CBS Leasing Pty Ltd v Imseis

Events leading up to entry into Agreement for Lease

1. The property at 280 Fifteenth Avenue, Austral ("the property") had the benefit of a development consent issued by Liverpool City Council ("the Council") in 2008 (DA1271/2008) for the construction of a childcare centre to cater for ninety children, and associated car parking and landscaping. The consent was to lapse on 23 December 2010 unless work physically commenced beforehand. By condition 57 of the development consent, a special infrastructure contribution in accordance with s 94EE of the Environmental Planning and Assessment Act 1979 (NSW) was required to be paid prior to the issue of any construction certificate in relation to the development. In August 2014, the special infrastructure contribution ("SIC") was assessed as an amount of $80,678.
2. On 5 February 2016, Mr Rustum Isaacs of CBS received certain information from the Council following an informal request for information made by Mr Isaacs on 3 February 2016. The Council officer determined that Mr Isaacs was entitled to access to two documents, one of which was described as "Unsigned Construction Certificate CCB-1030/2008". The attached document indicated that an application for a construction certificate (CCB-1030/2008) in respect of DA1271/2008 had been approved on 1 July 2014, but was not signed. In that regard, the covering email stated: In relation to an unsigned document held on any Council file, I confirm that unsigned documents including letters or consents can be provided to you. However, Council cannot guarantee that they are the same as the final version of a document issued by Council. The other document provided to Mr Isaacs was a construction certificate (W1052/02) that had been signed.
3. At about that time, Pham Property approached a real estate agent, Mr Douglas Lilley, about selling the property. Mr Lilley obtained instructions from Ms Thi Pham, the sole director of the company, and Mr Anthony Cannell. Mr Lilley was given information by either or both of them to the effect that "the DA was approved as was the Construction Certificate as long as the purchaser paid the SIC payment". Mr Lilley's advertising for the property included the following: $1,500,000 Situated at 280 Fifteenth Ave, Austral, our client is offering the freehold purchase of this site that has DA and CC approval for a 90 place childcare centre. Our client estimates building cost to be $1,500,000. These national childcare operators are in turn proposing to enter into a 20 year lease with a 10 year option at an initial rent of $270,000 p.a. plus GST and outgoings with 4% increases or CPI (whichever is higher) p.a. The lease is to commence within 2 weeks of the issuing of the OC with a 3 month rent free period.
4. Mr Lilley gave evidence that he advised each interested party that there was DA approval and a Construction Certificate approved, and the Construction Certificate would be released upon payment of the SIC. Mr Lilley recalls advising Mr Imseis to that effect. Mr Lilley's evidence was not challenged, and it is accepted.
5. Mr Imseis (who is also referred to as "Jacob") gave evidence to the effect that he saw an advertisement for the property on the "Lilley Childcare Sales" website in the terms of the advertisement set out above. He also gave evidence that he spoke to Mr Lilley who confirmed to him that his instructions were that "they have DA approval and CC approval" and that "a Construction Certificate is approved".
6. There followed a period in which some negotiations occurred, including in relation to the rent to be payable under the proposed lease. On 11 April 2016 Mr Imseis as Purchaser signed a Binding Memorandum of Agreement/Understanding the purpose of which was to state that the Purchaser wished to make an offer to purchase the property on the terms stated in the agreement. The agreement, which set out in a summary form the terms of a purchase and lease back transaction, was stated to be subject to the terms and conditions of a formal contract of sale which "will be signed within (7) seven days". The offer contained in the Binding Memorandum of Agreement/Understanding was accepted by Ms Pham on behalf of Pham Property by her execution of the document on 13 April 2016. In cross-examination, Mr Imseis said that before he signed the document he did not ask anyone to see any DA approved plans or CC approved plans.
7. At about that time, Mr Isaacs was again in communication with the Council. On 19 April 2016, Mr Duffy of the Council sent an email to Mr Isaacs stating that the Council was "satisfied that physical commencement has been achieved due to site works already undertaken". In response, Mr Isaacs sent an email to Mr Duffy on 19 April 2016 in the following terms: Just to confirm that the CC will be released once the SIC payment has been done. It is not clear what response, if any, was received by Mr Isaacs.
