late May 2007, there was an internal decision to put the BBB proposal "on hold" pending an internal review of the proposed transaction. Also in late May and early June 2007, Aldi looked at the possible alternative site in Wyndham Street. Aldi did not inform BBB of either of these matters. 174BBB says that these actions - taken without notice to BBB - bespoke sharp practice relevant to BBB's unconscionability case, as well as its case based on alleged misleading or deceptive conduct by silence. 175As the primary judge correctly noted, the "on hold" decision involved a temporary situation of relatively short duration and did not in fact amount to a cessation of negotiations. Mr Brophy continued to correspond with KQ Lawyers with a view to progressing documentation. Nor did the brief investigation of the Wyndham Street possibility produce any interruption. 176As the judge also correctly observed, the evidence did not provide a basis for a conclusion that BBB would have conducted itself in some different way had it been informed of what Aldi was doing. In particular and as his Honour noted, the evidence did not provide any basis for concluding that, for example, BBB would have acted differently in its discussions with IGA as an alternative tenant for the basement had it known of Aldi's internal discussions. 177It is significant that, at the very time at which Aldi's "on hold" decision was made, BBB was at the high point of its discussions with IGA. Mr Alexis's detailed letter to BBB was dated 30 May 2007 and the meeting between BBB and IGA took place on 15 June 2007. Aldi's unnotified "on hold" decision and consideration of the Wyndham Street possibility did not deprive BBB of an opportunity to pursue an alternative tenancy for the basement. BBB engaged in discussions with IGA without notice to Aldi, just as Aldi made the "on hold" decision and undertook consideration of Wyndham Street without notice to BBB.

Conclusion - the misleading or deceptive conduct case 178Central to BBB's case based on s 52 of the Trade Practices Act were two propositions: first, Aldi's conduct, whether by positive acts (including representations) or by silence, was misleading or deceptive or likely to mislead or deceive; and, secondly, BBB had suffered loss or damage "by" Aldi's conduct for the purposes of s 82 of the Act, with the word "by" indicating a notion of causation, a necessary element of which is that the victim has relied on the conduct. 179The primary judge correctly concluded that neither proposition was established by BBB. The foregoing survey of the evidence demonstrates that BBB was not misled or deceived and that Aldi's conduct was not likely to mislead or deceive it. This is because BBB knew and accepted, at all material times, that negotiation was in progress, that the process of negotiation straddled the heads of agreement stage (in the sense that negotiation occurred both before and after the parties acquiesced in the heads of agreement) and that the purpose of the ongoing negotiation was to produce a form of legal document acceptable to both parties. BBB also knew and accepted that the approval of Mr Kopp was a pre-condition to any commitment by Aldi. 180In addition and for reasons already stated (particularly in the discussion concerning IGA), BBB did not rely, in the relevant sense, on anything done or said or omitted to be done or said by Aldi. The evidence demonstrates that BBB incurred expense in commencing the planning and construction of the second basement before it had completed its negotiations with Aldi because it viewed that proposal as a commercially more beneficial arrangement of the available floor space. 181As is outlined at [170] to [172] above, BBB had, from a very early stage in its discussions with Aldi and certainly before it had made any real progress with the design and construction of the second basement, made it clear that it regarded it as to its own independent commercial advantage to incorporate that element into its development.

Conclusion - the unconscionable conduct case 182The primary judge was also correct to reject BBB's case based on unconscionable conduct, both in the general law sense and as relevant to s 51AA and s 51AC of the Trade Practices Act. Each party to the negotiation was a commercially sophisticated business well able to safeguard its own interests. Each employed lawyers and obviously took heed of its lawyers' advice. Neither occupied, as against the other, a position of weakness or vulnerability or disadvantage. There was accordingly very limited scope for any finding of unconscionability. 183The primary judge accepted that a finding of unconscionable conduct on Aldi's part might have been warranted if Aldi had made a deliberate decision at some point not to proceed towards completion of the negotiation and then failed to communicate that decision promptly to BBB, so that BBB continued nonetheless to incur expense. But as the judge correctly found, Aldi did not behave in that way. BBB incurred the expense for its own commercial benefit. 184The primary judge's decision on BBB's unconscionability claim was correct. No aspect of Aldi's conduct involved dishonesty, sharp practice, cynical resort to technicality or intrinsic unfairness.

Conclusion - the estoppel case 185The estoppel case raised considerations very similar to those already discussed. That case had two aspects to it. The equitable estoppel aspect proceeded on the basis that Aldi had made representations to BBB or induced an assumption in BBB as to the eventual execution of an agreement for lease from which it was unconscionable for Aldi to resile. The conventional estoppel aspect was based on an allegation of a mutually held assumption of the parties. 186The primary judge was correct to reject both those postulated bases of liability on Aldi's part. The assessment of the representations and the conclusions already expressed on the matter of reliance are applicable also to the equitable estoppel claim. This was not, by any stretch of the imagination, analogous with a case where one party gives to the other an assurance that a particular document already prepared will be signed. To the contrary, Aldi's position, as accepted by BBB throughout, was that there would be no commitment on either side unless and until an agreement for lease was executed and that approval of any final document by Mr Kopp was a pre-condition to commitment. That point was never reached. 187The conventional estoppel case suffered from the fatal defect identified by the primary judge, that is, that the only mutual or shared assumption that was shown to have existed was that negotiations would continue until a final document had been produced and it would then be for each party to make a decision whether to enter into a legally binding commitment. The different assumption for which BBB argued was not made out on the evidence and the primary judge was correct so to find.

