Carlene Randall v City of Canada Bay Council

Carlene Randall v City of Canada Bay Council - [2015] NSWSC 1759 - NSWSC 2014 case summary — Zoe

[3]

Summary

In these proceedings the plaintiff ("Ms Randall") invokes Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") Pt 36, r 36.15 and the Court's inherent jurisdiction to set aside judgments and orders made against Phoenix Commercial Enterprises Pty Ltd ("Phoenix") by White J in 2009 and that were subsequently varied by the Court of Appeal in 2010. A liquidator was appointed to Phoenix on 25 November 2011 and it was deregistered on 6 January 2013.
Ms Randall and her husband, Mr Ferdinando Agresta, were shareholders and directors of Phoenix with other family members. Phoenix was the lessee from the Council of Concord under two relevantly identical leases of land (the "Leases") on which Phoenix was entitled to erect large advertising structures. The defendant (the "Council") is the successor to the Council of Concord.
In June 2003 the Council terminated the Leases for unpaid rent. Phoenix challenged the Council's termination of the Leases in this Court. The Council cross-claimed for unpaid rent. In Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2009] NSWSC 17; (2009) 14 BPR 27,565 ("White J's Judgment"), White J held that the Council did owe Phoenix some money but that it was less than Council's rent claim. After allowing for a set-off, White J entered judgment against Phoenix in favour of the Council for $948,671.55.
Phoenix appealed and the Council cross-appealed. In Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 (the "CA Judgment"), the Court of Appeal dismissed Phoenix's appeal and upheld the Council's cross-appeal. The success of the cross-appeal eliminated the amount which White J had found the Council owed to Phoenix. The absence of this set-off meant that the Court of Appeal increased the Council's judgment against Phoenix to $1,626,612.01.
Ms Randall's case in these proceedings was argued for her by Mr Agresta. The Council did not oppose Mr Agresta being given leave to appear on her behalf. She contends that both the proceedings before White J and the Court of Appeal were tainted by two categories of misrepresentation made to both Courts by the Council so that the judgments and orders against Phoenix should be set aside. Ms Randall also seeks the reinstatement of Phoenix.
Mr P.T. Newton of Counsel appeared for the Council. The Council denied the misrepresentations, challenged Ms Randall's standing to seek relief and submitted that the matters now sought to be relied upon would have made no difference to the outcome in any event.
The Court has determined that Ms Randall's proceedings should be dismissed by reason of these conclusions: 1. Ms Randall has standing under r 36.15 and the Court's inherent jurisdiction to bring these proceedings. 2. There were no fraudulent misrepresentations by the Council insofar as it had submitted to White J and the Court of Appeal that it had not acted as a consent authority for the purpose of clause 15(d) of the Leases. 3. There were no fraudulent misrepresentations by the Council insofar as it had submitted to White J and the Court of Appeal that it had validly terminated the Leases. 4. There is no basis to reinstate Phoenix under s 601AH(2) of the Corporations Act 2001 (Cth). 5. None of the various miscellaneous arguments raised by Ms Randall succeed. Even if they were correct, they would not justify the Court granting the relief sought by Ms Randall.

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The proceedings before White J and in the Court of Appeal