8. On 11 May 2016, following some further negotiations as to terms between the solicitors acting for the respective parties, a contract for sale in respect of the property was entered into by Pham Property as vendor and Ebrahim and Rima Imseis as purchaser. The purchase price was stated to be $1.435 million, with a 10% deposit. By Special Condition 2.3, completion of the contract was made conditional upon the parties entering into an Agreement for Lease in the terms of the agreement attached to the contract. The attached agreement was in fact stated to be between Ebrahim and Rima Imseis as Landlord and CBS as Tenant. It provided, inter alia, for the carrying out of certain Landlord's Works and Tenant's Works and then entry into a lease for a term of 15 years with an option to renew for a further 5 years, on the terms of an attached lease. Clause 3.2 of the Agreement for Lease contained an acknowledgement by the parties that the construction certificate for the Landlord's Works will be released "only once payment of any special infrastructure contribution has been paid by the Landlord".
9. Mr Imseis agreed in cross-examination that before signing the contract for sale he did not obtain advice from his solicitor about whether there was a DA or a construction certificate.
10. On 12 May 2016 Mr Thomas, a solicitor at Marsdens (the solicitors for Pham Property) sent an email to Mr Pickering, the solicitor for Ebrahim and Rima Imseis, which attached some emails "provided by my client in relation to confirming the current construction certificate is valid (therefore so is the DA)". The attached emails appear to include the emails received by Mr Isaacs from the Council on 5 February 2016 and 19 April 2016. Later on 12 May 2016, Mr Pickering sent an email to Mr Imseis which stated: Please find attached email from Marsden's and associated emails. The DA appears to be valid and of legal effect. I think all is ok.
11. On 13 May 2016 Mr Cannell sent an email to Mr Imseis in which he requested that, for taxation reasons, the "contract date" be pushed to 1 July 2016. Mr Imseis sent an email in reply later that day stating that he was happy to accept the request "re contract date/settlement". Mr Imseis also asked Mr Cannell to forward "Council approved plans" and "DA" so that the builder could look at them. The intended builder was Mr Imseis' brother-in-law, Mr Nabil Dabait. Mr Imseis expected that Mr Dabait could build the childcare centre relatively cheaply and give him a good deal.
12. Mr Cannell sent an email in response later on 13 May 2016 in which he stated that he would send as soon as possible "all the information we have plus the contact at Liverpool Council that has been dealing with the DA recently". Later that evening, Mr Cannell sent a number of documents to Mr Imseis including various plans and a copy of Construction Certificate W1052/02. Whilst that construction certificate may relate to the property, it concerns a development consent issued in 2002, not the 2008 development consent for the construction of the childcare centre. Mr Imseis deposed that he noticed this, and made some enquiries which led him to conclude that the construction certificate was for a shed on the site. Mr Imseis did not specify what enquiries he made.
13. On 23 May 2016 Ebrahim and Rima Imseis met with Ms Pham and Mr Cannell at a restaurant in Top Ryde. There is some dispute about what was said on this occasion, in particular as to whether Ms Pham said there was CC approval. Ultimately, this matter is of little moment. No questions were asked in cross-examination about the meeting.
14. On 31 May 2016 Mr Imseis sent an email to Mr Cannell in the following terms: It was a pleasure meeting you and Debbie [Ms Pham] last week The builder has ask [sic] me he wants the council stamped plans With your approval can he book demolition in 3 weeks time Later on 31 May 2016, Mr Cannell replied by email to Mr Imseis in the following terms: We had a great time with you both! Please go ahead and book the demolition and as far as the stamped plans go I think you need to just get them from Council once you pay them the CC fee. We will be happy to give you an authority letter if they ask you for one? I will get an update from Wade [Thomas] our lawyer as regards the new contract to be signed.
15. Mr Imseis promptly replied by email in the following terms: Witch [sic] Council fee is it the contribution amount payable or something different Mr Cannell replied in the following terms: Please check with Council but I think it is a levy.
16. On 9 June 2016 Mr Pickering sent a letter to Marsdens in which a complaint was made that his client had been misled about the construction certificate, believing "that all of the fees for issuance of the construction certificate had actually been paid and that the construction certificate had actually issued". Mr Pickering stated that it seemed that about $82,000 would need to be paid to obtain the release of the construction certificate, and reference was made to cl 3.2 of the Agreement for Lease. Mr Pickering, not having received a reply, sent a follow up letter on 15 June 2016.