Disposition 188BBB has not made good any of the challenges it makes to the decision below. The orders I propose are:

Appeal dismissed.
That the appellant pay the respondent's costs of the appeal. 189SACKVILLE AJA: I agree with the orders proposed by Barrett JA and generally with his Honour's reasons. I wish to make one additional observation. 190BBB at trial identified three alternative dates on which, on its case, Aldi was no longer free to withdraw from negotiations (primary judgment (at [206]). These were:

8 October 2006;
8-13 November 2006; or
30 March 2007.

191Most attention at the trial seems to have been devoted to the first two of these dates. On appeal, the focus shifted somewhat to Aldi's conduct leading up to 30 March 207. 192The primary judge made findings adverse to BBB's case that it had acted to its detriment in reliance on what were said to have been assurances given by Aldi from October 2006 that it was committed to the lease. The findings included these (at [226], [228]): "...it is very hard to identify anything done by BBB, let alone done to its detriment, in reliance on the assurances said to have been given by Aldi. By the time the commercial terms had been agreed (in the period 8 to 13 November 2006), BBB was committed to its redesign, to accommodate an extra basement level, and s 96 application. In my view, that reflected BBB's appreciation that the redesign would be to its commercial advantage. It could not have been a redesign undertaken on the faith of any commitment by Aldi, because the only commitment was one to continue (as Aldi did) to negotiate in good faith. True it is that BBB continued to invest time and money in dealing with Aldi over the scope of works. But Aldi too was investing time and money in the same process. ... on the view that I take of the evidence, it does not support the conclusion that BBB was acting on the faith of some understanding that Aldi was committed in principle and would commit itself in law. The correspondence emanating from its solicitors was to the contrary. Its dealings with IGA were inconsistent with any such understanding. If BBB regarded itself as free to negotiate with IGA, it must equally have regarded itself as free to commit to a legally binding agreement with IGA. I do not think that it was mere coincidence that, at the time BBB was negotiating with IGA, its solicitors were insisting that it was free to withdraw from the 'agreement' with Aldi." (Emphasis added.) 193The primary judge also did not accept (at [229]) the "self-serving" evidence of Messrs Bart and Bettar as to reliance. Their evidence was inconsistent with the state of negotiations between BBB and Aldi and between BBB and IGA. 194However, the primary Judge did accept Mr Kopp's evidence without reservation. Mr Kopp said that when he instructed Mr Savell to send the letter of 2 August 2007 terminating negotiations with BBB, he did not inquire as to how much BBB had spent on the development with a view to accommodating Aldi's requirements. When asked whether BBB's expenditure worried him, Mr Kopp said: "It didn't worry me because it wasn't specifically for us". 195Mr Kopp also gave evidence that before the letter of 2 August 2007 was sent, BBB had told Aldi that it had another prospective tenant interested in the space who was prepared to take a lease straight away. This was consistent with Mr Savell's evidence that Mr Bettar told him on 12 June 2007, that Aldi should sign the lease within a few days because BBB had another tenant who was willing to pay more rent and was ready to go. 196The primary Judge's findings and the evidence to which I have referred make it difficult to conclude otherwise than that BBB intended to carry out the physical redevelopment of the basement because the redesign of the building and the reallocation of usable floor space was to its commercial advantage. The advantage was not merely that the space would appeal to Aldi, with which BBB was conducting negotiations. It undertook the development to make the space more attractive to prospective tenants generally. 197Mr Kopp was correct in his belief that the development was not specifically for Aldi's benefit. No doubt BBB hoped that Aldi would take the lease, but if it did not, the new space was to be available to other prospective tenants. Mr Kopp was also correct in his belief that BBB could always negotiate with other parties to lease the space. Indeed, BBB had been negotiating with IGA during the period leading to the termination of dealings between BBB and Aldi. 198In these circumstances, as Barrett JA has indicated (at [170] to [173] above], BBB cannot make out a case that it incurred expenditure in the development in reliance on Aldi's conduct. The findings of the primary judge are not consistent with the conclusion that BBB obtained planning approval for and undertook work on the development on the faith of a belief that Aldi was committed to leasing the premises. BBB acted in this way for its own commercial reasons, independently of any belief as to the fate of negotiations with Aldi.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2012

Trade Practices Act 1974(Cth)

At a glance

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Judgment (15 paragraphs)

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