When the dispute between Phoenix and the Council initially arose, Phoenix had solicitors who prepared its original statement of claim. At least Phoenix's affidavit evidence in chief was prepared with legal assistance. Another firm of solicitors prepared Phoenix's further amended statement of claim, which by leave of White J was filed on 26 March 2008, less than a month before the hearing. By the time of the hearing before White J, Phoenix no longer retained solicitors. However, it was represented at the hearing by Mr A.P. Cheshire of Counsel, who was only briefed on the Friday afternoon before the hearing was to commence on the following Monday. The Council was represented before White J by Mr B.A. Coles of Queen's Counsel leading Mr J.E. Armfield of Counsel.
The issues before White J and the factual origins of the original dispute between Phoenix and the Council are set out in the introductory paragraphs of White J's Judgment : 1 This case concerns the construction of the terms of a lease and questions of set-off. 2 The plaintiff was the lessee from the Council of Concord of lands in Victoria Avenue and Young Street, Concord to be used for the purposes of erecting advertising structures. The defendant is the successor of the Council of Concord and has the same rights and liabilities as it. They can both be referred to as "the Council" without distinction between them. 3 There were two leases in almost identical terms. On 18 February 1998, the parties executed memoranda of variation of each lease in the form of deeds of variation dated 1 February 1998. Each deed was in identical terms. After execution of the deeds of variation, each lease was for a term which terminated on 1 January 2008. In substance, after the deeds of variation were entered into, the entire rent for each lease was to be $900,000 of which $450,000 was paid on execution of the deeds of variation. The balance of $450,000 was payable, with interest, within five years. Interest was to be paid on each $450,000 of rent remaining outstanding after execution of the deeds of variation. Failure to pay the outstanding rent within five years of the date of the deed of variation would constitute a breach of an essential term of the lease. 4 The plaintiff did not pay rent of $900,000 and interest by 1 February 2003. On or about 3 February 2003, it paid $20,578.66. The Council claimed that $900,000 plus interest became due and owing from 1 February 2003. After taking into account the payment of $20,578.66, the total amount the Council claimed was owed as at 1 February 2003 was $1,104,456.78. 5 On 25 June 2003, the Council gave notice of termination of each lease for the plaintiff's failure to pay rent. At about the same time, it re-entered each of the premises. It is admitted on the pleadings that it thereby determined each lease. 6 The plaintiff claims that the Council had no right to re-enter and determine the leases. 7 Clause 15(d) of each lease as varied provided: Should the Lessor in its capacity as consent authority approve the erection of a general advertising structure on other land within the Lessor's Local Government Area or control then within (1) month of such approval the Lessor will pay to the Lessee an amount equivalent to 25% of the Rental corresponding to the amount of time remaining within the Term. 8 Clause 15(e) required the lessor to pay interest at a fixed rate of 10 percent per annum on all moneys due by the lessor to the lessee. As events happened, this was a higher rate of interest than the variable interest payable on the outstanding rent of $450,000. 9 In its further amended statement of claim the plaintiff pleads that on or about 22 February 2000, the Council in its capacity as consent authority approved the erection of three general advertising structures in the local government area. These were illuminated advertising display cases in bus shelters on the footway of Majors Bay Road and Gallipoli Street, outside 142 Concord Road, and outside 48-54 Majors Bay Road. 10 The plaintiff contends that on the proper construction of the leases, clause 15(d) operated in respect of second and subsequent approvals such that the meaning of "Rental" in the expression "Rental corresponding to the amount of time remaining within the Term" meant the unpaid prepaid rent less the amount to be paid by the Council to the plaintiff in respect of the first or subsequent approvals. In other words, the plaintiff contends that in respect of the approval of the first general advertising structure the Council became liable to pay 25 percent of the rent abated for the amount of time remaining within the term. In respect of the second approval (that is the approval of the second structure) the plaintiff contends that the Council was liable to pay 25 percent of the rent after setting off the amount payable by the Council in respect of the first approval; and so on in respect of subsequent approvals. 11 The plaintiff contends that the moneys due by the Council pursuant to clause 15(d) of the lease and interest payable on those moneys pursuant to clause 15(e) should be set-off against the plaintiff's liability for rent and interest by appropriating the moneys due to it against the debts payable by it in the way most favourable to it, namely, by appropriating them first to the obligation to pay rent, and secondly to interest. In its further amended statement of claim the plaintiff pleads that after setting off moneys due by the Council under clause 15(d) and interest due under clause 15(e) against its liability for rent and interest, all that was owing by it as at 1 February 2003 was an amount of $72,900.56 representing interest. It paid $20,578.66 on or about 6 February 2003 thereby, according to the plaintiff, reducing the interest outstanding to $52,321.90. The plaintiff contends that whilst the obligation to pay the due rent was an essential term of the lease, the obligation to pay interest on rent was not. 12 The plaintiff further claims that by issuing notices dated 13 May 2003 which asserted that rent was owing, the Council, in trade and commerce, engaged in conduct which was likely to mislead, contrary to s 42 of the Fair Trading Act 1987 (NSW), because no rent was due. It contends that by reason of that conduct the plaintiff lost the opportunity to pay the lesser amount which would have been due had the amounts under clause 15(d) been taken into account and lost the opportunity to seek an injunction restraining the defendant from re-entering the premises or to seek relief against forfeiture. It claims damages pursuant to s 68 of the Fair Trading Act. It also contends that the Council was not permitted to keep the advertising structures erected on the demised premises. The plaintiff contends that as the Council was not entitled to determine the leases, it was entitled to remove the advertising structures erected on the demised premises. It seeks an order requiring the Council to allow it to remove those structures. 13 The principal questions which potentially arise on the existing pleadings are: a) whether by reason of resolutions of the Council passed on 22 February 2000 and the Council's permitting the subsequent erection of three bus shelters with advertising display cases, the Council became liable to make a payment or payments pursuant to clause 15(d); b) if so, whether the Council was required to make one payment only or more than one payment, and if the latter, whether the amounts due were to be calculated in the cascading manner contended for by the plaintiff; c) if moneys were owed by the Council under clause 15(d) together with interest under clause 15(e), whether amounts due by the Council should be treated as payments by the plaintiff on account of rent either pursuant to the express terms of the lease or on the principles of equitable set-off; d) whether the Council was entitled to give notice of termination of the leases and re-enter the premises; e) if not, whether the plaintiff is entitled to recover damages arising from its loss of the lease when it did not give notice to the Council that it treated the Council's notice of termination and re-entry as a repudiation and did not itself terminate the leases; f) whether the damages claimed by the plaintiff were too remote; g) whether the sending of the notices of 13 May 2003 was "in trade or commerce"; h) whether by sending the notices the Council engaged in conduct which was likely to mislead or deceive contrary to s 42 of the Fair Trading Act, i) whether any of the damages claimed by the plaintiff were caused by misleading or deceptive conduct engaged in by the Council; j) whether the plaintiff should have been permitted to remove the advertising structures and if so, whether an order should now be made to allow it to do so; k) the quantum of damages; and l) whether the Council is required to give credit on its cross-claim for rent and interest for moneys it received after re-entering the lands from licences granted to third parties for use of the advertising structures erected on the lands. 14 When the parties were advised that I would deliver judgment, the plaintiff foreshadowed that it would seek leave to further amend the statement of claim and re-open to tender further documents supporting its further claims. I deal with that application at paras [103]-[128] below. The reasons which follow deal with the plaintiff's case as pleaded in the further amended statement of claim (being the last pleading the plaintiff has leave to file) and as presented at the hearing on 7 and 8 April 2008 and in subsequent written submissions.
Because of its importance to the present proceedings, it is necessary to set out White J's findings in relation to the termination of the Leases, in particular the question of what notices were given: 39 On 23 January 2003, a solicitor acting for the Council wrote to the plaintiff advising that the second instalment of rent of $450,000, together with interest, was due for payment on 1 February 2003 in respect of each lease. He advised that the interest payable was $167,359.72 and that the total indebtedness of the plaintiff as at 1 February 2003 was $617,359.72, in respect of each lease. 40 On 6 February 2003, the plaintiff paid $20,578.66 described as "one month's rental payment" and, implicitly, requested that the Council agree to accept monthly rental payments. On 20 February 2003, the plaintiff proposed that it acquire the freehold title to the land or alternatively that it obtain a 21-year term with monthly rental payments commencing at $20,600 per month. On 28 February 2003, Abbott Tout, solicitors for the Council, advised that the plaintiff's proposal in its letter of 20 February 2003 was not acceptable to the Council. They advised that the total indebtedness of the plaintiff as at 1 February 2003 was $617,359.72 in respect of each lease. They advised that if payment were not received within seven days, they were instructed to take immediate action in accordance with the terms of the lease without further notice. 41 On 14 May 2003, Abbott Tout served a document described as a notice of breach of covenant. It is this notice which is alleged to be misleading. It was addressed to the plaintiff (described as the "Tenant") and stated as follows: The Tenant is the lessee of lot 5 in deposited plan 778667 located adjacent to Victoria Avenue at Concord West and the lessee of lot 27 in deposited plan 719909 located parallel to Young Street at Concord (together, Premises). By leases of the Premises dated 9 April, 1996 from Concord Council (now known as the City of Canada Bay Council (Council)) to the Tenant (Leases) and the variations of Leases dated 18 February, 1998 (Variations), the Tenant covenanted to pay Rental as defined in the Variations to the Council within a period of five years from the date of execution of the Variations. The Tenant has failed to make the payments. Take notice that the Council requires the Tenant to comply with its obligations under the Leases and the Variations by paying the Rental and all other amounts owing under the Leases and the Variations within 21 days of the date of this notice. 42 As previously noted, on 25 June 2003, the Council served a document described as a notice of termination. That notice stated that by the two leases the plaintiff had covenanted to pay "Rental" as defined in the variations of leases within a period of five years from the date of execution of the variations. The notice stated that the tenant had failed to make the payments of rent and that the Council terminated the leases effective immediately. As previously noted, it is admitted on the pleadings that "on 25 June 2003 the Defendant issued notices purporting to terminate the Leases and at about the same time re-entered both sets of premises thereby determining the leases".
Because they feature in these reasons, the Council's Notice of Breach of Covenant (the "Breach Notice") is fully reproduced in Schedule One and the Notice of Termination (the "Termination Notice") in Schedule Two to these reasons.
In considering whether clause 15(d) of the Leases had been triggered, White J came to the view (White J's Judgment at [69]) that the three bus shelters in question were general advertising structures within the meaning of clause 15(d). His Honour then went on to consider whether the Council had approved the bus shelters in its capacity as a "consent authority". His Honour held that while the Council did not give its approval in its capacity as the consent authority under the Environmental Planning and Assessment Act 1979 (NSW) (the "EPAA"), it had done so in its capacity as a consent authority under the Roads Act 1993 (NSW) (the "RA").
Because of its importance to the present proceedings, it is also necessary to set out his Honour's reasoning on this point in full: 70 It was not every approval to the erection of a general advertising structure which was caught by clause 15(d). To be the subject of clause 15(d) such an approval had to be given by the Council in its capacity as a "consent authority". The phrase "consent authority" was not defined in the lease. Mr Coles QC and Mr Armfield submitted that this was a reference to the Council acting as a consent authority pursuant to the Environmental Planning and Assessment Act in relation to a development application or an application for a complying development certificate under that Act. They submitted that the Environmental Planning and Assessment Act defined the Council's role as a consent authority and that the Council did not act in such a role unless and until it received a development application or an application for a complying development certificate. 71 The bus shelters were erected on footpaths which were public roads. The roads were not zoned. In passing the resolution of 22 February 2000 the Council was not exercising any function as a consent authority under the Environmental Planning and Assessment Act. However, the Council was the "roads authority" for those roads (Roads Act 1993 (NSW), s 7, Section 138(1)(a) of the Roads Act provides that a person must not erect a structure or carry out a work in, on, or over a public road, otherwise than with the consent of the appropriate roads authority. Accordingly, Adshel needed the consent of the Council to erect the bus shelters. The Council consented to the erection of the bus shelters by its resolution of 22 February 2000 and its communication of that resolution to Adshel. As it was a public authority whose consent was required to the erection of the structures, and as it gave that consent, I consider that the Council approved of the erection of the structures in its capacity as consent authority. 72 It was submitted for the Council that clause 15(d) contemplated that the Council would be required to consider a much wider range of matters than would be appropriate to be considered for the exercise of functions under s 138 of the Roads Act, and this showed that the expression "in its capacity as consent authority" meant in its capacity as consent authority under the Environmental Planning and Assessment Act. I do not accept either premise implicit in that argument. There is nothing in clause 15(d) which assumes that the Council will be acting in a capacity where it is required to take into account any particular range of matters in deciding whether or not to approve of the erection of a general advertising structure. In any event, there is nothing in s 138(1) of the Roads Act which confines the matters to which the Council should have regard in deciding whether to give or withhold its consent to the erection of a structure on a public road. It was submitted for the Council that the only appropriate matters to be taken into account in exercising the function under s 138(1)(a) would be whether or not the erection of the structure would impede the flow of traffic. I see no reason why that should be so and why the Council would not be entitled under that section to take into account aesthetic considerations. 73 If it had been intended that the expression "consent authority" should be limited to a consent authority under the Environmental Planning and Assessment Act, it would have been easy so to define the expression. In the absence of such a definition, I consider that the clause 15(d) is satisfied and that relevant approval was given by the Council in its capacity as a public authority whose consent was required to the erection of the structure. 74 For these reasons, I conclude that by reason of the communication to Adshel of the Council's resolutions at its meeting of 22 February 2000, the Council did, in its capacity as consent authority, approve of the erection of ten general advertising structures on other land within its local government area within the meaning of clause 15(d) of the leases. Whilst approval was given for the erection of ten such structures, only the approval of three were relied upon by the plaintiff.
Having decided that clause 15(d) of the Leases was triggered, White J then went on to determine the extent of the Council's liability under that clause. His Honour concluded: 82 Accordingly, I do not accept that the potentially harsh operation of the clause can be mitigated by the construction contended for by the plaintiff. That potentially harsh operation is highlighted by the fact that the Council gave approvals for the erection by Adshel of ten general advertising structures. The fact that the plaintiff relies only on three such approvals does not affect this. To avoid giving the clause an unbusiness-like construction, it should be interpreted as requiring the Council to pay an amount equivalent to 25 percent of the rent corresponding to the amount of time remaining within the term, whether it gave one or more than one approval to the erection of a general advertising structure or structures on other land within the Council's area. 83 The plaintiff calculated that for each lease the amount of rent "corresponding to the amount of time remaining within the Term" as at 22 February 2000 was $714,375. The Council did not dispute that calculation. Accordingly, pursuant to clause 15(d), the Council became liable to pay 25 percent of that amount, namely $178,593.75 to the plaintiff in respect of each lease. It also was liable to pay interest on that sum pursuant to clause 15(e). I do not accept the plaintiff's contention that the Council was liable to pay $412,998.04 pursuant to clause 15(d) by reason of the grant of three approvals.
His Honour ultimately determined that there should be a set-off between the amount which he had found the Council owed Phoenix under clause 15(d) of the Leases and the rental owing by Phoenix to the Council (that unpaid rent being the subject of the Council's cross-claim before White J): 95 The Council issued notices purporting to terminate the leases for non-payment of rent. Its right to do so was challenged on the ground that no rent (as distinct from interest under clause 15(g)) was owing at the time of the purported termination. For the reasons above, I do not accept that contention. Rent was owing notwithstanding that the Council was liable under clause 15(d) to pay $178,593.75 and that the interest which had accrued on that sum from 22 February 2000 was set-off against rent and reduced the amount owing. Accordingly, the leases were validly terminated.
His Honour concluded: 129 It follows that under each lease the plaintiff is owed a debt by the Council of $178,593.75 plus interest at the rate of ten percent per annum from 22 February 2000. Otherwise the plaintiff's claims should be dismissed. The application for leave to amend will be dismissed. 130 The Council is owed a debt by the plaintiff pursuant to each lease of $450,000 plus interest from 1 February 1998 at the rate of two percent above the ninety-day AFMA Bank Bills Interest Rate. There should be a set-off of judgments so that a judgment is entered for the Council against the plaintiff for the difference (see S R Derham, The Law of Set-Off, 3rd ed (2003) at [2.78]). 131 I direct counsel for the defendant to bring in short minutes of order in accordance with these reasons and a calculation of the amounts owing by the defendant to the plaintiff and by the plaintiff to the defendant. I will then hear the parties on costs and give directions in relation to the balance of the plaintiff's notice of motion if it is to be pursued.
The final orders made by his Honour are set out in paragraph [51] below.
Phoenix appealed against White J's Judgment. Its notice of appeal contained 19 grounds, the burden of which was to seek to reargue all of the matters which had been rejected by White J. For present purposes, those grounds which might be relevant are: 13. The Judge erred in finding that the leases were validly terminated by the Respondent. 14. The Judge erred in failing to find that the Respondent was not entitled to terminate the leases since no sums were owing from the Appellant alternatively no rent was owing from the Appellant alternatively no valid demand had been made. 15. In the event that any sums were owing from the Appellant to the Respondent, the Judge erred in failing to hold that the Respondent wrongfully terminated the leases on the grounds that no valid common law demand was made alternatively no valid notice was served pursuant to section 129 of the Conveyancing Act 1919. 16. The Judge erred in failing to find that the Respondent wrongfully terminated the leases.
The Council cross-appealed. It propounded three grounds, only one of which is now relevant: 2. His Honour erred in finding that the consent given by the cross-appellant to Adshel for the erection of bus shelters under the Roads Act 1993, constituted the cross-appellant's approval in its capacity as consent authority to the erection of General Advertising Structures within the meaning of that expression in clause 15(d) of the respective leases the subject of the trial proceedings.
At the hearing of the appeal Mr A.P. Cheshire of Counsel again appeared for Phoenix, instructed by Mr Agresta as a director of that company. Mr B.A. Coles of Queen's Counsel again lead Mr J.E. Armfield of Counsel for the Council. The Court of Appeal was constituted by Spigelman CJ, Campbell JA and Handley AJA. The principal judgment was delivered by Campbell JA. Spigelman CJ agreed with his Honour, subject to some additional observations which are not now relevant. Handley AJA agreed in the orders proposed by Campbell JA and briefly delivered his own reasons for that conclusion. Reference is made to Handley AJA's reasons in paragraph [22] below. What occurred in the Court of Appeal was recorded by Campbell JA in his reasons in the CA Judgment: The Proceedings in this Court 76 The Appellant has appealed against the judgment below. The Council has cross-appealed against the judge's finding that it had breached clause 15(d), and against the judge denying it an order for all its costs. The Appellant also seeks leave to appeal against the judge's refusal to permit amendment of the Statement of Claim, and has filed a Notice of Motion that this Court receive additional evidence on the appeal. All those applications have been heard together. 77 The Appellant also filed a Notice of Motion seeking to strike out the Notice of Cross-Appeal. However, at the hearing that Notice of Motion was not proceeded with. Issues Arising 78 The issues argued on the hearing in this Court are: (1) Were the bus shelters "general advertising structures" within the meaning of clause 15(d)? (2) Was the Council acting "in its capacity as consent authority" when it approved erection of the bus shelters? (3) On the correct construction of clause 15(d), (a) can the clause operate to cause more than one sum of money to become payable by the Council? (b) if it can operate to cause more than one sum of money to become payable by the Council, how are those several sums of money calculated? (c) is there a contractual right of set-off of any amount due under clause 15(d) against rental? (d) is there an equitable set-off of any amount due under clause 15(d) against rental? (4) Was the Notice of Termination valid? (5) Was the notice of 13 May 2003 misleading and deceptive? (6) If yes to (5), did any damages arise from the misleading and deceptive notice? (7) Who currently holds the title to the advertising structures? (8) Should the trial judge have allowed the Appellant to amend its Statement of Claim and re-open? (9) Should this Court should receive the additional evidence on the appeal? (10) Whether the judge was appellably wrong in his conclusion about the costs of the proceedings? 79 Though the Council filed a cross-appeal against the judge's decision that it was acting in trade and commerce in issuing the notices, it did not press that aspect of the cross-appeal. Outcome 80 The conclusions that I have reached are that the bus shelters were "general advertising structures" within the meaning of clause 15(d), but the Council was not acting in "its capacity as a consent authority" when it approved their erection. Thus clause 15(d) was never triggered. 81 For the Appellant to be able to obtain any greater measure of success than the judge accorded it, it would need to establish that the judge was wrong in holding that clause 15(d) could operate only once. I have concluded that the judge was correct in holding that it can operate only once. Thus, it is not necessary to consider the other matters upon which the Appellant would need to succeed to obtain a more favourable result than it obtained below. 82 I would reject the application to amend the Statement of Claim and re-open, and would also reject the application to receive additional evidence on the appeal. In consequence of the cross-appeal succeeding, I would alter the order for general costs in the court below by giving the Council all those costs.
Campbell JA disagreed with White J's conclusion that the Council had approved the bus shelters "in its capacity as consent authority" for the purposes of clause 15(d) of the Leases. Again, because of its importance to these proceedings, it is necessary to set out his Honour's reasoning in full: PART E - "In its Capacity as Consent Authority" Legislative Provisions 188 Some provisions about ownership and control of roads, and about the seeking and obtaining of development consents, were referred to as part of the argument about whether the Council grant its approval "in its capacity as consent authority". Legislative Provisions Concerning Roads 189 Section 232 Local Government Act 1919 vested the fee simple of roads within a local council's area in that council, unless another statutory provision said otherwise. In the present case we were not informed of any other statutory provision that said otherwise. Section 249 Local Government Act conferred the care, control and management of roads on the local council. 190 At the time, section 7(4) Roads Act 1993 had the effect of making the Council the "roads authority" for those public roads within its area that are relevant to the present case. 191 Other relevant provisions of that version of the Roads Act were: 138(1) A person must not: (a) erect a structure or carry out a work in, on or over a public road; ... otherwise than with the consent of the appropriate roads authority. Maximum penalty: 10 penalty units. 139(1) A consent under this Division: (a) may be granted on the roads authority's initiative or on the application of any person; and (b) may be granted generally or for a particular case; and (c) may relate to a specific structure, ... or to structures, ... of a specified class; and (d) may be granted on such conditions as the appropriate roads authority thinks fit. ... 140 A roads authority may at any time and for any reason revoke a consent under this Division by notice in writing served on the person to whom the consent was granted. 141 While a consent under this Division is in force, the taking of action in accordance with the consent is taken not to constitute a public nuisance and does not give rise to an offence against this or any other Act. 192 Section 145(3) Roads Act provides: All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority. Provisions of the EPA Act 193 At the time of execution of the original leases the EPA Act included in section 4 a definition that: consent authority, in relation to a development application, means: (a) the council having the function to determine the application, or (b) where an environmental planning instrument specifies a Minister or public authority (other than a council) or the Director as having the function to determine the application - that Minister or public authority or the Director as the case may be. development, in relation to land, means: (a) the erection of a building on that land, (b) the carrying out of a work in, on, over or under that land, (c) the use of that land or of a building or work on that land, and (d) the subdivision of that land, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition. development application means an application for consent under Division 1 of Part 4 to carry out development. development consent means consent under Division 1 of Part 4 to carry out development" 194 Division 1 of Part 4 stretched from section 75 to section 105. It contained a detailed regime regulating who could make development applications, the content of development applications, the procedures to be followed and matters to be taken into account in determining a development application. The Decision Below 195 The judge accepted that in passing the resolution of 22 February 2000, the Council was not exercising any function as a consent authority under the EPA Act. That finding is not challenged. However, the judge held that as section 138 Roads Act required the consent of (in this case) the Council before a structure could be erected in the part of the public road that constituted the footpath, and the Council gave that consent by its resolution of 22 February 2000 and its communication of that resolution to Adshel, that amounted to the Council approving of the erection of the structures in its capacity as consent authority. Discussion 196 The expression "in its capacity as consent authority" appears in both clause 18 of the original leases (para [92] above), and in the new clause 15(d) inserted by the Variation of Lease documents (para [104] above). The expression "consent authority" is not defined in the leases. The words "consent" and "authority" are both ordinary English words (though each with multiple meanings). However, the composite expression "consent authority" is not a matter of ordinary English. It does not appear in the Macquarie Dictionary (though "local authority" and "statutory authority" appear there). It does not appear in the Oxford English Dictionary. It is, however, an expression that has a specific technical legal meaning, applicable in the precise field of discourse with which clause 15(d) deals. The matters to which I have referred at para [175] above provide some reason for the reasonable reader taking its meaning to be that technical meaning. 197 The implication one would ordinarily draw from the expression "In its capacity as consent authority" in clause 15(d) is that should the lessor, in some capacity other than as consent authority, approve the erection of a general advertising structure within its local government area, then clause 15(d) would not be triggered. That appears to leave open the possibility that such approval might be given other than "in its capacity as consent authority". In other words, the mere fact that the Council approves the erection of a general advertising structure is not enough to show that the clause is triggered. 198 If one tries to make sense of the expression "in its capacity as a consent authority", treating it as a clumsy piece of ordinary English, it appears to have something to do with the Council exercising an official power to grant a consent. The type of consent that is relevant to section 138(1) of the Roads Act can only be described as being granted under an official power to grant consent in a stretched and artificial version of that expression. Section 138(1) does not take the form of conferring on the Council any statutory power to grant consent to the erection of a structure in a public road. Rather, it is a prohibition, directed to people generally, of erecting a structure in a public road in circumstances where the Council has not given its consent. Section 138 is a provision that creates a criminal offence. The power that the Council has to grant consent to the erection of a structure in a public road arises as a legal incident of the Council owning the road, not because it has a statutory power to grant a consent. While sections 1391-141 refer to a "consent under this Division", that means nothing more than a consent of the type that is referred to in the Division. 199 Some internal textual matters in the leases support the view that a "consent authority" means a consent authority within the meaning of the EPA Act. Clause 7 of the leases as originally entered (para [89] above), and as replaced by the Deeds of Variation (para [103] above) each incorporated the provisions of the development building approval into the conditions of the leases. The original Development Consent (para [106] above) modified development consent (para [107] above) each use the expression "consent authority" in a sense meaning consent authority within the meaning of the EPA Act. 200 In my view the consent of the Council to the advertising shelters was not given "in its capacity as consent authority" and thus clause 15(d) was not triggered.
On the same question, Handley AJA said: 247 I agree with the Chief Justice, Campbell JA and the trial Judge that the bus shelters were general advertising structures as defined. I also agree with the Chief Justice and Campbell JA that the approvals for their erection and use on public roads were not granted by the Council "in its capacity as consent authority" within the meaning of cl 15(d). 248 The Concord Ordinance did not zone the public roads vested in the Council, and development on such roads was not controlled either by the Ordinance or the Environmental Planning and Assessment Act. The Council is the consent authority as defined in that Act when it has the function of determining applications for development consent under the Act. The Council had no such function in relation to its public roads. 249 The controls on development on public roads vested in the Council were those imposed by the Roads Act 1993. I agree with the Chief Justice and Campbell JA that the approvals for the erection of these bus shelters were granted by the Council under s 139 of the Roads Act in its capacity as a road authority as defined in that Act.
The orders made to give effect to the CA Judgment are set out in paragraphs [52] and [53] below.
The CA Judgment was delivered on 1 April 2010. It was not the end of the matter.
On 25 May 2010 Phoenix, now represented by Mr Agresta without legal assistance, filed a motion to set aside the orders of the Court of Appeal of 1 April 2010 under UCPR Part 36, r 15(1), the same provision upon which Ms Randall now relies. That motion was dismissed by Young JA (Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council; unreported; Young JA; 12 July 2010). Significantly for these proceedings, his Honour's reasons for dismissing Phoenix's application for review demonstrate that Mr Agresta relied on an identical, or at least very similar, proposition to that which he has advanced in the present hearing (that the Council misled the Court by suggesting that, contrary to the fact, it was not acting as a consent authority for the purposes of clause 15(d) of the Leases when it approved the bus shelters) (emphasis added): The points that were made by Mr Agresta who appeared as a director of the appellant show that he is challenging matters that go to the very heart of the determination of the Court on 1 April and not mere matters of clerical errors or the like. Accordingly, the prime thrust is under rule 15 and it is alleged that the judgment was obtained by fraud because the Council, who is the respondent, misled the Court by the way in which its case was conducted so that a statutory corporation with a regulatory function with the duty to carry out those functions, put to the Court that in giving its consent, it did not give its consent as such regulatory authority. Now, it seems to me that sort of allegation does not come within rule 15. The focus of the fraud or irregularity which will allow a judgment to be set aside is usually that it is shown by evidence that there has been actual perjury by a witness. A mere allegation of perjury is not even sufficient and the way in which a case has been conducted or submissions have been put by the advocates to the Court are also not within that category. When Mr Agresta announced that he was not applying under rule 16 but rules 15 and 17, I asked for particulars of the fraud. As I can see it no other particulars had been given before then and I have endeavoured to set out what his reply was. That does not appear to me to be a matter of fraud or illegality within rule 15 and is not within rule 17. If there was any complaint it was within rule 16, which is not part of the motion. Accordingly in my view the motion cannot succeed and should be dismissed with costs.
Phoenix, through Mr Agresta, sought a review of Young JA's decision (see paragraph [28] below).
On 3 August 2010 the Court of Appeal resolved by reference to further written submissions the question of the amount of the judgment to which the Council was entitled against Phoenix: Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council (No 2) [2010] NSWCA 183. The relevant order made on that occasion is set out in paragraph [53] below.
On 16 August 2010 the Court of Appeal, on that occasion constituted by Beazley and Macfarlan JJA and Handley AJA, heard Phoenix's application for review of Young AJA's decision (see paragraph [25] above). Mr Agresta appeared for Phoenix on that occasion. The Court of Appeal dismissed the application for a review (Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 205). Handley AJA delivered the leading judgment, with which the other judges agreed. It is necessary to set out his Honour's reasoning on that occasion in full, because it demonstrates a matter relevant to the present application, being that by that stage Mr Agresta understood that if Phoenix was to demonstrate that the Council had approved the bus shelters as a "consent authority" for the purposes of clause 15(d) of the Leases, it would have to demonstrate that the bus shelters had been approved by the Council as the consent authority under the EPAA: 9 It is not necessary to finally determine that question because the underlying point that Mr Agresta, appearing on behalf of Phoenix Commercial Enterprises Pty Limited, seeks to agitate, is not soundly based in law. 10 The Local Government Act 1993 s 68 and the Table attached to that section defined the activities which required the approval of a council under that Act. Part E of the Table related to public roads vested in a council and item 2 covered, among other matters, the erection of "an advertising structure over a public road". Public roads within the area of the City of Canada Bay were not zoned under its Local Environmental Plan and development on its public roads was not regulated under the Environmental Planning and Assessment Act. 11 Following the Environmental Planning and Assessment Amendment Act 1997 which amended s 68 of the Local Government Act and the attached Table, the Governor made the Environment Planning and Assessment (Savings and Transitional) Regulation 1998 (the 1998 Regulation). Clause 29 (1) of that Regulation provided that it applied to development consisting of "a prescribed activity proposed to be carried out within the area of a council". 12 Prescribed activity was defined in cl 3 as including an activity specified in the Table to s 68 of the unamended Local Government Act 1993 "(b) in item 2 (but only in relation to the erection of an advertising structure over a public road)...". The unamended Local Government Act 1993 was defined as the Local Government Act 1993 as in force immediately before 1 July 1998, the day proclaimed for the commencement of the Environmental Planning and Assessment Amendment Act1997. 13 When the Council gave its consent for the erection of advertising structures on bus shelters within its area the 1998 Regulation was in force. 14 The Council was the consent authority under the Environmental Planning and Assessment Act for the purposes of granting consent to the erection of "an advertising structure over a public road" as provided in the unamended Local Government Act 1993. 15 The question which underlies this application is whether the advertising structures erected on bus shelters illustrated by photographs exhibited to Mr Agresta's affidavit of 16 August 2010 are "over a public road". 16 Section 138 of the Roads Act 1993 provides that a person may not erect a structure or carry out a work "in, on or over a public road" otherwise than with the consent of the appropriate roads authority. The same collocation of words "in, on or over a public road" is found in s 139(2) and ss 142(1) and (2) of the Local Government Act. In that context an advertising structure "over" a public road is one which extends across a road from one side to the other. An advertising structure that is in or on a public road but does not extend from one side of the road to the other is not such a structure "over" a public road. 17 The bus shelters and the advertising structures on them are not advertising structures "over" a public road within the meaning of the 1998 Regulation and the Local Government Act s 138, and the consent given by the Council for their erection was granted under that Act, and not the Environmental Planning and Assessment Act.