17. On 20 June 2016 Marsdens sent a letter in response in the following terms: We refer to your letter of 9 June 2016. As you point out, the payment of any fees in relation to the Construction Certificate should be paid for by your client, as the Landlord, in accordance with Clause 3.2 of the Agreement for Lease. You [sic] client did not make any enquiry in relation to what those fees may be at the time of exchange of Contracts, so we can only assume that your client had made its own due diligence enquiries with respect to what those fees may be. Our client denies that it has engaged in any conduct which may have been misleading to your client. It appears that your client simply did not make its due diligence enquiries in respect to the Development Approval and Construction Certificate prior to exchange of Contracts. In that regard, our client relies on the terms of the existing Contract and Agreement for Lease entered into by the parties on 11 May 2016. If your client does not wish to proceed with the rescission on 1 July 2016, as anticipated, then our client relies on the provisions of the existing Contract and will move towards completion in that regard. We look forward to your urgent response.
18. On 27 June 2016 Mr Cannell provided an SIC payment slip to Mr Imseis to enable the SIC to be paid. Mr Cannell stated, in effect, that once the payment was made, the construction certificate could be released. On 30 June 2016 Mr Imseis paid the sum of $81,997.89 to Liverpool City Council for the SIC.
19. On 1 July 2016 Pham Property as vendor and Ebrahim and Rima Imseis as purchaser entered into a Deed of Rescission in respect of the contract for sale of 11 May 2016, and entered into another contract for sale of the property. The new contract was on substantially the same terms as the earlier contract, although the condition about entering into the Agreement for Lease was now contained in cl 2.1.
20. The attached Agreement for Lease was to be between Ebrahim and Rima Imseis as Landlord and CBS as Tenant. Clause 3 relevantly provides: 3 Landlord's Works 3.1 Landlord's Works The Landlord, at its cost, will procure the Landlord's Works are completed in accordance with this document. 3.2 Variations The parties acknowledge and agree that: (1) the Landlord must have regard to the design input and Tenant's requirements for the construction and finishes of the Premises; (2) the construction certificate for the Landlord's Works will be released by the Authority only once payment of any special infrastructure contribution has been paid by the Landlord; and (3) the Landlord must consult with and have regard to the input of the Tenant in respect of all external landscaping of the Premises prior to undertaking the Landlord's Works; and 3.3 Timing (1) The Landlord must ensure that the Landlord's Works reach Practical Completion by the Landlord's Works Completion Date. (2) If the Landlord's Works have not reached Practical Completion by the Landlord's Works Sunset Date, then the Tenant may terminate this document by notice in writing to the Landlord. (3) In the event that the Tenant terminates this agreement in accordance with paragraph (1), the Landlord must pay to the Tenant as a liquidated debt within twenty (28) [sic] days of the date of termination, the amount incurred by the Tenant in complying with the provisions of this agreement up to and including the date of termination. 3.4 Standard of works The Landlord will carry out the Landlord's Works: (1) in accordance with all applicable Laws and the requirements of any relevant Authority; (2) in a proper and workmanlike manner; and (3) in a prompt and timely fashion. 3.5 Termination (1) If the Landlord fails to obtain an occupation certificate in accordance with clause 4.5 by the Landlord's Works Sunset Date, the Tenant may terminate this document by notice in writing to the Landlord. (2) In the event that the Tenant terminates this agreement in accordance with paragraph (1), the Landlord must pay to the Tenant as a liquidated debt within twenty (28) [sic] days of the date of termination, the amount incurred by the Tenant in complying with the provisions of this agreement up to and including the date of termination. Landlord's Works is defined to mean those works required to be carried out in order to constitute the Premises to [sic] an enclosed tenancy to [sic] a turnkey childcare facility as depicted in the attached plans at Annexure 1, including certain specific matters such as "telecommunications (intercom handsets) cabling and outlets". Practical Completion is defined to mean: …that the Landlord's Works have been completed in accordance with this document such that they do not contain any material defect which adversely affects the conduct of the Tenant's Works for the use of the Premises for the Permitted Use under the Lease. (The Permitted Use under the attached lease was stated to be "Childcare Centre".) Landlord's Works Completion Date is defined, by reference to Schedule 2, as 18 months from the date of the Agreement for Lease. Landlord's Works Sunset Date is defined, by reference to Schedule 2, as 21 months from the date of the Agreement for Lease. The plans contained in Annexure 1 essentially consisted of various drawings prepared by Plan D Architects that were noted as "Issue for Preliminary Tender".