[5]

The course of these proceedings

These proceedings were originally commenced by statement of claim filed on 7 January 2013. That document named Ms Randall as first plaintiff and Mr Agresta as second plaintiff. When the hearing commenced before me Mr Agresta informed me that he was bankrupt. Evidence was tendered that his trustee in bankruptcy did not wish to pursue any claim he might have against the Council. Accordingly, the claim which he purported to bring as second plaintiff was dismissed with the question of costs reserved. The case proceeded with Ms Randall as the sole plaintiff represented, with leave, by Mr Agresta.
The proceedings at the hearing before me were formally constituted by an amended statement of claim filed on 11 September 2013 (the "ASC"). The ASC was responded to by an amended defence filed on 24 April 2014.
In addition to those two documents, the parties joined issue by reference to two additional documents. Pursuant to orders of the Court made on 28 October 2013, Ms Randall provided a document entitled "More And Better Particulars to paragraph [2(B)] to [2(H)] to the Amended Statement of Claim" (the "Particulars"). In response to various interlocutory matters pressed by Ms Randall the Council ultimately provided a document entitled "Statement of Admissions" (the "Admissions") dated 31 March 2014. The Admissions were verified by an affidavit from the Council's solicitor. In addition, Mr Newton made the following admission on behalf of the Council: For the period of the meetings of Council between 4 February 2003 and 1 July 2003, Phoenix Commercial Enterprises Pty Limited is not referred to anywhere in the minutes of meetings of Council for that period.
On the first day of the hearing before me (5 May 2014) Mr Agresta sought leave to amend the ASC. That application was refused: Carlene Randall v City of Canada Bay Council [2014] NSWSC 427.
After two days of hearing provision was made for the filing of written final submissions. These prompted Ms Randall to seek to reopen her case and file further evidence.
On the third day of the hearing (18 July 2014) Ms Randall appeared represented by a solicitor who sought to have the proceeding adjourned. The history of the proceedings to that date and the reasons for refusing that application (including Mr Agresta's extraordinary and peremptory termination of the solicitor's retainer during the course of the hearing on that day) are set out in Carlene Randall v City of Canada Bay Council (No 2) [2014] NSWSC 964. The hearing continued on that day and orders were made for further written submissions. Although not a matter on which the Court is now able to act because Mr Agresta again resumed the carriage of the proceedings, I should note that the solicitor who appeared for Ms Randall on that day did concede that Ms Randall did not have standing to bring these proceedings.
The final oral argument took place on 28 November 2014.
On 10 December 2014 Mr Agresta sought to reopen Ms Randall's case to make further written submissions. This was allowed, but led to further submissions in response from the defendants dated 30 January 2015 and additional submissions in reply from Mr Agresta dated 6 March 2015.
Some six months later, while these reasons were being prepared, Mr Agresta again applied for leave to reopen Ms Randall's case to provide further submissions. That application was refused: Carlene Randall v City of Canada Bay Council (No 3) [2015] NSWSC 1397.

[6]

Considering Mr Agresta's submissions on behalf of Ms Randall

The several sets of submissions in chief and in reply provided by Mr Agresta over the course of these proceedings total more than 160 closely typed pages. In drawing this to attention, no criticism is intended of Mr Agresta. He is not a legal practitioner and he has obviously done the best he can, based on his own research without legal assistance, to put everything he considers should be put in favour of Ms Randall's position. Having said that, however, I must also observe that many of the things which Mr Agresta has included in his submissions are irrelevant to the legal arguments which he wishes to raise.
It would obscure the Court's reasoning, and make this judgment much longer than it already has to be, if I sought to deal with every point raised by Mr Agresta in his written and oral submissions. I have read those written submissions and reviewed the transcript of oral argument several times. In these reasons I will endeavour to encapsulate what seem to me to be the key legal arguments which Mr Agresta has raised.
Again with no disrespect, the submissions repeat the same basic points in slightly different ways. To the extent that reference is not made in these reasons to each iteration of any particular argument raised by Mr Agresta, it is not to be assumed that any such variation has been overlooked. Rather, it is because these reasons are confined to recording and resolving those arguments put by Mr Agresta in what I understand to be their essential form and which I consider are arguably relevant to the disposition of these proceedings according to law.
It is also necessary to make two specific observations about Ms Randall's submissions that are described as being in reply.
First, many of those submissions did no more than restate her submissions in chief. No criticism is intended of Ms Randall or Mr Agresta in making that observation. Experienced counsel can sometimes have difficulty with the discipline of being confined to what is properly in reply. However, in what follows I will record as such and deal with those submissions which, in my view, properly fall within the description of being in reply. I will not repeat those which have been recorded as submissions in chief.
Second, sections 11 and 12 of Ms Randall's written submissions in reply dated 23 November 2014 (in the interests of brevity I will not seek to summarise their intricacies) fall into a separate class because while in a general sense they may be characterised as being in reply, they do not depend upon the alleged fraud that otherwise lies at the heart of Ms Randall's case or the discovery of new, previously unavailable evidence. Instead, to the extent they do not repeat arguments raised elsewhere in these proceedings, they raise factual and legal arguments that do no more than take issue with the conclusions of the CA Judgment. They are of the same kind as Young JA identified as "challenging matters that go to the very heart of the determination of the Court [of Appeal]" (see paragraph [25] above). There is no suggestion that they raise anything that could not have been raised in that Court, before whom Phoenix was represented by undoubtedly competent counsel. It follows that those matters are insufficient to warrant the exercise of the extraordinary jurisdiction invoked by Ms Randall.

[7]

The issues in these proceedings

Ms Randall claims this relief in the ASC: 1. Set aside the judgments and orders in favour of the Defendant against Phoenix Commercial Enterprises Pty Limited ("Phoenix"). 2. An order that a new trial be held. 3. Grant leave to the Plaintiffs and Phoenix to file and serve a further amended statement of claim. 4. Damages to be separately assessed. 5. An order that the Defendant pay, within one (1) month of this order, to the Plaintiffs all costs to the proceedings incurred by Phoenix and the Plaintiffs referred to in the affidavit of Ferdinando Agresta affirmed 20 December 2012 and Carlene Randall affirmed 20 December 2012. 6. Interest from the date the costs and damages occurred. 7. Indemnity costs. 8. Set aside the judgment/orders dated 15 November 2011 to case number 2011/00328168. 9. An order that ASIC relist Phoenix Commercial Enterprises Pty Ltd.
The last two prayers for relief deal with the winding up of Phoenix, with the case number there referred to being the proceedings in which Phoenix was wound up. This aspect of Ms Randall's claim is dealt with in paragraphs [181] to [200] below.
The main burden of these proceedings relates to the judgments and orders of White J and the Court of Appeal. While this was not always stated by Mr Agresta with specificity, his various submissions on behalf of Ms Randall referred to misrepresentations made to both White J and the Court of Appeal. It was clear that both decisions were under attack.
Ms Randall relied on UCPR Part 36, r 36.15(1) and the Court's inherent jurisdiction. The rule is: 36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. …
The orders of White J and the Court of Appeal were final orders that had been duly entered. There is no inherent power in the Court to set such orders aside if they were regularly made and entered: see Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530. Proof of fraud can establish the necessary irregularity. Neither party submitted that in these proceedings anything turned on the source of the Court's jurisdiction. In these reasons references to r 36.15 are to be understood as including the inherent jurisdiction (other than in paragraphs [60] to [64] and [74] to [87] below).
In Perpetual Trustees Australia Ltd v Heperu Pty Ltd & Ors (No 2) [2009] NSWCA 387; (2009) 78 NSWLR 190 the Court of Appeal said: 15 The irregularities relied on included the failure of the appellant to take or disclose the wrong party point in its verified defence, its express or implied assertions that it was the correct defendant, and its failure to discover documents relevant to the role of PIML in the transactions. 16 The focus of Pt 36.15(1) is on the judgment or order that is attacked, and question is whether it was "given, ... entered or ... made" irregularly etc. The focus is on irregularity in those steps, not on the merits of any decision, or the irregularity of other steps in the proceedings, or in the proceedings below. 17 The rule applies with particular force to default or consent judgments and orders, and those given or made ex parte. It can only have limited application to judgments and orders made or entered after a hearing on the merits at which all parties were represented and fully heard.
Bearing that observation in mind, it is necessary to identify the judgments and orders which appear to be the subject of these proceedings. In one of her written submissions Ms Randall identifies eight first instance and appellate judgments. However, it is clear that the operative orders which Ms Randall challenges are a subset of those eight and are set out in the following paragraphs.
The orders made to give effect to White J's Judgment were: 1. I give judgment for the first defendant against the plaintiff in the sum of $948,671.55. 2. I order the plaintiff's claims for relief against the first defendant in the statement of claim be dismissed. 3. I declare that the lease between the plaintiff and the first defendant registered 3842836T as varied by lease 3842837R was validly terminated by the first defendant. 4. Declare that the lease between the plaintiff and the first defendant registered 3842834X as varied by lease 3842835V was validly terminated by the first defendant. 5. I declare that the advertising structures on the land, the subject of the leases referred to in declarations 3 and 4, become the property of the first defendant on termination of the leases. 6. I order that the first defendant's claims for relief in the cross-claim be otherwise dismissed. 7. I order that the plaintiff's notice of motion dated 4 February 2009 be dismissed. 8. I order that the plaintiff pay the first defendant's costs of the said notice of motion. 9. Except as otherwise provided by the preceding or earlier orders, I order that the plaintiff pay three quarters of the first defendant's costs of the proceedings. 10. The exhibits may be returned after 28 days.
The orders initially made by the Court of Appeal on 1 April 2010 were: (1) Cross-appeal allowed. (2) Set aside orders 1 and 9 in the court below. (3) Appeal dismissed. (4) Replace order 9 in the court below with an order: Except as otherwise provided by the preceding or earlier orders, I order the plaintiff pay the first defendant's costs of the proceedings. (5) Direct the parties, within 14 days of the date of delivery of these reasons for judgment (a) to provide to each judge hearing this appeal, agreed Short Minutes of the Order appropriate to be made in lieu of order 1 in the court below. (b) in the event that agreement is not possible, to provide to each judge hearing this appeal their respective written submissions about the order that should be made in lieu of order 1 in the court below. (6) Order the Appellant to pay costs of the Respondent of the appeal and of the cross-appeal. (7) Reserve further consideration of the orders appropriate to give effect to these reasons for judgment. (8) Dismiss with costs the Appellant's Notice of Motion to receive further evidence. (9) Dismiss with costs the Appellant's application for leave to appeal from the trial judge's order refusing leave to amend the Statement of Claim. (10) Respondent to pay costs of the Appellant of the Notice of Motion seeking to strike out the Cross-Appeal.
These were supplemented on 3 August 2010 (see paragraph [27] above) by this order: 1. Pursuant to leave reserved on 1 April 2010 substitute for the judgment in para 1 of the Orders of the Equity Division of 25 March 2009, judgment for the First Defendant against the Plaintiff for $1,626,612.01 with effect from 25 March 2009.
It will be apparent from the preceding paragraphs that Ms Randall's challenge is to orders made both at first instance and by the Court of Appeal. Insofar as the latter are concerned, it may seem counterintuitive for a judge at first instance to exercise a jurisdiction which may result in the setting aside of orders made by the Court of Appeal. This is particularly the case when it is recalled that the orthodox position must be that, even though only some aspects of White J's orders were varied by the Court of Appeal, the operative decision is now that of the Court of Appeal which has replaced White J's decision for all purposes: Forge v Australian Securities and Investments Commission (No 2) [2007] NSWCA 42 at [3]; (2007) 69 NSWLR 575. While that is the strictly correct position, the parties referred to "judgments and orders" and this judgment will also use that description.
The Council did not suggest that Mr Agresta should have brought these proceedings in the Court of Appeal. It was correct not to do so. In Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227, Dr Fleet had filed a summons in the Court of Appeal (as it were by way of originating process) seeking relief concerning numerous decisions of judicial officers at first instance. In considering the various heads of power which might have supported Dr Fleet's summons, Campbell JA, in delivering the judgment of the Court, eliminated UCPR Part 36, r 36.15(1) on the basis that it was reserved either to a first instance judge exercising original jurisdiction or to the Court of Appeal incidentally in the course of disposing of a properly instituted appeal (emphasis added): 59 That leaves only UCPR 36.15(1) as a potential candidate for a head of power under which the proceedings are brought. But it is not available in the present case. For a judgment to be set aside under UCPR 36.15(1) is an exercise of original jurisdiction. The procedural mode by which UCPR 36.15(1) is invoked as a stand-alone source of power to set aside a judgment or order, is by an application to a first instance judge. The power under UCPR 36.15(1) can be exercised by an appellate court if, in the course of appellate proceedings properly instituted, the court is satisfied that a judgment was given or entered, or an order was made irregularly, illegally or against good faith. However, for the Court of Appeal to exercise that power incidentally, in the course of disposing of a properly instituted appeal, is quite a different thing to the Court of Appeal hearing proceedings begun for the purpose of invoking UCPR 36.15(1).
In the circumstances of this case Ms Randall challenges both orders made by White J in their original form and as varied by the Court of Appeal. I am satisfied that, as a single judge exercising original jurisdiction, UCPR Part 36, r 36.15(1) provides the power for a judge at first instance, in appropriate circumstances, to set aside orders made by the Court of Appeal. This is because the expression "a judgment or order of the court in any proceedings" in the rule extends, as a matter of construction, to orders made in proceedings in the Court of Appeal.
Ms Randall's fundamental complaint is set out in paragraph 1 of the ASC: By reason of the facts set out below, there was a miscarriage of justice in Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council (the judicial proceedings) whereby the City of Canada Bay Council ("Council") procured the judgment/orders by its conduct by illegality or irregularity or against good faith undermining the judgments/orders warranting the exceptional course for which subrule 36.15(1) to the Uniform Civil Procedure Rules 2005 or the inherent power of the Court provides.
Quite apart from disputing the merits of Ms Randall's claims, the Council submits that she does not have standing to seek the relief sought in the ASC, especially in relation to White J's Judgment and the CA Judgment. It is logical for that submission to be considered first. The Court will then consider Ms Randall's claim to have the judgments and orders set aside. Because the outcome of that issue will largely determine the utility of reinstating Phoenix, the Court will consider reinstatement and Ms Randall's standing to seek that order at the end of these reasons.
The Court notes that in paragraph 8.2(3) of Mr Agresta's submissions dated 30 August 2014, the claims in relation to a further misrepresentation (paragraph 56 of the ASC) and damages (paragraphs 57 to 64 of the ASC) have been withdrawn.

[8]

UCPR Part 36 r 36.15(1)

I will set the relevant rule out again for convenience: 36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
Mr Agresta's submissions did not always distinguish between "irregularly, illegally or against good faith", although a fair reading of those submissions suggests that the main emphasis was on "against good faith". The Court will approach the argument on the basis that Ms Randall's case was that any one or more of the three was made out. However, that approach must be understood against what is recorded in the next paragraph.
Mr Agresta also said on several occasions that Ms Randall was not putting the matter as high as "fraud" and the ASC in several places had deleted the word "fraudulent" or "fraudulently". However, the Court has no doubt (and Mr Agresta ultimately accepted) that, putting semantic sensitivity to one side, Ms Randall's case invited the Court to find fraudulent conduct or conduct tantamount to fraud. So much is apparent from headings in the ASC such as "False representation made knowingly" or allegations that Council officers shut their eyes to material facts or were reckless in making representations and thereby knowingly alleged what was false. The ASC also pleads that Council made representations that were untrue and known to the Council to be untrue.
In paragraph 4.3 of his written submissions of 30 August 2014 Mr Agresta submitted, "in effect, the Plaintiff has to establish a form of deceit by Council to the Court - the essence of which is dishonesty. The relevant intention is that the false statement shall be acted upon by the person to whom it is addressed". Paragraph 12.2 of his submissions in reply of 23 November 2014 acknowledged "the parties have conducted the proceedings based on a claim of fraud". Finally, paragraph 2.1(2) of Ms Randall's submissions in reply dated 6 March 2015 confirmed that she sought a finding from the Court that the "Council fraudulently procured the judgment and orders to the proceedings between Phoenix and Council".
Before turning to the leading authority, some observations about r 36.15 can be made by reference to its text: 1. It is discretionary ("may"). 2. The power in r 36.15 must be construed and exercised so as to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings and as best to ensure the attainment of the objects set out in s 57(1) of the Civil Procedure Act 2005 (NSW) (the "CPA") (ss 56(2) and 57(2) of the CPA). 3. Rule 36.15 invites the Court to answer three questions: 1. Was the judgment or order given, entered or made irregularly, illegally or against good faith? 2. If yes to the previous question, has "sufficient cause" been shown to set aside the judgment or order? 3. If "yes" to the preceding question, should the Court exercise its discretion to set aside the judgment or order?
The leading summary of the principles relating to setting aside a judgment for fraud remains, in my respectful view, the judgment of Kirby P (as his Honour then was) and with whom Hope and Samuels JJA agreed in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538-539: It is useful to state a number of principles which are established by law and which govern proceedings of the kind which the appellant wishes to bring. First, the essence of the action is fraud. As in all actions based on fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires: Jonesco v Beard [1930] AC 298 at 301; McHarg v Woods Radio Pty Ltd (at 497). Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment: see Lord Selborne LC in Boswell v Coaks (No 2) (1894) 6 R 167 at 170, 174; 86 LT 365 at 366, 368; Cabassi v Vila (1940) 64 CLR 130 at 147; McDonald v McDonald (1965) 113 CLR 529 at 533; Everett v Ribbands (1946) 175 LT 143 at 145, 146; Birch v Birch [1902] P 130 at 136, 137-138; Ronald v Harper [1913] VLR 311 at 318. This rule has an ancient lineage: see, eg, Shedden v Patrick (1854) 1 Macq 535 at 615, 622; Halsbury's Laws of England, 4th ed, vol 26, par 560 at 285. It is based upon a number of grounds. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed. If they have evidence of fraud which may taint a judgment of the courts, they should not collude in such a consequence by refraining from raising their objection at the trial, thereby keeping the complaint in reserve. It is their responsibility to ensure that the taint of fraud is avoided and the integrity of the court's process preserved. Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief: Birch v Birch (at 136, 139); McHarg v Woods Radio Pty Ltd (at 498); Ronald v Harper (at 318). The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. This rule is founded squarely in the public interest in finality of public litigation and in upholding judgments duly entered at the termination of proceedings in the courts. Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof, of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment: Cabassi v Vila (at 147, 148); Baker v Wadsworth (1898) 67 LJQB 301; Everett v Ribbands (at 145, 146). The other requirements must be fulfilled. In hard fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases of contradictory evidence, one party must be mistaken. He or she may even be deceiving the court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the courts would be even more burdened with the review of first instance decisions than they are. For this reason, and in defence of finality of judgments, a more stringent requirement than alleged perjury alone is required. Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic: cf Perry v Meddowcroft (1846) 10 Beav 122 at 136-139; 50 ER 529 at 534, 535. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment: Ronald v Harper (at 318); Shedden v Patrick (at 643). Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.
Insofar as Ms Randall relied upon the judgments and orders having been made or entered against good faith, I respectfully adopt what was said by Kirby P (as his Honour then was) about the equivalent District Court rule in Coles v Burke (1987) 10 NSWLR 429 at 437 (Samuels and McHugh JJA agreeing): The genus which is involved in the phrase 'irregularly, illegally or against good faith' appears to me to be misconduct or dishonourable conduct of the person who procured the judgment which it is suggested undermines the authority of that judgment warranting the exceptional course for which r 12A provides.
Finally in this summary of the applicable principles, the Court notes that Ms Randall's submissions in reply of 23 November 2014 say that "notwithstanding that the matter to be proved involves fraud, the standard of proof required of the plaintiff is proof on the balance of probabilities". The point which those submissions do not address is what Kirby P referred to above (see paragraph [65] above) as "the strict proof which such a charge [of fraud] requires". In other words, while it is true to say fraud must be established on the balance of probabilities, the seriousness of an allegation of fraud means that the statutory manifestation of the Briginshaw standard (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) in s 140(2) of the Evidence Act 1995 (NSW) must be applied: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
Bearing the principles in mind as set out in paragraphs [60] to [67] the Court now turns to consider Ms Randall's case to set aside the judgments and orders against Phoenix. Mr Agresta put that case by reference to two basic complaints, which may be conveniently referred to as the "consent authority" point and the "no valid termination" point. The Court will consider each of these in turn after dealing with the question of Ms Randall's standing and making a general observation about the utility of the relief sought in these proceedings. The Particulars also referred to a third complaint based on White J's and the Court of Appeal's conclusion as to the proper construction of clause 15(d) of the Leases. This complaint was not developed in argument. Had it been, it would have been rejected for essentially the same reasons for which the Court has rejected the other two complaints.

[11]

Standing - Resolution

The question of who has standing to invoke r 36.15(1) must be resolved by determining the proper construction of the rule. The submissions of both parties bypassed the issue of construction and went straight to the question of what interest (if any) Ms Randall had that would give her standing. I have already set out the terms of r 36.15(1) in paragraphs [47] and [60] above. The point for present purposes is that the rule is silent on the question of who may invoke it.
A similar problem confronted Jenkyn J in Nicholson v Nicholson (1974) 2 NSWLR 59 at 64-65 sitting in what was then the Family Law Division of this Court (emphases added; citations omitted): Rule 9 (3) seems to be the only rule which could possibly have relevance to the present situation. That rule provides: (3) A Court may, on terms, set aside or vary an order - (a) where an order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of motion for the order; or (b) where notice of motion for the setting aside or variation is filed before entry of the order. … Is this then a case that falls within Pt. 40, r. 9 (3)? The order was certainly made in the absence of the respondent, although he had notice of the service of summons for the order. If the respondent were the party seeking to set aside the order, the Court would seem to have jurisdiction to set it aside, provided good cause for so doing was made out. Rule 9 (3) is not limited to interlocutory orders but, in my view, applies also to final orders. Is, however, a party who has sought and obtained such an order in the absence of the other party, entitled to have the court exercise the jurisdiction conferred by Pt. 40, r. 9 (3)? If so, should the Court, on the facts of the present case, exercise its discretion in favour of the petitioner against the opposition of the other party to the proceedings, namely the respondent? The language of r. 9 (3) (a) is wide enough to allow of applications by persons other than the party in default. It does not expressly limit the court's power to cases where the applicant is the absent party. It is true that r. 9 (3) gives a fairly comprehensive definition of the kind of absence which will justify resort to the Court to exercise its jurisdiction, but that definition does not limit or, in my view, intend to limit or qualify the operative words of the sub-rule, namely: "The Court may on terms set aside or vary an order where the order has been made in the absence of a party." Any limitation of r. 9 (3) (a) to applications by the absent party, if it is to be introduced into the sub-rule, must therefore be by implication or interpretation and not by express provision. The other part of the sub-rule, namely 9 (3) (b), which provides an alternative ground for setting aside or varying an order before entry of the order, contains no limitation which would deny to any interested party, whether a party to the proceedings or not, the right to have the order set aside or varied. Nor do I think that, in the absence of some direct authority, the Court should too readily imply any such limitation. It would seem, therefore, that upon the literal words of both r. 9 (3) (a) and r. 9 (3) (b) should be construed so as to extend the court's power to cover applications by all interested persons, and should not be limited so as to apply only to the one against whom the order in substance operates. Support for this view is to be found in the case of Jacques v. Harrison. In that case it was held that a judgment by default in an action against a lessee for recovery of land on forfeiture may be set aside under O. XXVII, r. 15 of the English Supreme Court Rules on the application of an equitable mortgagee, although not a party to the action. That rule states: "Any judgment by default, whether under this order or under any other of these rules, may be set aside by a Court or a judge on such terms as to costs or otherwise as such Court or judge may think fit." In that case Grove J. said : "I think that Order XXVII, r. 15, which does not say on whose application, but that any judgment by default … may be set aside, gives us that power, and that it is a very useful authority to give to the Court this case alone is sufficient to shew." In the same case Hawkins J. said: "I am also of opinion that the language of Order XXVII, r. 15, gives us power to set the judgment aside. There is in that rule no limitation as to the persons who may apply to set it aside. Each case presents its own particular circumstances. But there is jurisdiction to set aside 'any judgment by default' on such terms as the Court may think fit under that Order.
The precise issue before Jenkyn J was whether the rule could be relied upon by someone other than the party in default. His Honour held it could be because the rule contained no express limitation and, for the reasons set out in the preceding paragraph, he did not think that such a limitation could be implied. Applying the same approach to r 36.15(1) means that, in the absence of an express limitation, any person can apply under the rule. However, as I shall develop in the next paragraphs, the nature of the applicant's interest and the extent to which it has been affected by the judgment which is sought to be set aside remains highly relevant as one of the matters which the Court must consider in determining whether "sufficient cause" has been shown for the purposes of the rule.
In JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Ltd v Fletcher [2014] NSWCA 31; (2014) 85 NSWLR 644 ("JPMorgan") the Court of Appeal considered the meaning of "party" in r 36.16(2)(b). The issue was whether it was confined to a party joined to the proceedings or whether it could extend to a person not being a party formally joined to the proceedings. In adopting the latter construction, Beazley P (with whom Macfarlan and Gleeson JJA relevantly agreed) said (at 671) "The meaning of a word in a legislative provision depends upon its text, context and purpose". Applying that approach to the present case yields the following reasoning.
The text of r 36.15(1) does not specify who may apply. If there is to be a limitation, it must be implied. This may be contrasted, for example, with r 40.9 of the English Civil Procedure Rules which provides that "a person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied". The requirement to be "directly affected" was most recently considered in Abdelmamoud v The Egyptian Association in Great Britain Ltd [2015] EWHC 1013 (Ch); [2015] Bus LR 928. However, it is of no assistance in this case because to speak of being directly affected as the relevant criterion for standing is to assume the answer to the question being asked.
Two aspects of the context of the rule are relevant.
First, it appears among other provisions relating to varying or setting aside judgments or orders, some of which specify by whom such an application can be made, for example r 36.17 which refers to "the application of any party or of [the Court's] own motion". However, as the parties in JPMorgan themselves accepted (at [104]), the meaning of the word "party" varies depending upon the context in which it appears. The specification of who can apply under other rules suggests that if the legislature had intended to specify the class of persons who could invoke r 35.15(1), it could easily have done so.
Second, r 36.15(1) itself contains a precondition or gateway to the exercise of the rule, being "on sufficient cause being shown".
The purpose of the provision is facultative and deals with a matter going to the integrity of the administration of justice itself, namely judgments or orders that may have been entered "irregularly, illegally or against good faith".
The matters set out in paragraphs [78] to [82] point firmly against the implication of any limitation as to who can make an application under the rule. There are four reasons for this conclusion.
First, in contradistinction to other provisions dealing with a similar subject matter, the legislature has made no express limitation when it could have done so. This may, for example, be immediately contrasted with r 36.15(2) where an alternative basis for the setting aside of an order is provided "if the parties to the proceedings consent".
Second, insofar as a gateway directed to the applicant's interest is concerned, the implication is unnecessary. This is because the question of the applicant's interest is a matter which can readily be dealt with as part of the inquiry into whether sufficient cause has been shown. This requirement is in addition to and distinct from the requirement to show that the judgment or order was given or entered irregularly, illegally or against good faith.
Third, the potentially serious subject matter of the rule and its close connection to the propriety of the administration of justice point toward a liberal rather than restrictive interpretation.
Fourth, the impact of s 56 of the Act of the CPA must be taken into account (see paragraph [64] above). In that regard I respectfully adopt and apply what was said by Macfarlan JA in JPMorgan, where in agreeing with Beazley P his Honour said: 163. … However the rule is remedial in that it permits the Court to exercise a discretion to correct a judgment or order that it considers requires correction and the appellants did not identify any good reason why the rule makers would have intended the Court to have only a narrow discretion in this respect. A broad construction, enlarging the Court's discretion to act in cases it considers appropriate, conforms with s 56 of the Civil Procedure Act 2005 which requires the Court, in interpreting any rule of court, to give effect to the overriding purpose of the Act of facilitating the just, quick and cheap resolution of the real issues in the proceedings. Such a construction also conforms with the principle that powers to be exercised judicially should be construed liberally (Mansfield v DPP [2006] HCA 38, 226 CLR 486 at [10], Lee v New South Wales Crime Commission [2013] HCA 39, 87 ALJR 1082 at [56], [141]).
The Court has therefore concluded that Ms Randall has standing to make this application under r 36.15(1). Insofar as the inherent jurisdiction of the Court is concerned, where the application is based on a matter as serious as fraud there is no reason why the inherent jurisdiction would be any more limited on the question of standing than the Court's jurisdiction under the r 36.15(1). The Court therefore records for completeness its conclusion that Ms Randall also has standing under the inherent jurisdiction to make her application insofar as it depends upon making out an allegation of fraud. It is unnecessary to, and the Court does not, express any view about the scope of the inherent jurisdiction to set aside judgments and orders on other bases, bearing in mind the fundamental principle Bailey v Marinoff referred to in paragraph [48] above.

[13]

"Consent authority" - Ms Randall's submissions

Ms Randall's central allegation in relation to the consent authority point is made in paragraph 9 of the ASC: 9. By reason of the facts set out in paragraph [13] to [51] below, on 7 June 1999 and on 22 February 2000 and contra to Council's representations set out in paragraph [13] and [15] below and the judgment set out in paragraph [6] above regarding "its capacity as consent authority" Council was, and knew it was, the consent authority for the purpose of the erection of each general advertising structure the subject of the judicial proceedings.
The ASC goes on to set out, among other things, Council's submissions before White J and the Court of Appeal to the effect that it did not act in its capacity as a consent authority under the heading in the ASC of "false representation made knowingly".
Paragraphs 21 to 27 of the ASC restate the argument that erecting a "general advertising structure" was a "prescribed activity" under the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 (NSW) (the "Regulation"), clause 29(8) of which expressly provided that "the consent authority for the purpose to erect any structure or part of a structure is the Council". (Although drawn to attention by the Council, nothing turns on the incorrect reproduction of the definition of "prescribed activity" in paragraph 21 of the ASC.) This part of the pleading then culminates in this allegation: 27. By reason of the facts set out in paragraph [16] to [26] above, on 7 June 1999 and on 22 February 2000 and contra to Council's representations set out in paragraph [13] and [15] above and the judgment set out in paragraph [6] above regarding "its capacity as consent authority" Council was the consent authority for the purpose of the erection of each general advertising structure the subject of the judicial proceedings.
Paragraphs 28 to 34 of the ASC are devoted to demonstrating that the Council knew or ought to have known that it was the consent authority for the purpose of the erection of the bus shelters. Paragraphs 35 to 50 of the ASC set out a case that the Council's General Manager (Mr Sawyer) and Director of Corporate Services (Mr Cook) knew or ought to have known (and their knowledge was to be imputed to Council) that Council was the consent authority for the purpose of the erection of the bus shelters. The allegations include that neither Mr Sawyer nor Mr Cook had an honest belief in or that they recklessly made the various representations constituted by, among other things, submissions made by the Council to White J and the Court of Appeal. It was submitted for Ms Randall that a Jones v Dunkel inference (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298) should be drawn against the Council for its failure to call Mr Sawyer and Mr Cook.
As part of her case at this point, Ms Randall submitted that there had been non-disclosure to White J of: 1. the Regulations; 2. the Concord Local Environmental Plan No 109; 3. the leasehold mortgagee's tie in deed (the "Tie in Deed"); and 4. the meaning of "lessor" in the Tie in Deed.
The Tie in Deed was an agreement made on 18 February 1998 between the Council, Phoenix and Phoenix's mortgagee. It set out the terms on which the Council consented to Phoenix mortgaging the Leases and what was to occur if Phoenix defaulted under the Leases or its mortgage. Ms Randall argued that the importance of the Tie in Deed was that by not disclosing it, Council was to be understood as suggesting that there were no other agreements between the parties other than the Leases. The Tie in Deed defined "Lease" as comprising the Leases (as varied) and contained an acknowledgement that "the whole of the terms of the agreement between the [Council] and [Phoenix] are set out in the Leases".
Ms Randall alleged that the failure to draw these matters to the Court's attention meant that White J and the Court of Appeal interpreted the capping provision in clause 15(d) in a way that they could not have if they had been made aware of the acknowledgement in the Tie in Deed. It was said that this acknowledgement prevented the implication of any terms into the Leases.

[15]

"Consent authority" - Resolution

Ms Randall's arguments fail for the following six reasons.
First, no misrepresentation was made. Insofar as any representation was made (as to which see the next paragraph) to the effect that in approving the bus shelters it was not acting as the consent authority under the Leases, the result before the Court of Appeal demonstrates that "representation" was correct as a matter of law.
Second, Ms Randall's allegation relies on the Council's submissions to White J and the Court of Appeal that it was not acting as the consent authority under the Leases being treated as "representations", in particular as to the truth of the subject matter of the "representations". That allegation misunderstands the nature of the submission made on the consent authority point. The Council's submissions that it was not acting as consent authority were not representations as to the objective truth of the state of affairs.
Where, as here, a submission concerns a mixed proposition or conclusion of fact or law, it is not a representation as to the objective truth of something. Rather, it is a proposition which a party urges the Court to accept as the correct conclusion as a matter of fact and law. It does not involve a representation by the propounding party or, in particular, its legal advisers that they personally know or believe it to be objectively true. In all the circumstances of litigation, particularly in the context of the ethical and other rules binding counsel, solicitors and parties, the only representation that might be implied in a submission is that the lawyers on behalf of their client and on the basis of their instructions consider that the submission has sufficient basis in fact and law that it can properly be put to the Court. For example, a client can instruct its lawyers to put an argument which the lawyers have advised their client is arguable but likely to fail. Many such arguments have nevertheless succeeded at first instance or appeal.
Even on a pure matter of fact a submission by a lawyer will (unless the lawyer was personally a witness, in which case ethical rules generally prevent the lawyer acting) carry no more than a representation that it represents the lawyer's instructions that something is true. On the other hand, witnesses swear or affirm their evidence is true, but in the course of a trial it can be shown their memory is faulty. It certainly does not always follow that they have deliberately misled the Court. However, it is important to note that even in those cases where it can be shown that a witness has committed perjury (making on oath any false statement knowing the statement to be false or not believing it to be true: s330, Crimes Act 1900 (NSW)), that will generally in and of itself be insufficient to set aside a judgment or order based on such testimony (see paragraph [65] above).
Third, there are two reasons why Ms Randall's argument concerning the Regulations cannot succeed: 1. It was considered and rejected by the Court of Appeal in Phoenix's application for review of Young JA's decision (see paragraph [28] above). Even if this Court would entertain the argument (which it will not - see the next sub-paragraph) it is of no assistance to Ms Randall because it is wrong in law. 2. Like much of Ms Randall's case it is an attempt to reargue a point decided against Phoenix or to make a new argument in favour of Phoenix in circumstances where it cannot be suggested that the factual or legal basis of the new argument was either only recently discovered by Ms Randall or could not have been discovered by Phoenix at the time with reasonable diligence. Phoenix had been legally represented at various times and was represented by competent counsel before both White J and the Court of Appeal (see paragraphs [8] and [20] above). The late briefing of counsel before White J does not detract from the force of the observation that Phoenix had the benefit of legal representation. No fraud or any other impropriety has been established in relation to this argument that would warrant the Court acting, so it would decline to entertain the argument in any event. That conclusion is only fortified by the fact that the argument has been considered and disposed of as wrong by the Court of Appeal.
Fourth, the "non-disclosure" referred to in paragraph [96] above is not of a kind which invites correction by the Court for three reasons: 1. Failure to refer to the Tie in Deed does not in and of itself convey any kind of representation, including one to the effect that there were no other agreements between the parties other than the Leases. 2. For the "non-disclosure" to give rights to Phoenix (or Ms Randall), there must have been some other obligation for the matter to have been disclosed. If the basis for disclosure is said to be the acknowledgement referred to in paragraph [97] above because that would prevent the implication of terms into the Leases, then that basis is wrong in law. An entire agreement clause is not a bar to implying terms or to calling in aid surrounding circumstances in appropriate cases to assist in the process of construction. Nor would those documents have had any effect on how either White J or the Court of Appeal interpreted clause 15(d) of the Leases. None of the foregoing points provides a reason for the Council to have referred to the Tie in Deed. 3. Phoenix must have had knowledge of the Tie in Deed and the terms of the Leases. It was represented by competent counsel both before White J and the Court of Appeal. It could have relied on those documents in the way Ms Randall seeks to do, but apparently did not do so. This is another example of Ms Randall seeking to reargue or present a fresh argument on something which Phoenix either did argue or could have argued.
Fifth, Ms Randall's reasoning in relation to Messrs Sawyer's and Cook's knowledge is contrived and flawed. That reasoning assumes the conclusion (Council was acting as the consent authority), identifies a series of factual and legal matters said to support that conclusion and then invites the Court to infer that Messrs Sawyer and Cook knew those matters. It is then contended that because they knew those matters, they could not have had an honest belief that was contrary to the assumed conclusion. This last conclusion is sought to be fortified by a Jones v Dunkel inference because neither gentleman gave evidence.
This type of argument fails for four reasons: 1. The assumed conclusion has been found to be wrong by the Court of Appeal. This demonstrates that the argument is another way of trying to take issue with the merits of the decision of the Court of Appeal. It does not provide a basis for this Court to interfere with the Court of Appeal's decision. 2. The argument glosses over or avoids what should be the starting point of the inquiry, namely what facts have actually been proven, for example as to the knowledge of relevant individuals and the surrounding circumstances. 3. Even assuming that Messrs Sawyer and Cook knew the matters alleged, that would be insufficient for the Court to draw the serious conclusion of fraud sought by Ms Randall i.e. that Messrs Sawyer and Cook did not have an honest belief insofar as they were responsible for the Council's submission that it was not acting as a consent authority for the purposes of the leases. While that conclusion would be on the balance of probabilities, it would require the Court to be satisfied to the degree which reflects the seriousness of the allegation (see paragraph [67] above). That could not be the case when Council's position was a conclusion of mixed fact and law which represented a plainly arguable position (which it happens was ultimately vindicated). 4. The reliance on Jones v Dunkel is misplaced for two reasons: 1. It would only apply where a party is required to explain or contradict something. For the reasons given in the preceding paragraph, the facts which Ms Randall sought to rely on did not rise high enough to require the Council to explain or contradict anything in relation to its position that it did not act as the consent authority. 2. Ms Randall appeared to be relying on Jones v Dunkel as a means of independently establishing a fact (the lack of honest belief). That is not how the principle operates. It will only be engaged if an inference is open from facts proved by direct evidence and will assist the Court in drawing the inference (see Jones v Dunkel at 312 per Menzies J). It is not a method for finding facts not otherwise proved by the evidence. Such facts as Ms Randall called in aid against Messrs Sawyer and Cook were insufficient to make the inference of lack of honest belief open in the first place.
Sixth, quite apart from the fact that Ms Randall's legal arguments were fully considered by either or both of White J and in the Court of Appeal, the way Ms Randall's case has been put seems, with respect, to have ignored the fact that the words "consent authority" do not appear in isolation in clause 15(d) of the Leases. The relevant language is "should the Lessor in its capacity as consent authority approve" (emphasis added). Ms Randall's submissions ignore the words "in its capacity".
There can be no doubt (and it is clear that both White J and the Court of Appeal understood this) that the Council was a consent authority under the EPAA in respect of decisions made under that legislation. The difficulty for Ms Randall is that, as both White J's Judgment and the CA Judgment recognise, the approval of the bus shelters was not under the EPAA but under the RA. The effect of Ms Randall's argument is that, because Council was a consent authority under the EPAA, whatever decisions Council made were made in that capacity. With respect, that cannot be correct. To give a different example, a person may be a licensed electrician. However, when that person comes home after a day at work and turns on their light switch, they are not doing so in their capacity as a licensed electrician.
The arguments relied upon by Ms Randall were fully considered by White J and the Court of Appeal. Phoenix did not seek special leave to appeal to the High Court. Ms Randall's disagreement with the Court of Appeal's conclusion is not a basis for that Court's orders to be set aside.

[16]

"No valid termination" - Ms Randall's submissions

The "no valid termination" point was introduced into the proceedings by paragraphs 2A - 2L of the ASC. The key allegations are: 2A The Plaintiffs have discovered since the judgment/orders to Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council fresh material facts which alone, or in combination with previously known facts, raise a serious question to be tried. 2B The Notice of Breach of Covenant dated 13 May 2003 was false and known to be false by Council and its solicitor. 2C The Notice of Termination dated 16 June 2003 was false and known to be false by Council and its solicitor.
However, the pleading in the ASC did not set out the facts, matters and circumstances relied upon for the conclusion that the Breach Notice and the Termination Notice were false and known to be false by the Council and its solicitor. For this one has to turn to the Particulars.
The basis of this part of Ms Randall's claim is the Council's cross-claim before White J for unpaid rent. Phoenix's defence to cross-claim put the validity of the Breach Notice and the Termination Notice in issue. Paragraph 7 of the Particulars drew attention to that cross-claim (emphases in original): 7. Council: (1) expressly claimed by paragraph [14] to the Cross-Claim: On about 25 June 2003 the Council terminated the Young Street Lease and the Victoria Avenue Lease. Particulars Letter from Abbott Tout to Phoenix dated 25 June 2003 enclosing a Notice of Termination. (2) expressly represented to the primary judge by: (i) paragraph [2.12] to Council's written submission of 7 April 2008: … on 25 June 2003 Council terminated the leases and re-entered possession. (ii) paragraph [3.1(d)] to Council's written submission of 28 April 2008: Council did terminate the Leases by written notice dated 25 June 2003. (3) expressly claimed to the primary judge by paragraph [ii] to the Cross-Claim: A declaration that the termination by the Council of the Young Street Lease and the Victoria Avenue Lease in June 2003 was valid. thereby: (4) intended to be understood that: (i) Council had made a "decision" to terminate the leases and re-enter; and (ii) the Notice of Termination was effective; and (iii) Council did "validly" terminate the leases by written notice and re-entered possession.
After referring to the outcome before White J, the Particulars also refer to a representation to the Court of Appeal (emphases in original): 10. Council expressly represented to the Court of Appeal by paragraph [1.4] to Council's written Outline of Submissions filed on 27 August 2009 on behalf of the Respondent and Cross Appellant: On or about 25 June 2003 Canada Bay accordingly terminated the Leases by way of notice and re-entry (Blue 144).
Ms Randall's argument as set out in the Particulars as to "the falsity to Council's representations" may then be summarised as: 1. The Leases in their original form referred to the Lessor as "Concord Council" and included a definition: "The Lessor" means and includes the Lessor and where the Lessor is a Body Corporate its successors and assigns and where a natural person his executors, administrators and assigns and where not repugnant to the context the Lessor's servants or agents. 1. When the Leases were varied into the form which they took at the time of the relevant events, the definition of "Lessor" was changed to "means and includes Concord Council" and an interpretation provision was added which included: 1.2 INTERPRETATION . … (f) a reference to any party or to any person, corporation or association shall be a reference to them as so constituted from time to time and shall include their executors, administrators, successors and permitted assigns. 1. The deletion of the reference to servants and agents made it clear that, unless specifically provided otherwise, action under the Leases had to be taken by the Council and not its servants or agents. 2. Section 371 of the Local Government Act 1993 (NSW) (the "LGA") provides that "a decision supported by a majority of the votes at a meeting of the council at which a quorum is present is a decision of the council". 3. Section 371 expressly and impliedly rendered the law of agency and ratification inapplicable to "a decision of the council". Such a decision could not be delegated or ratified. 4. An examination of the minutes of Council meetings for the relevant periods shows that there was no decision of the Council at a meeting to "terminate the Leases effective immediately". 5. Terminating a lease involved a dealing with property that could not be delegated under s 377 of the LGA because it was a "financial matter" which the Explanatory Note to the LGA indicated was not something which Parliament intended councils to be able to delegate. In support of this submission Ms Randall also referred to ss 21 and 22 of the LGA and s 50(4) of the Interpretation Act 1977 (NSW) (the "IA"). 6. Council bore the onus to prove both the existence and valid exercise of the right to terminate the Leases. There had to be a decision of the Council to terminate. The Council had not shown how a servant (such as the General Manager) or agent (such as the Mayor) of the Council had the right to terminate the Leases. The Mayor had no power to direct the General Manager. Both the Breach Notice and Termination Notice were signed by the General Manager. 7. By reason of the foregoing (and other matters which it is unnecessary to set out), the absence of a "decision" by Council to "terminate the Leases effective immediately" or to "re-enter" meant that: 1. the Breach Notice was false; 2. the Termination Notice was false (in particular because it expressly said "Council" was terminating the Leases and implied that on or prior to 16 June 2003 there had been a "decision of the Council" to terminate the Leases); 3. the re-entry was wrongful and in breach of the Leases; 4. the termination was wrongful and in breach of the Leases; 5. Council trespassed onto the demised premises, wrongfully took possession of Phoenix's property and repudiated the Leases. 1. Council's then General Manager (Ms Rosser) who signed the notices on behalf of the Council and whose knowledge was to be attributed to the Council, knew of the absence of a "decision of the Council" and therefore knew of the falsity of the notices and the acts of the Council consequential upon the notice of termination. This falsity extended to Council's cross-claim filed on 28 April 2004 which asserted the validity of the termination of the Leases. 2. Council's cross-claim was verified by Mr Cook, who had attended all the relevant meetings of Council during the relevant period and himself knew that there had been no "decision". Therefore, Mr Cook's affidavit verifying the cross-claim was false to Mr Cook's knowledge and, by imputation from Mr Cook, false to the knowledge of the Council. 3. Council's purported ratification of the General Manager's actions was invalid and a further breach of the Leases. By deleting "servant and agent" in the Leases as varied it was not contractually open to ratify the General Manager's conduct and, in any event, the purported ratification did not occur during the notice period (which is when, if it could have been effective, it would have to have been done). In support of her argument about non-ratification Ms Randall relied upon the Department of Local Government's "Meetings Practice Note" published in August 2009 (the "Practice Note") and a statement in it that a council cannot later ratify a resolution made by councillors at a meeting that lacked a quorum. 4. A Jones v Dunkel inference should be drawn against the Council arising from the failure to call the Mayor, Ms Rosser or Mr Cook.
In support of her construction of the lease referred to in paragraphs [117(1) - (3)] above, Ms Randall sought to rely on a conversation which was in evidence before White J deposed to by Mr Stephen Nixon. Mr Nixon was formerly an officer of the Council who reported to Mr Cook but who gave evidence before White J in Phoenix's case. Mr Nixon deposed to a conversation with Council's then solicitor in January 2000 to the following effect: Nixon: On Agresta's request to assign the leases, is Council required to give consent? Carson: Clause 17(a) of the Leases provides for the situation when Council receives a formal request. As Council may only act pursuant to resolutions, the formal request must be submitted to Council for a resolution. Council may not unreasonably withhold consent but give consent subject to reasonable conditions. Nixon: So under 17(a) the Council can't withhold consent. Carson: Council can but it must have good reason. Neither the Mayor nor Les have the authority under the Leases to either give or withhold consent. It is my opinion that Agresta is entitled to be granted consent but consent may be given subject to reasonable conditions.
Subsequently, by letter dated 2 February 2000 Mr Carson informed Council's General Manager that in regard to the Leases "as the Council may only act pursuant to resolutions … the formal request by Mr Agresta that the leases be assigned … should be the subject of a resolution of the Council".
Ms Randall submitted that statements set out in paragraphs [118] and [119] above constituted admissions in relation to the construction of the Leases.

[17]

"No valid termination" - the Council's submissions

The Council's submissions relied upon the fact that the decision to terminate the Leases for non-payment of rent had been taken by the Mayor, Mr Tsirekas, who then instructed Ms Rosser to put that decision into effect. The undisputed evidence was that in early June 2003, Ms Rosser had a conversation with Mayor Tsirekas in words to the following effect: Mayor Tsirekas: What is the position with the advertising sign leases? I received correspondence from Mr Agresta. Has he paid what he owes us? Ms Rosser: He has not paid anything under the leases. Council is owed $450,000 in relation to each site plus interest. He has made a payment of $20,000 odd dollars but that's it. Council is still owed about $880,000 with interest. The interest is growing by the day. I think the only alternative is to terminate. Mayor Tsirekas: I agree with that. We cannot let this drag on forever. If the tenant can't pay the money then we need to end the leases and find someone who can pay rent. Do what you have to to terminate the lease.
There was also undisputed evidence from Ms Rosser saying: I did not make the decision to terminate the leases. I made recommendations to Mayor Tsirekas. I acted at Mayor Tsirekas' direction in instructing other Council officers to liaise with Abbott Tout for the purposes of the termination of the leases.
Against that background, the Council made two submissions.
First, the decision to terminate the Leases was within both the Mayor's and the General Manager's delegated authority.
Second, at a meeting of the Council held on 15 July 2003, the Council resolved to endorse the action taken by the General Manager in relation to the Leases. To the extent it was required, this constituted a ratification by the Council of the termination of the Leases.
The Council developed the submission relying upon the delegated power of the Mayor as follows.
The Council submitted that Ms Randall's approach assumed, and would have the result, that every single decision of the Council was invalid unless it was preceded by a resolution of the Council to make the decision in question "supported by a majority of the votes at a meeting of the Council at which a quorum is present". That approach, it was submitted, misunderstood the legislative framework of how a council carries out its functions and make decisions.
Section 355 of the LGA provides: 355 How does a council exercise its functions? A function of a council may, subject to this Chapter, be exercised: (a) by the council by means of the councillors or employees, by its agents or contractors, by financial provision, by the provision of goods, equipment, services, amenities or facilities or by any other means, or (b) by a committee of the council, or (c) partly or jointly by the council and another person or persons, or (d) jointly by the council and another council or councils (including by means of a Voluntary Regional Organisation of Councils of which the councils concerned are members), or (e) by a delegate of the council (which may, for example, be a Voluntary Regional Organisation of Councils of which the council is a member).
Section 371 of the LGA provides: What constitutes a decision of the council? 371 What constitutes a decision of the council? A decision supported by a majority of the votes at a meeting of the council at which a quorum is present is a decision of the council.
Section 377 of the LGA provides: 377 General power of the council to delegate (1) A council may, by resolution, delegate to the general manager or any other person or body (not including another employee of the council) any of the functions of the council, other than the following: (a) the appointment of a general manager, (b) the making of a rate, (c) a determination under section 549 as to the levying of a rate, (d) the making of a charge, (e) the fixing of a fee, (f) the borrowing of money, (g) the voting of money for expenditure on its works, services or operations, (h) the compulsory acquisition, purchase, sale, exchange or surrender of any land or other property (but not including the sale of items of plant or equipment), (i) the acceptance of tenders which are required under this Act to be invited by the council, (j) the adoption of an operational plan under section 405, (k) the adoption of a financial statement included in an annual financial report, (l) a decision to classify or reclassify public land under Division 1 of Part 2 of Chapter 6, (m) the fixing of an amount or rate for the carrying out by the council of work on private land, (n) the decision to carry out work on private land for an amount that is less than the amount or rate fixed by the council for the carrying out of any such work, (o) the review of a determination made by the council, and not by a delegate of the council, of an application for approval or an application that may be reviewed under section 82A of the Environmental Planning and Assessment Act 1979, (p) the power of the council to authorise the use of reasonable force for the purpose of gaining entry to premises under section 194, (q) a decision under section 356 to contribute money or otherwise grant financial assistance to persons, (r) a decision under section 234 to grant leave of absence to the holder of a civic office, (s) the making of an application, or the giving of a notice, to the Governor or Minister, (t) this power of delegation, (u) any function under this or any other Act that is expressly required to be exercised by resolution of the council. (2) A council may, by resolution, sub-delegate to the general manager or any other person or body (not including another employee of the council) any function delegated to the council by the Director-General except as provided by the instrument of delegation to the council.
Council submitted that Ms Randall's reliance on s 377 of the LGA was misconceived. None of the qualifications limiting the power of delegation were enlivened. Sections 21 and 22 of the LGA did not in any way qualify or limit the application of s 377. Nor was there any need to rely upon the terms of s 50(4) of the IA, which in any event supported Council's powers: 50 Statutory corporations (1) A statutory corporation: (a) has perpetual succession, (b) shall have a seal, (c) may take proceedings and be proceeded against in its corporate name, (d) may, for the purpose of enabling it to exercise its functions, purchase, exchange, take on lease, hold, dispose of and otherwise deal with property, and (e) may do and suffer all other things that bodies corporate may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions. … (4) This section applies to a statutory corporation in addition to, and without limiting the effect of, any provision of the Act by or under which the corporation is constituted.
On 20 November 2001 the Council had reviewed its delegations and made the following delegations to the Mayor and the General Manager respectively (the "2001 Delegation"): DELEGATIONS OF AUTHORITY - REVIEW OF THAT 1 The review of Council's delegations be noted 2 The previous delegations be revoked 3 Pursuant to the powers of delegation conferred upon Council by Sections 377 of the Local Government Act 1993 and pursuant to Section 226 of that Act and pursuant to every other power it hereunto enabling the CITY OF CANADA BAY COUNCIL hereby delegates to the MAYOR of the Council, the authority to exercise and perform on behalf of the Council the following functions: … C Decision Making 1 Generally Subject to the limitations contained in Sections 377 and 379 of the Local Government Act 1993 and subject to all the other provisions of that Act and any other Act, Statute, regulation, by-law, ordinance or rules pursuant to which functions are conferred upon Council to deal with and finalise such matters as the Mayor in his or her wisdom may consider it wisest and most expedient to deal with PROVIDED ALWAYS that such matters have not been otherwise delegated by Council. … 4. Pursuant to the powers of delegation conferred upon Council by Sections 377 and 381 of the Local Government Act 1993 and pursuant to every other power it (sic) hereunto enabling the CITY OF CANADA BAY COUNCIL hereby delegates to the General Manager of the Council, the power to exercise such functions, powers, duties and authorities conferred upon Council pursuant to: 1 the Local Government Act 1993; and 2 the Environmental Planning & Assessment Act 1979; and 3 the Roads Act 1993; and … 18 all other Acts or statutes whatsoever pursuant to which Council has functions, powers, duties and authorities conferred upon it; and 19 all regulations, by-laws, ordinances, rules and the like made by or under any of the Acts or statutes referred to in 1 to 18 above inclusive and without in any way limiting the generality of the foregoing, this to include all plans, policies and codes of the Council and the government and its instrumentalities As follows A Issue, modify, revoke and refuse approvals, certificates, correspondence, licenses, permits, notices, orders, authorisations, fines and penalty infringements. … J Sign correspondence, cheques, vouchers, documents, contracts, plans, orders, obtain quotations and authorise the purchase of goods works and services, engage consultants within the limits authorised in the adopted budget. Accept transfers of assets to Council. Authorise refunds … 5 THAT a report be brought back to Council whenever the Mayor exercises any of the delegations that he/she has been authorised to exercise and perform on behalf of Council.
The Breach Notice was signed on behalf of Council by the General Manager and fell within her delegation.
The Termination Notice was signed on behalf of Council by the General Manager and fell within her delegation.
On 15 July 2003 at a meeting of the Council at which a quorum was present, Mr Agresta for Phoenix addressed the Council in relation to the Leases. After Mr Agresta's address, the Council resolved that the action taken by the General Manager be endorsed. So much appears from the Minutes of the meeting, which were in evidence (emphasis added): ITEM 11 LEASE OF ADVERTISING SIGNS - YOUNG STREET, NORTH STRATHFILED AND VICTORIA AVENUE, CONCORD WEST The Mayor advised that Mr. F. Agresta of Phoenix Commercial Enterprises Pty. Ltd. has sought to address Council in regard to the lease for the advertising signs. M-404 RESOLVED (Crs Woods/Wroblewski) THAT approval be granted for Mr. Agresta to address Council in Closed Session. M-405 RESOLVED (Crs Wroblewski/Lavender) THAT the Council consider the balance of this Agenda in Closed Session with the public and press excluded in accordance with Section 10A(2)(a) and (c) of the Local Government Act 1993. At 10.46p.m., the meeting went into Closed Session. COUNCIL IN CLOSED SESSION ITEM-11.1 YOUNG STREET, NORTH STRATHFILED AND VICTORIA AVENUE, CONCORD WEST - LEASE OF ADVERTISING SIGNS MOTION (Crs Wroblewsi/Kenzler) 1. THAT the action taken by the General Manager be endorsed. 2. THAT in the event the rental payments owing are fully paid: (a) the lease be re-activated for the remainder of the term; and (b) twelve (12) months prior to expiration of the term, negotiations for a further term be instigated. AMENDMENT (Crs Cantali/Lavender) THAT a variation and extension of the lease on the basis of monthly payments be negotiated. THE AMENDMENT WAS PUT AND LOST. THE MOTION WAS PUT AND CARRIED. M-406 RESOLVED (Crs Wroblewski/Kenzler) 1. THAT the action taken by the General Manager be endorsed. 2. THAT in the event the rental payments owing are fully paid: (a) the lease be re-activated for the remainder of the term, and (b) twelve (12) months prior to expiration of the term, negotiations for a further term be instigated.
Where a public official or authority purports to exercise power or to do an act in the course of his or her duties, a presumption arises that all conditions necessary to exercise that power or the doing of that act have been fulfilled: Minister for Natural Resources v New South Wales Aboriginal Land Council & Anor (1987) 9 NSWLR 154 at 165. Ms Randall had not adduced any evidence to rebut the presumption of regularity. The delegations of authority in evidence in any event demonstrated that the act of termination of the Leases was within the relevant delegations.
Even if the General Manager's actions in terminating the Leases were not initially authorised, the endorsement of the General Manager's conduct by Council on 15 July 2003 ratified her actions to terminate the Leases: Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 at [131]-[134]; McHugh & Anor v Eastern Star Gas Ltd & Ors [2012] NSWCA 169 at [58]-[59].
In answer to Ms Randall's reliance on Mr Carson's alleged admissions, Council submitted: 1. As a matter of practice, the observation by Mr Carson could not constitute an admission for the purpose of these proceedings. The advice was given in February 2000 and related to a potential assignment of the Leases. It did not relate to any issue in these proceedings. 2. Mr Carson's observation did not appear to take account of the delegation of powers then extant under s 377 of the LGA. 3. The advice was given to an employee of Council. It was not and had never been a representation made to Ms Randall or Phoenix as to a state of fact or at all at any time or in the proceedings.
Insofar as Ms Randall submitted that ratification had to occur before 16 June 2003, the Council submitted that it was not possible to have ratified the decision before it was implemented. Ratification would be unnecessary if a decision by resolution was expressly made before termination.
The Council relied on the analysis of the powers of statutory corporations and the means by which a corporation acts set out by Vickery J in Rail Signalling Services Pty Ltd v Victoria Rail Track [2012] VSC 452 ("Rail Signalling") (citations omitted): 44 A statutory corporation such as VicTrack is a corporation created by statute. 45 As such, the corporation can do only those things that the constituting act of a statutory corporation contemplates be done by it. The statute may contain express statements with respect to the purposes, objects, functions, powers and duties of the corporation. Those express statements, together with the necessary implications to which they give rise, are the source of the corporation's authority and capacity and define the limits of its powers. 46 As noted by Barrett J in Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council and Ors this principle has been applied by courts in Australia of the highest authority to a wide variety of corporations created by statute for public purposes. 47 An early authoritative statement is to be found in Baroness Wenlock v River Dee Co where Bowen LJ observed in the course of distinguishing between a corporation created by statute and one having the characteristics of what was described as a "common law corporation": What you have to do is to find out what this statutory creature is and what it is meant to do; and to find out what this statutory creature is you must look at the statute only, because there, and there alone, is found the definition of this new creature. It is no use to consider the question of whether you are going to classify it under the head of common law corporations. Looking at this statutory creature one has to find out what are its powers, what is its vitality, what it can do. It is made up of persons who can act within certain limits, but in order to ascertain what are the limits, we must look to the statute. The corporation cannot go beyond the statute, for the best of all reasons, that it is a simple statutory creature, and if you look at the case in that way you will see that the legal consequences are exactly the same as if you treat it as having certain powers given to it by statute, and being prohibited from using certain other powers which it otherwise might have had. 48 Also on point are the observations of Nicholson J in Re Honey Pool of Western Australia (No 2) where it was held: The general rule with respect to the powers of a statutory corporation is stated as follows in Halsbury's Laws of England (4th ed) p 779, para 1333: "The powers of a corporation created by statute are limited and circumscribed by the statutes which regulate it, and extend no further than is expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of its incorporation, or may be fairly regarded as incidental to, or consequential upon, those things which the legislature has authorised. What the statute does not expressly or impliedly authorise is to be taken to be prohibited". And further: When the powers of a statutory corporation are known, there is long-standing authority that the doctrine of ultra vires should be applied not unreasonably: City of Winnipeg v The Canadian Pacific Railway Co [1953] ADC 618 at 619 applying The Ashbury Railway Co v Riche (1875) LRR 7 HL 653 and Attorney-General v The Great Eastern Railway Co (1880) 5 App Cas 473 at 478. The basic question, however, is to identify the relevant powers. In Attorney-General v Smethwick Corpi [1932] 1 Ch 562 at 576-7 reliance was placed upon what was said in Great Eastern Railway, supra and also on a portion of the speech by Lord Watson in Baroness Wenlock v River Dee Co (1885) 10 App Cas at 362 (relied upon Lord Cave in Deuchar v Gas Light & Coke Co [1925] AC 691 at 695) to the following effect: "Whenever a corporation is created by Act of Parliament, with reference to the purposes of the Act, and solely with a view to carrying these purposes into execution, I am of opinion not only that the objects which the corporation may legitimately pursue must be ascertained from the Act itself, but that the powers which the corporation may lawfully use in furtherance of these objects must either be expressly conferred or derived by reasonable implication from its provisions". These authorities and principles have been recognised in Civic Co-operative Permanent Building Society Ltd v Registrar of Co-operative Societies and Agents (1974) 2 ACTR 49. Means by Which a Corporation Acts 49 A further principle of importance to the present case is the related issue of the means by which a statutory corporation carries out the various purposes, objects, functions, powers and duties assigned to it by statute. For this the corporation relies upon natural persons to supply it with both a corporate "mind" and the physical capacity to undertake its assigned functions and exercise its powers and duties. 50 In Lennard's Carrying Company Limited v Asiatic Petroleum Company Limited Viscount Haldane LC said: [A] corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation.
Furthermore, the Council relied upon the principles relating to the application of the common law principle of ratification by statutory corporations set out in Rail Signalling: 57 A statutory corporation, being a legal person, continues to enjoy the benefits, is subject to the duties and incurs the liabilities imposed by the common law, unless by statute or subordinate legislation these benefits, duties and liabilities are modified in some way or abrogated entirely. 58 Although the former rule expounded by O'Connor J in Potter v Minahan can no longer be regarded as good law, and no weight can now be attributed to the principle that Parliament is presumed not to intend to abrogate common law rights, nevertheless if the general law is to be modified or rendered inapplicable by a statute, it must make provision for this, either expressly or by implication as revealed after applying the usual rules and principles of statutory construction. The TIA did no such thing in relation to the common law which is applicable to the present matter, namely the general law of agency. 59 The TIA, rather than modifying or qualifying the application of the common law to a Transport Corporation such as VicTrack, in fact reinforces its force and effect in relation to such bodies. Being a body corporate under the TIA carries with it the normal incidents of legal personality. It has all the right, protections, privileges, responsibilities, and liabilities under law, just as natural persons do. For example, it may sue and be sued (s 142(1)(c)). This in turn carries with it, by implication, the notion that it has legal rights which may be enforced at law. It also incurs legal duties which equally may be enforced against it. Indeed the TIA expressly recognises that a Transport Corporation "may do and suffer all acts and things that a body corporate may by law do and suffer" (s 42(1)(c)). 60 For this reason the common law of agency, which applies to any legal person, applies with equal force to a statutory corporation created under the TIA. Indeed the common law principles of agency are a natural adjunct to the exercise by VicTrack of its statutory powers and functions, such as the power to enter into any agreement or contract pursuant to s 152(2)(a) of the Act. 61 Two principles of agency law are applicable in the present case: the 'Carltona Principle' and the principle which relates to the ratification of earlier but unauthorised conduct of an agent purportedly undertaken on behalf of a principal. These principles are discussed below. 62 However, RSS took a different position. It contended that common law principles as to the retrospective ratification of an agent's acts do not extend to an "arm of Government". By way of support it placed reliance on the decision of Einstein J in State of New South Wales v Bovis Lend Lease Pty Ltd (formerly Civil & Civic Pty Ltd) (the "Bovis Lend Lease case"). 63 In that case a statutory corporation, the Sydney Olympic Park Authority ("SOPA"), brought proceedings purportedly representing the Crown in right of New South Wales and in the name of the State of New South Wales against Bovis Lend Lease Pty Ltd (Bovis Lend Lease) and Lend Lease Corporation Limited (Lend Lease). The claims arose out of a contract between the Minister for Public Works as principal and Bovis Lend Lease and Lend Lease for the construction by Bovis Lend Lease of the Sydney Aquatic Centre at Homebush in anticipation of the staging of the 2000 Olympic Games in Sydney. It was claimed that the aquatic centre suffered from significant defects. The proceedings were referred to a referee for inquiry. Bovis Lend Lease sought to challenge SOPA's notice of motion that the Court adopt the referee's report. 64 An issue was SOPA's capacity to sue for the claimed relief. SOPA brought the proceedings pursuant to s 4 of the Crown Proceedings Act 1988 (NSW). SOPA was a successor to the Homebush Abattoir Corporation, a statutory corporation in which the land on which the Aquatic Centre was constructed vested at the material time. 65 In the view of Einstein J SOPA did not establish any entitlement to bring the proceeding for the enforcement of the contract. It was found that the Minister of Public Works did not enter the contract as agent of SOPA's predecessors in title to the site and that no contractual rights devolved to SOPA under its incorporating Act or otherwise. The incorporating Act did not entitle SOPA to bring the proceedings in the name of the State of New South Wales involving the subject matter of the contract. Similarly, the Sydney Olympic Park Authority Act 2001 (NSW) provided no basis to validate SOPA's institution of the proceedings on behalf of the Crown under the contract. Further, it was found that there was no statutory vesting of any right in SOPA to sue under the contract on behalf of the Crown. 66 In the course of his reasoning, Einstein J referred to the common law principles of agency. It was concluded that the Minister for Public Works could not have contracted as agent for SOPA. This was for the reason that SOPA did not exist at the time when the contract was either made or performed. At common law an agent may contract on behalf of an undisclosed principal but not on behalf of a non-existent principal. This is an application of a well established rule of agency, as noted in Dal Pont's Law of Agency (citing Trident General Insurance Co Pty Ltd v McNiece Bros Pty Ltd ("Trident"): "A principal who lacked the capacity to enter a contract at the time when it was made cannot ratify the contract". 67 Einstein J also referred to the evidentiary difficulty in placing reliance on principles of agency which may apply to private transactions which are "not apt to be applied to contracts involving various arms of Government" ... because, "unlike in the case of private entities, it would not necessarily be assumed that a Minister, when entering a contract would be acting as agent for a statutory corporation ....". This observation, however, fell short of the proposition contended for by RSS that in the Bovis Lend Lease case Einstein J expressly rejected the proposition that common law principles as to the retrospective ratification of an agent's acts extend to an "arm of Government". Indeed, his Honour accepted the common law principle that an agency relationship could be established by subsequent ratification by the principal of acts done on its behalf, although on the facts this did not apply to the case at hand because the principal, namely the statutory corporation SOPA, did not exist at the time of the commission of the acts purportedly done by the Minister of Public Works on its behalf. 68 The difficulties faced by SOPA in the Bovis Lend Lease case are not shared by VicTrack in the present. 69 As VicTrack did exist at the time of the issue and service of the relevant contractual notice on RSS comprising the 23 August Notice, at common law, Davidson was in a position to undertake the exercise on its behalf as its agent. 70 Further, there being no statutory impediment in its path, at common law, VicTrack in turn was in a position at a later time to ratify Davidson's earlier conduct in carrying out these tasks, should it need to do so. 71 For these reasons the submission made by RSS to the effect that the common law principles as to retrospective ratification can have no application, cannot be accepted. The principles plainly do have application.
The Council also relied upon this statement by Barrett JA in 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 [2014] NSWCA 409: 54. A transaction purportedly undertaken by a corporation that the corporation has no power to undertake cannot be ratified. This rule is most often associated with Ashbury Railway Carriage & Iron Co Ltd v Riche (1875) LR 7 HL 653. It was stated by Vaughan Williams LJ in Towers v African Tug Co Ltd [1904] 1 Ch 558 (at 566) in these terms: "[I]f an act is done by a company, which is ultra vires, no confirmation by shareholders - not even by every member of the company - can convert that which was ultra vires into something intra vires. It always must be ultra vires." 55. The position is different where the corporation has the necessary power but the instrumentality by which it purportedly acted when exercising the power was not competent to exercise it. In a case of that kind, the action in question can be ratified by a competent instrumentality.
Relying on the dictum of Viscount Haldane LC referred to in Rail Signalling at [50], the Council submitted that the Mayor and the General Manager supplied the Council with the corporate mind and the physical capacity to undertake its functions and exercise its powers and duties. In this regard the 2001 Delegation delegated various powers to the Mayor and General Manager which included the power to terminate the Leases. The Mayor had the power to terminate the Leases and to direct the General Manager to terminate the Leases. The General Manager had the power to sign and effect service of the Breach Notice and the Termination Notice.
The Council as a statutory corporation, being a legal person, continued to enjoy the benefits and was subject to the duties and incurred the liabilities imposed by the common law, unless by statute or subordinate legislation those benefits, duties and liabilities were modified in some way or abrogated entirely: Rail Signalling at [57]. There was nothing in the LGA or any other provision which expressly or impliedly limited the application of the common law principles of agency and ratification.
Insofar as Ms Randall sought to rely on clause 4.25 of the Practice Note, the Council submitted that the note was made in August 2009. The Leases were terminated on 25 June 2003 with the ratifying resolution being made on 15 July 2003. The Practice Note was not in place at the time and was irrelevant. In any event, clause 4.26 of the Practice Note did not apply because no resolution to terminate the Leases was made by the Council at a meeting. The decision to terminate the Leases was made by the Mayor under his delegated authority. It was the termination of the Leases effected by the General Manager on behalf of the Council that was ratified by the Council.
Finally, in answer to Ms Randall's submission that the Council could not ratify the act of terminating the Leases after the termination had occurred and Council had re-entered the premises, the Council submitted that the LGA did not modify the common law right of ratification. Ratification has a retrospective effect to validate conduct and the outcome of that conduct which occurred or arose prior to the act of ratification. Council relied, by analogy, with the conclusion of McHugh JA (with whom Hope and Priestley JJA agreed) in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1987) 8 NSWLR 270 at 280-281 that a contract of insurance could be ratified after the occurrence of the loss.
The Council submitted that provided the principal itself had the power to engage in the relevant conduct at the time of its unauthorised performance by another person, once the act of the other person is adopted by the principal, the effect of the adoption will be governed by the maxim omnis ratihabitio retrotrahitur et mandato priori aequiparatur (every consent given to what has already been done has retrospective effect and is equivalent to a command at the outset): Davison v Vickery's Motors Ltd (In liq) [1925] HCA 47; (1925) 37 CLR 1 at 19 per Isaacs J; Union Bank of Australia Ltd v Rudder [1911] HCA 39; (1911) 13 CLR 152 at 162 per Griffith CJ.

[18]

Ms Randall's submissions in reply

In answer to a number of matters raised by the Council, Ms Randall's submissions in reply squarely assert that fraud undoes everything.
In answer to the Council's defence based on res judicata and issue estoppel, Ms Randall submitted the public interest in finality of litigation will not preclude the exceptional step of a court reviewing or rehearing an issue when it has good reason to consider that it has proceeded on a misapprehension of the facts or the law: Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 per Mason CJ at 302.
In section 7 of her submissions in reply of 23 November 2014 Ms Randall expanded upon why she submitted a Jones v Dunkel inference should be drawn against the Council in relation to its failure to call Ms Rosser, Mr Tsirekas and Mr Cook.
In relation to s 377 of the LGA, Ms Randall submitted the power to terminate the Leases could not be delegated because it fell within s 377(1)(h) ("Compulsory acquisition, purchase, sale, exchange or surrender of any land and or other property"). This argument had two parts: 1. By terminating the Leases, Council "acquired" rights it did not have before termination, e.g. the right to take over the structures on the land. 2. Council's re-entry brought about a "disposition of property". As at June 2003 "disposition of property" was defined in r 40A of the Local Government (General) Regulation 1999 (dealing with disclosure of pecuniary interests) to include: (c) The grant or creation of a lease, mortgage, charge, easement, license, power, partnership or interest in respect of property; and (d) The release, discharge, surrender, forfeiture or abandonment, at law or in equity, of a debt, contract or chose in action, or of an interest in respect of property …
Ms Randall also submitted that the power to terminate the Leases could not be delegated because it fell within s 377(1)(i) ("the acceptance of tenders which are required under this Act to be invited by the Council"). That argument called in aid s 55(1)(h) of the LGA (as to when Council had to invite tenders) and r 5(2) of the Local Government (Tendering) Regulation 1999 (contracts including the variation or discharge of which were required to be in writing and executed by or on behalf of Council). It was submitted that because the Leases were the product of tenders the acceptance of which could not be delegated and the discharge of which had to be in writing executed by or on behalf of Council, the discharge (which included "termination" as a matter of ordinary meaning) could also not be delegated. Furthermore, because the power had to be exercised by the Council's governing body, it could not be done indirectly by the Mayor or General Manager.
Further in relation to delegation, Ms Randall submitted that the "decision making function" of the Council under s 371 of the LGA could not be delegated to the Mayor or the General Manager. Alternatively, all functions had been delegated to the General Manager. Therefore, the Mayor had not been delegated the function of "decision making" and had no power to make a decision to terminate the Leases.
Insofar as Council submitted the Mayor directed the General Manager to terminate the Leases, Ms Randall answered this with the argument that the Mayor had no authority to direct the General Manager. This was put in two ways: 1. In making the 2001 Delegation, Council had accepted a recommendation not to renew an earlier delegation to the Mayor of the Council's power to "direct the General Manager as to performance of his powers, duties and responsibilities". 2. The Mayor had no power under the LGA to direct the General Manager to do anything. The General Manager's primary role under s 335(1) of the LGA was "ensuring the implementation, without delay, of decisions of the Council" and not the Mayor.
Ms Randall next submitted that Rail Signalling was distinguishable, including because: 1. The superintendent appointed by Vic Track had express contractual power to execute contractual documents (there being no such power in the Leases). 2. The document in question in Rail Signalling had no financial impact, unlike the Termination Notice. 3. The relevant legislation in Rail Signalling said any power could be delegated, whereas in this case there was no power to delegate "a decision of the Council".
Finally, Ms Randall submitted that what she referred to as "the principles of "estoppel"" applied in the circumstances regarding the Council's "fresh" reliance on the purported delegations of authority. Those principles, it was said, meant that the Council's reliance on the delegations should not be accepted.

[19]

"No valid termination" - some observations preliminary to resolution

In resolving this part of Ms Randall's claim it is necessary to make five preliminary observations.
First, Ms Randall's contentions (see paragraph [117] above) raise two distinct arguments. The first is a question of the proper construction of the Leases as to whether "Lessor" included its servants and agents. The second, which built on the first but was also apparently put as an independent point, was that there had been no "decision of the Council" pursuant to s 371 of the LGA. This was known by Ms Rosser and Mr Cook so that their involvement on behalf of the Council in advancing the submission that the Council had validly terminated the Leases meant those submissions were fraudulent to their (and the Council's) knowledge. The fraud was said to be that the Termination Notice, in particular, represented that there had been a decision of the Council to terminate the Leases, which they knew to be false.
Second, because, unlike her submissions about the Council as consent authority, Ms Randall's "no valid termination" argument is new, it was not considered by either White J or the Court of Appeal. However, for the purposes of the Court's primary reasoning set out in the following paragraphs, it is not necessary to determine the correctness of the argument. However, the Court will go on to do so as an alternative.
Third, while Ms Randall's "no valid termination" argument may be new, the validity of the Council's termination of the Leases and subsequent re-entry was very much in issue in the earlier proceedings. By paragraphs 26 to 30 of its further amended statement of claim, Phoenix alleged the Breach Notice was invalid because: 1. It was in breach of s 129 of the Conveyancing Act 1919 (NSW) because there had been no default in payment of rent. 2. No rent was outstanding in May or June 2003. 3. The Council had failed to comply with s 129 of the Conveyancing Act. 4. The Breach Notice was misleading contrary to s 42 of the Fair Trading Act 1987 (NSW) (the "FTA") because it represented that rent was owing when in fact it was not.
The Council denied these allegations made in Phoenix's further amended statement of claim. By its cross claim, the Council pleaded the Breach Notice and the Termination Notice. Those allegations were denied by Phoenix. Phoenix also denied the Council's claim for a declaration that the Council's determination of the Leases in June 2003 was valid.
Fourth, while Ms Randall's argument included the assertion that the Breach Notice was false to the knowledge of the Council, the burden of her argument fell on the Termination Notice. The Breach Notice can be immediately dismissed from consideration in these proceedings for two reasons: 1. White J determined (at [98] of White J's Judgment) that in asserting that rent was owing under the Leases, the Breach Notice was not misleading in contravention of s 42 of the FTA. 2. On no view of the Breach Notice did it expressly or impliedly say anything about the decision to terminate the Leases. Ms Randall's argument in this Court was firmly directed to the proposition that the Breach Notice falsely represented that there had been a decision by the Council to terminate the Leases.
Fifth, the facts surrounding the giving of the Termination Notice and the purported ratification by Council were in narrow compass and not in dispute (see paragraphs [121], [122] and [135] above). In particular, Council accepted that there had been no "decision of the Council" within the meaning of s 371 of the LGA before the Termination Notice was served.

[20]

"No valid termination" - resolution

Even without determining the correctness of Ms Randall's submission about "a decision of the Council", her arguments (see paragraph [117] above) fail for the following three reasons.
First, no misrepresentation was made to either White J or the Court of Appeal by the submission that Council had validly terminated the Leases. There are three reasons for this: 1. Ms Randall's reliance on the concept of misrepresentation misunderstands the nature of the submission. The Court's observations in paragraphs [103]-[105] above are equally applicable here and are incorporated by reference. 2. The Termination Notice made no express or implied representation about the decision making process behind its issue and certainly not that there had been a "decision of the Council" either generally or within the meaning of s 371 of the LGA. 3. The existence of Ms Randall's "no valid termination" argument does not make Council's submission, when it is understood as such, a misrepresentation. The arguments which the Council mounted before me based on the facts as they are now known (see paragraphs [121], [122] and [135] above) to meet Ms Randall's argument were, whether or not correct, obviously reasonably arguable and therefore demonstrate that the Council's submission of a valid termination of the Leases before White J and in the Court of Appeal was properly open to it. In other words, had Ms Randall's "no valid termination" argument been raised in the earlier proceedings, the Council could nonetheless have submitted without misrepresentation that it had validly terminated the Leases by recourse to the arguments which it advanced before me.
Second, the reasons given in paragraphs [108] to [109] above apply equally to Ms Randall's reasoning in relation to Ms Rosser's and Mr Cook's knowledge of the matters referred to in paragraph [117(10)-(11)] above. Again, that reasoning is contrived and flawed. It assumes the conclusion (Council had not validly terminated the Leases), identifies a series of factual and legal matters that support that conclusion and then invites the Court to infer that Ms Rosser and Mr Cook knew those matters. It is then contended because those knew those matters, they could not have had an honest belief that it was contrary to the assumed conclusion. This last conclusion is sought to be fortified by a Jones v Dunkel inference because neither of them gave evidence.
This type of argument fails for two reasons: 1. Even assuming that Ms Rosser and Mr Cook knew the matters alleged, they would be insufficient for the Court to draw the serious conclusion of fraud sought by Ms Randall i.e. that Ms Rosser and Mr Cook did not have an honest belief insofar as they were responsible for the Council's submission that it had validly terminated the Leases by the Termination Notice. While that conclusion would be on the balance of probabilities, it would require the Court to be satisfied to the degree which reflects the seriousness of the allegation (see paragraph [67] above). This could not be the case when the Council's position as argued before me was a conclusion of mixed fact and law which represented a plainly arguable position. Furthermore, it was not suggested that Ms Rosser or Mr Cook had legal training. As a matter of common sense, lay people armed with the facts referred to in paragraphs [121], [122] and [135] above would have had every reason to believe that Council had validly terminated the Leases by the Termination Notice. Lawyers, for the reasons contended for by the Council before me, could also have reasonably come to the same conclusion. Whether that conclusion was legally correct is a matter which only the Court could decide. 2. Again, Ms Randall's reliance on Jones v Dunkel is misplaced for the reasons identified in paragraph [109(4)] above, which are incorporated here by reference.
Third, Ms Randall submitted that she only discovered the facts relied upon (see paragraphs [121], [122] and [135] above), but essentially the absence of a "decision of the Council", after the White J judgment and the Court of Appeal judgment. However, that is not to the point. At various times Phoenix was legally represented, including before White J and the Court of Appeal. Moreover, it is clear from the material referred to at paragraphs [223] to 225] below that Phoenix's lawyers were alive to questions of authority and how any decision to terminate the Leases had been made. The facts which Ms Randall now relies upon are not "new" facts of the kind that would warrant the extraordinary remedy of setting aside the relevant judgments and orders, especially in the absence of any fraud having been made out.
As has already been noted, the Court has found against Ms Randall without having to determine the merits of the "no valid termination" argument. Because the matter may go further and out of deference to the extensive arguments of the parties, I set out, as briefly as possible, my views on the merits of the argument in paragraphs [170] to [180] below.
The Leases are relevantly identical so in what follows relates to each of them, including in their amended form by reason of the deeds of variation.
Ms Randall's argument based on the change in definition of "Lessor", with respect, misses the point because the right upon which the Council relied under the Amended Leases was a right at common law and not a right vested in the Council under the express terms of the Leases.
The amendment of the Leases by deleting so much of the definition of "Lessor" as included its servants or agents needs to be understand in the light of the fact that the totality of the relevant deleted words were ""The Lessor" means and includes the Lessor…and where not repugnant to the context the Lessor's servants or agents" (emphasis added). The emphasised words demonstrate that the deletion was more illusory than real in its legal effect because there is little in the unamended Leases where the inclusion was not repugnant to the context. For example, some clauses in the unamended Leases which survived into the amended Leases were quite specific to include servants or agents so the inclusion was otiose e.g. "it is hereby agreed that it should be lawful for the Lessor and its agents" (clause 9) and "the Lessor and its servants and agents may … enter" (clause 11).
On the other hand, the unamended clause 15 which dealt with default and termination gave the "Lessor" rights in terms which it would have been repugnant to read as including the Lessor's servants and agents in any event. However, clause 15 in the Amended Leases was, in any case, in entirely different terms. This was noted in White J's judgment: 30 Apart from the concluding words of clause 15(g), that is, the provision that "failure to pay the outstanding Rental within five years of the date of this Deed of Variation will constitute a breach of an essential term of this Lease", there was no provision in the lease as varied dealing with determination of the lease by the lessor. There was no express provision dealing with rights of re-entry. Nor does the lease contain any term requiring payment of rent or other moneys to be made without deduction or set-off.
In the amended Leases there was no express right in the Lessor to terminate for breach for non-payment of rent. However, as White J, with respect correctly, found, the Council was entitled to terminate or forfeit the Leases for non-payment of rent under the common law: 108 In the proposed further amended pleading the plaintiff also seeks to allege that the Council is not entitled to terminate the leases because the demand of 13 May 2003 did not include the notice required under Sch 6 of the Conveyancing Act (1919) (1919) NSW, and also because neither lease included a forfeiture clause. The plaintiff's counsel did not make any submissions in support of these proposed amendments. A notice in accordance with Sch 6 of the Conveyancing Act is required where a lessor is required to give notice under s 129 of the Conveyancing Act. That section does not apply to the forfeiture of leases for non-payment of rent (s 129(8)). Clause 15(g) provided that a failure to pay outstanding rent within five years of the date of the Deed of Variation constituted a breach of an essential term of the lease. Because the obligation to pay rent was essential, the Council was entitled to terminate or forfeit the lease for non-payment of rent.
The only question, therefore, is whether the termination of the Leases purportedly effected by the Termination Notice was, in law, an act of the Lessor, i.e. the Council?
Ms Randall's quest for, and reliance upon the absence of, a decision of the Council under s 371 of the LGA was, with respect, misdirected. The relevant question is whether Ms Rosser was authorised to sign a document on behalf of the Council whereby the Council exercised a legal right available to it, namely to terminate the Leases. If there was any doubt about Council's right to exercise that right, such doubt would be eliminated by s 50(1)(d) and (e) and (4) of the IA (see paragraph [131] above).
Ms Rosser's power to sign the Termination Notice on behalf of the Council came from the delegation to her set out in paragraph [132] above. Ms Rosser's subjective view that she had not made the decision to terminate the Leases is not to the point. That power was to sign documents whereby the Council exercised its power under "all other Acts or statutes whatsoever pursuant to which Council has functions, powers, duties and authorities conferred upon it", being in this case its power to lease property under s 50(1)(d) of the IA and to do something incidental to that power (s 50(1)(e) of IA) being the termination of a lease.
That delegation to Ms Rosser was authorised by s 377 of the LGA. Ms Randall's attempts to demonstrate that the delegation of the power to terminate the Leases was prohibited by describing it as a "financial matter" (relying on the Explanatory Note to the LGA) or sub-sections 55(1)(h) or (i) were, with respect, completely misconceived. The constructions for which Ms Randall contended of sub-sections 377(1)(h) and (i) sought to give the words in those sub-sections meanings which they just do not have and relied on ingenious but legally impermissible appeals to other parts of the statute in an endeavour to broaden the plain meaning of the relevant words. The other parts relied upon simply had nothing to say about the construction of the words in s 377 under consideration.
If there were any doubt about the validity of the Termination Notice, it was dispelled by the Council's ratification in its meeting on 15 July 2003. As an act which the Council could have done itself by a decision at a meeting, in accordance with the statement of Barrett JA set out in paragraph [142] above, the Council was entitled to ratify the termination of the Leases purportedly effected on its behalf by the Termination Notice signed by Ms Rosser. That ratification could occur either before or after the Termination Notice came into effect.
On the approach set out in paragraphs [170] to [179] above it is not necessary for there to have been a decision by the Mayor to terminate the Leases. It was within Ms Rosser's delegated authority to terminate the Leases. If this conclusion is wrong, there was also a decision by the Mayor which the Court is satisfied fell within his delegated authority under clause C1 of the 2001 Delegation (see paragraph [132] above). There is no reason under any statute relied on by Ms Randall or common law principle why one mind of the Council (the Mayor) could not direct another mind (Ms Rosser) to give effect to the Mayor's decision. Ultimately these were all acts of the Council.

[21]

Reinstatement - Ms Randall's submissions

Ms Randall relied on s 601AH(2) of the Corporations Act 2001 (Cth): Reinstatement by Court … (2) The Court may make an order that ASIC reinstate the registration of a company if: (a) an application for reinstatement is made to the Court by: (i) a person aggrieved by the deregistration; or (ii) a former liquidator of the company; and (b) the Court is satisfied that it is just that the company's registration be reinstated.
To establish that she was "a person aggrieved" Ms Randall relied on the judgment of Young CJ in Equity (as this Honour then was) in Casali v Crisp [2001] NSWSC 860 ("Casali") in which his Honour said: 27 The mere fact that a person is a shareholder or a director of a deregistered company is insufficient to establish that that person is a person aggrieved within s 601AH; see eg Re Waterbury Nominees Pty Ltd (1986) 11 ACLR 348. As Olney J said in Re Waldcourt Investment Co Pty Ltd (1986) 11 ACLR 7, 12: "I do not think that either a shareholder or a director as such must necessarily be aggrieved by the cancellation of the registration of a company. An applicant must, in my opinion, show that his interests have been or are likely to be prejudicially affected by the cancellation of registration." That prejudice might be shown by the shareholder showing that he or she was also a creditor of the company or that there might well be a surplus of assets if the company were reinstated and certain events occurred.
Ms Randall submitted that in addition to being a shareholder and director, she was a creditor of Phoenix to the amount of $550,000. The evidence tendered by her in support of this was a series of undated invoices signed by Ms Randall addressed to Phoenix for annual "Director and Secretary fees" of $33,000 per annum and a "statement" referring to those invoices and loans (presumably by Ms Randall to Phoenix) of $187,000.
Ms Randall also submitted in reply that she had been the source of $103,000 which Master McLaughlin (as his Honour then was) had accepted in an earlier security for costs judgment in the proceedings that Phoenix had spent on legal fees. Such financial assistance was apparently to be repaid out of the damages payable to Phoenix by the Council for wrongful termination of the Leases.
Insofar as Ms Randall sought to establish "that there might be a surplus of assets if the company was reinstated and certain events occurred", she relied on the damages which it was said Phoenix would receive for suing the Council in relation to matters being agitated in the present proceedings. This appeared to contemplate Phoenix suing on the same bases as Ms Randall relied on in these proceedings. In the schedule to her submissions setting out how the alleged damages were calculated it was said that these would have included substantial annual licence fees that would have been payable to Phoenix by Boyer over a number of years which Phoenix had lost by reason of the termination of the Leases. In other words, the possibility of there being a surplus if Phoenix was reinstated depended upon Phoenix succeeding in the same arguments being propounded by Ms Randall in these proceedings.
Finally, in the submissions made on her behalf, Ms Randall relied on the power in s 601AH(3(d) of the Corporations Act that "the Court may make any other order it considers appropriate" to invite the Court to make orders to the effect of: 1. Judgment for Phoenix against the Council for $6,959,579.71; and 2. Judgment for Ms Randall against Phoenix in the sum of $550,000.
The orders referred to in the preceding paragraph were sought on the basis that she was a person aggrieved, Council had fraudulently procured the judgments and orders and had wrongfully terminated the Leases.

[22]

Reinstatement - the Council's submissions

The Council made two submissions as to why Ms Randall did not have standing as a person aggrieved by Phoenix's deregistration.
First, relying upon Casali (at [27] and [28]), the mere fact that a person is a shareholder or director of a deregistered company is insufficient to establish that the person is aggrieved within the meaning of s 601AH.
Second, if a company is insolvent and in liquidation then ordinarily shareholders and directors are not aggrieved by the deregistration. Phoenix was at the time of deregistration hopelessly insolvent. If a company is insolvent and in liquidation before deregistration then ordinarily a shareholder and director are not aggrieved by the deregistration.
Alternatively, the Council submitted that even if Ms Randall had standing to bring the application to reinstate Phoenix, it was not just for Phoenix to be reinstated for these reasons: 1. It is contrary to public policy to reinstate a hopelessly insolvent company. At the time Phoenix was wound up and later deregistered, the Council was and remains a judgment creditor for $1,626,612.91 plus interest. Ms Randall claims she was a creditor of Phoenix of unpaid directors' fees. 2. A court will be less likely to reinstate a company which has been wound up: Donmastry Pty Ltd v Albarran [2004] NSWSC 632 at [5]; (2004) 49 ACSR 745. 3. Ms Randall had not notified the former liquidators of Phoenix of the application and they have not consented to Phoenix being reinstated. Any reinstatement of Phoenix should be on the footing that the pre-existing liquidator resumes office or that a replacement liquidator is appointed (Donmastry at [14]-[15]). 4. The purpose of seeking the reinstatement of Phoenix is to enable it to bring an application to set aside the various judgments and orders the subject of these proceedings on the basis that they were procured by fraud and to pursue a claim for damages against the Council. Both of those claims are hopeless. The claim of fraud is without substance and the claim for damages would not overcome issues of res judicata and issue estoppel. 5. In addition to the hopelessness of the claims, there would be no utility in reinstating Phoenix for the purpose of pursuing those claims. If reinstated, Phoenix would continue to be in liquidation and any proceedings could only be brought by its liquidator carried on by a solicitor retained by the liquidator. Even if the liquidator resolved to commence proceedings, there was a large question as to how the costs of those proceedings could be met. The proceedings could be stayed until security for costs of the Council were provided. The logical providers of security for costs are Ms Randall, who has conceded that she is impecunious, and Mr Agresta, who is an undischarged bankrupt. It is therefore completely unrealistic to suggest that, even if reinstated, the liquidator of Phoenix would be in a position to finance any proceedings.
In later submissions the Council restated these submissions by reference to the proposition that the two conditions in s 601AH2(a) and (b) are conjunctive, not disjunctive: Millbrook Finance Pty Ltd v Australian Securities Investments Commission, in the matter of Kekpek Pty Ltd [2014] FCA 620 at [6].
Insofar as Ms Randall is a former director of Phoenix, she is not aggrieved by Phoenix having been deregistered. Directors generally do not have standing to apply as they would have ceased to exercise their functions as directors on liquidation: In the matter of Peter Conyers Pty Ltd (In liq) (1996) 14 ACLC 1835. The deregistration of Phoenix did not affect her "questionable" claim for directors' fees for a period of seventeen years. There is no evidence that she ever demanded payment (other than invoices) or actually commenced proceedings to recover the fees. The deregistration of Phoenix did not affect her claim because the Court should infer that she never pursued it and Phoenix was insolvent and therefore unable to meet the claim.
Similarly, Ms Randall's status as a former shareholder did not make her aggrieved by reason of Phoenix's deregistration because the company was hopelessly insolvent at the time at the time of that deregistration. It had failed to pay directors' fees (if they were due), failed to pay rent and was unable to meet the judgment in favour of the Council.
Insofar as Ms Randall suggests a surplus of assets if Phoenix was reinstated and certain events occurred, this depended on Phoenix succeeding in the cause of action which was substantially identical to that sought to be advanced by Ms Randall in these proceedings. The Council relied on its other submissions in relation to the bases of Ms Randall's claim to submit that just as Ms Randall's claim was hopeless, so for the same reasons would any similar claim brought by Phoenix.
The Council drew attention to the decision of Austin J in Australian Competition and Consumer Commission v Australian Securities Investment Commission [2000] NSWSC 316; (2000) 174 ALR 688, where his Honour said: 27 The wording of the section is very broad, and the cases confirm that it gives the Court a wide discretion. The Court takes into account the circumstances in which the company came to be dissolved; whether, if the order were made, good use could be made of it; and whether any person is likely to be prejudiced by the reinstatement: Re Kilkenny Engineering Pty Ltd (in liq) (1976) 1 ACLR 285; Drysdale v ASC (1992) 10 ACLC 1427; Re Steelmaster Pty Ltd (in liq) 91992) 6 ACSR 494. … 54 The reported cases say that the Court should consider whether good use can be made of the reinstatement. The Court will not make an order which is futile, and an order could well be futile if the reinstated company is left in liquidation without the funding necessary to permit the liquidator to do any work. In the Steelmaster case the Court addressed that problem by making an order for the applicant to pay the costs and disbursements of the liquidator incurred as a result of the reinstatement, including the cost of any further dissolution proceedings under s 509 of the Corporations Law. The order may have been made with the applicant's consent, but would in any case have been justified by s 601AH(3)(b).
The claim sought to be made by Phoenix vests in the liquidator. Neither Ms Randall nor Mr Agresta could fund the liquidator to bring the claim. Any claim by the liquidator would be met with an application for security for costs which could not be provided by Ms Randall or Mr Agresta. The company would therefore have no capacity to pursue any claims. Therefore to reinstate it would be futile.
Insofar as Ms Randall claims that she is a creditor of Phoenix, she is not aggrieved by Phoenix having been deregistered because she does not have a claim against the Council.
Insofar as Ms Randall sought the judgments referred to in paragraph [186] above the Council submitted that a claim for those judgments could not be asserted in these proceedings because Phoenix was not a party to these proceedings.

[26]

Miscellaneous - wrongful re-entry

Ms Randall submitted that, for the various reasons she had advanced which have been dealt with in other sections of these reasons, the termination of the Leases was invalid and Council wrongfully re-entered and took possession of Phoenix's fixtures.
Council submitted that, for the reasons which it had given in relation to Ms Randall's various submissions, its re-entry by taking possession of the relevant premises and fixtures was not contrary to law.
Council relied on clause 10 of the Leases: 10. REMOVAL OF FIXTURES (a) The Lessee will at the expiration of the term or any renewal thereof by effluxion of time peaceably surrender and yield up unto the Lessor without cost or compensation of any nature or kind the demised premises with the appurtenances together with all buildings, erections and fixtures now or hereafter to be built or erected thereon other than advertising structures erected by the Lessee in good and substantial repair and condition in all respects. The Lessee shall (unless otherwise mutually agreed by the Lessor and the Lessee) remove any advertising structures erected by it upon the land and in doing so shall make good any damage caused thereby. (b) The Lessee will on the determination of the said term or any renewal thereof before expiration of the said term or renewal thereof, peaceably surrender and yield up until the Lessor without cost or compensation of any nature or kind the demised premises with the appurtenances together with all buildings, erections and fixtures now or hereafter to be built or erected in good and substantial repair and condition in all respects. (c) Where the Lease is determined, the Lessor may require the Lessee at its cost upon the expiration or sooner determination of this Lease, demolish and remove from the demised premises all buildings, erections, fixtures and appurtenances constructed by it or on its behalf on or within the demised premises and restore the demised premises to reasonably the same condition as at the date of this Lease. All services to the demised premises in the nature of sewerage, water, gas and electricity shall be sealed and capped to the satisfaction of the relevant supplier or authority but otherwise the piping and conduiting of such services shall remain in place.
The Council submitted that clause 10 of the Leases drew a distinction between expiration and determination (i.e. termination) of the Leases. The Leases were determined (terminated) thereby enlivening the Council's rights under clauses 10(b) and (c) in favour of the Council. The Council had a contractual right upon termination of the Leases to title and ownership of the advertising signs (being fixtures) erected by Phoenix on its land.
Ms Randall has failed to demonstrate that there is any basis on which it could be said that the Council's re-entry and taking of possession was wrongful. The Councils' submissions to its right to the fixtures are correct.

[27]

Miscellaneous - the ANZ Loan to Phoenix

Ms Randall submitted that in May 2003 (by which time Phoenix was in default for non-payment of rent) the ANZ Bank approved a loan to Phoenix that was intended to provide it with funds to pay the outstanding rental to the Council. It was a condition of that loan that the Council provide its consent to Phoenix securing the Leases by entering into a deed with Phoenix and the ANZ Bank. Council declined to enter into such a deed. Ms Randall submitted that in failing to enter into the deed, the Council was in breach of clause 17(a) of the Leases which provided that "in any case where pursuant to these presents the doing or execution of any act matter or thing by the Lessee is dependent upon the consent or approval of the Lessor such consent or approval shall not be unreasonably withheld".
Council made three submissions, which the Court accepts as correct, to demonstrate why Ms Randall's reliance on this argument failed.
First, the claim had never been raised before White J or the Court of Appeal, notwithstanding that all the relevant facts must have been known to Phoenix through Mr Agresta and Ms Randall. Moreover, it was no part of any pleading or particulars in the present proceedings. This last point was sufficient for the Court to disregard this part of Ms Randall's claim.
Second, the only entity that could advance this claim was Phoenix. It was not and could not be suggested that there had been any misrepresentation to White J or the Court of Appeal about this claim.
Third, even if it were to be considered, the claim was bad in law. Clause 17(a) related to "where pursuant to these presents the doing or execution of any act matter or thing by the Lessee is dependent upon the consent or approval of the Lessor". There was no relevant "doing or execution of any act or thing by the Lessee" which the Leases (in either their original or amended form) made dependent upon the Council's consent. For example, the Leases were silent on what was to occur if Phoenix wanted to grant security over the Leases and the obligation to pay rent was certainly not dependent upon the Council consenting to anything. Similarly, entering into the deed did not fall into that category.

[28]

Miscellaneous - Phoenix's offer to buy the freehold

On 20 February 2003 (rental under the Leases having been due and payable on 1 February 2003) Phoenix wrote to Ms Rosser proposing to buy the freehold of the land on which the advertising structures were built "for an agreed amount on execution of documents" or to enter into a 21 year lease commencing at a rate of $20,600 per month. On 28 February 2003 the Council's solicitors wrote to Phoenix and responded to the proposals in its letter of 20 February 2003 by saying "your proposals therein are unacceptable to our client".
Ms Randall submitted that by the solicitors' letter Ms Rosser and thereby the Council fraudulently misrepresented to Phoenix that Phoenix's proposal was unacceptable to the Council. The basis of this allegation was that s 377(1)(h) of the LGA (relating to compulsory acquisition etc - see paragraph [130] above) required there to have been a decision of Council - which there had not been. Ms Rosser had gone off "on a frolic of her own" by instructing the Council's solicitors to reject Phoenix's proposal.
Like the previous issue, this matter is not pleaded or particularised in the present proceedings. That is a sufficient basis for the Court to disregard it and the Court does so. However, in any event, the argument is wrong.
The Court accepts the Council's submission that s 377 of the LGA does not require every decision to be considered by Council. Rather, it sets out what decisions Council can delegate and what it cannot.
The Court concludes that there was no obligation on Ms Rosser to submit Phoenix's proposal to a meeting of the Council. Refusal of the offer and instructing the solicitors to communicate that refusal was within Ms Rosser's delegation under clause E4K of the 2001 Delegation to "engage … legal counsel" and Clause E4U of the 2001 Delegation to "negotiate and settle matters in the best interests of the Council, taking legal advice as deemed necessary by the General Manager". Furthermore, there is no evidence that could support a serious finding such as fraud against Ms Rosser in relation to the rejection of Phoenix's offer.

[29]

Miscellaneous - the Council's conduct in the previous proceedings

Again, the matters Ms Randall raises under this heading are not pleaded or particularised in the present proceedings. That is a sufficient basis for the Court to disregard them and the Court does so. However, in any event, the matters raised do not assist Ms Randall's case.
Under this heading Ms Randall raises, as I understand it, two points. The first is a criticism that before both White J and the Court of Appeal the Council did not rely on any delegation of authority or purported ratification or call any person to support the Council's contention that it had validly terminated the Leases by the Termination Notice. The answer to this argument is that the Council did not have to. Unless and until something was raised by Phoenix, the Council discharged its onus of proof to establish the termination of the Leases by tendering the Termination Notice (recognising that it also had to prove - which it did - the basis upon which the Council said it was entitled to issue the Termination Notice). Phoenix did not raise any matter, for example by way of defence to the Council's cross‑claim, that would have required the Council to reply by putting the delegation or the ratification into evidence. Therefore, this criticism goes nowhere.
Ms Randall's second complaint is that the Council was in contempt of court for failing to produce documents in answer to a subpoena. The background is as follows.
On 13 December 2004, Phoenix's then solicitors issued a subpoena to the Council seeking, among other things, the following documents: 1. Copies of all documents evidencing the General Manager's delegated authority from: (a) Concord Council's governing body; (b) City of Canada Bay's governing body; to terminate the Leases entered into between Concord Council and Phoenix Commercial Enterprises Pty Limited, the subject of these proceedings. 2. Copies of all: (a) Reports; (b) Submissions; considered prior to 26 June 2003 and copies of all resolutions made prior to 26 June 2003 by: (i) Concord Council's governing body; (ii) City of Canada Bay's governing body; regarding delegating authority to the General Manager regarding the Leases entered into between Concord Council and Phoenix Commercial Enterprises Pty Limited, the subject of these proceedings. 3. Copies of all: (a) Reports; (b) Submissions; considered prior to 26 June 2003 and copies of all resolutions made prior to 26 June 2003 by: (i) Concord Council's governing body; (ii) City of Canada Bay's governing body; regarding terminating the Leases entered into between Concord Council and Phoenix Commercial Enterprises Pty Limited, the subject of these proceedings.
No documents were produced in answer to those paragraphs. The non-production in answer to paragraphs 2 and 3 is consistent with the evidence in these proceedings as to how Council dealt with the Leases, in particular with their termination. Ms Randall's complaint is more pointed in relation to the non-production in answer to paragraph 1 of the subpoena.
The subpoena was returnable on 8 February 2005. On 15 February 2005 Phoenix's then solicitors wrote to the Council's solicitors and noted that there had been no production in relation to paragraph 1 of the subpoena. Their letter goes on to say "we therefore take it that no documents exist evidencing the General Manager's delegated authority to terminate the relevant leases. Please confirm our assumption this regard is correct." Later in the same letter Phoenix's solicitors say: From our review of your client's evidence and documents produced by your client, it seems clear that your client did not issue delegated authority to the General Manager authorising her to terminate the relevant leases. Would you please confirm by return that in fact your client did not issue the relevant delegated authority.
Any reply to that letter from the Council's solicitors was not in evidence in these proceedings.
Ms Randall submits that the document that was in evidence in these proceedings comprising the 2001 Delegation should have been produced in answer to the subpoena. By not producing that document the Council was in contempt of court and, to quote Ms Randall's written submissions, "Council should not now be rewarded for its contempt of court".
The Council's written submissions dated 13 October 2014 respond to Ms Randall's submissions: 10. All allegations of any misconduct on the part of Council's representatives in the former proceeding are without foundation. 11. Council made strategic forensic choices. The allegations in relation to the conduct of Council are mischievous, without foundation and bear no relation to any pleaded issue in the proceedings.
Amid the plethora of issues that were raised before the Court in oral submissions, this particular complaint was not given much emphasis. A finding of contempt of court is a serious matter and should not be made, as it were, by a side wind in other proceedings as opposed to by the formalities of a separate motion containing a statement of charge. Were it necessary for the Court to come to a conclusion on this question, I would have relisted the matter for further, focused argument. No doubt the Council would have contended, and such a contention is clearly arguable, that in the context of the other paragraphs of the subpoena it had understood the documents that were sought by, for example, paragraph 1 to be confined to documents dealing with a specific delegation to the General Manager to terminate the Leases. So understood, Council's non-production is entirely consistent with the evidence in these proceedings that there was no specific delegation of an authority to terminate the Leases.
As it happens, it is not necessary for the Court to come to a final view on whether the Council failed to comply with the subpoena and whether such non-compliance constitutes a contempt of court. Approaching the matter very broadly, the issue in these proceedings is whether something happened in the conduct of the earlier proceedings which was the fault of the Council and which makes it unjust for the earlier judgments and orders to stand. Ms Randall's present complaint does not constitute such a ground. It may be tested in this way. There was no injustice done to Phoenix by reason of the non-production of the 2001 Delegation because if it had been produced and points taken that would have raised the issue of the validity of the Termination Notice, Ms Rosser's authority and the Council's ratification, then for the reasons given in paragraphs [170] to [180] above the outcome for Phoenix would have been no different. In other words, any challenge by Phoenix based on those matters would have failed. The non-production of the 2001 Delegation, (assuming, without deciding, that it was required to be produced in answer to the subpoena) would have made no difference and, therefore, that non-production has not resulted in any injustice that would entitle Ms Randall to the relief which she seeks in these proceedings.

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