21. Clause 4 of the Agreement for Lease relevantly provides: 4.1 Access prior to handover (1) If any part or parts of the Tenant's Works are required to be carried out before Practical Completion, the Landlord will allow the Tenant's Contractors access to that part of the Land reasonably required for the purpose of conducting those parts of the Tenant's Works. (2) The Tenant must ensure that the Tenant's Contractors comply with any direction of the Landlord or the Landlord's contractors, agents or representatives (including in relation to work health and safety) in the conduct of any works under paragraph (1). 4.2 Handover The Landlord will provide the Tenant with no less than six (6) weeks notice of the date on which it anticipates that the Landlord's Works will reach Practical Completion (Handover Notice). 4.3 Practical Completion (1) Within ten (10) Business Days before the date specified in the Handover Notice as the anticipated date of Practical Completion, the Landlord and the Tenant must jointly inspect the Premises. (2) Unless the Tenant determines (acting reasonably) that there are defects or works remaining to be carried out in relation to the Landlord's Works which would unreasonably hinder the Tenant in carrying out the Tenant's Works, the Landlord must issue a certificate that the Landlord's Works have reached Practical Completion. (3) If the Tenant determines (acting reasonably) that there are defects or works remaining to be carried out in relation to the Landlord's Works which would hinder the Tenant in carrying out the Tenant's Works: (a) the Tenant must give the Landlord a list of the defects or works (Outstanding Works); and (b) the Landlord must complete the Outstanding Works as soon as reasonably practicable and in any event no later than fourteen (14) days. (4) When the Landlord considers the Outstanding Works are complete, the Landlord must notify the Tenant and the procedure in paragraphs (1) to (3) (inclusive) repeats until Practical Completion of the Landlord's Works occurs. (5) The Tenant may elect to accept handover of the Premises prior to Practical Completion of the Landlord's Works but if it does so the Tenant must provide the Landlord and its contractors with access to the Premises to complete the Landlord's Works. (6) If the parties are unable to agree on the extent of the Outstanding Works, the parties must submit the dispute to an expert nominated by the President of at the time of the Institute of Arbitrators and Mediators Australia who must determine the expert on the basis of the type of dispute and nature and expertise necessary to resolve the dispute. 4.4 Handover Subject to clause 4.3(5), the Landlord will handover the Premises to the Tenant so as to allow the Tenant to conduct the Tenant's Works as [sic] the day following the date on which the Landlord's Works have reached Practical Completion (Handover Date). 4.5 Occupation Certificate (1) The Landlord must obtain a final occupation certificate in accordance with section 109C(1) of the Environmental Planning and Assessment Act 1979 (NSW) and serve a copy on the Tenant as soon as reasonably possibly [sic] after Practical Completion and in any event no later than the Landlord's Works Sunset Date. (2) In addition to the provision of the final occupation certificate in accordance with paragraph (1), the Landlord must provide all documentation required by the Tenant in order to obtain any necessary approvals to conduct the Permitted Use from the Premises. 4.6 Damages If the date of Handover does not occur on or before the Landlord's Works Completion Date, the Tenant may request from the Landlord and the Landlord must pay or allow an amount that the parties agree shall be equal to one (1) days Annual Rent under the Lease for every day that Handover is delayed, calculated from the Landlord's Works Completion Date to the date of actual Handover.
22. Clause 5 of the Agreement for Lease provides: 5.1 Construction The Tenant, at its cost, must cause the Tenant's Works to be carried out: (1) in accordance with the Tenant's requirements; and (2) in a proper and workmanlike manner. 5.2 Time for completion The Tenant must use its best endeavours to commence: (1) the Tenant's Works as soon as possible after the Handover Date; and (2) trade as soon as reasonably practicable after the Handover Date and completion of the Tenant's Works. Tenant's Works is defined to mean: All works to be performed by the Tenant in order to fit out the Premises in accordance with the terms of this document (being provision of loose furniture and equipment required for service approval of a childcare facility) but excluding the Landlord's Works.
23. Clause 7 of the Agreement for Lease provides: 7.1 Grant of lease The Landlord agrees to grant, and the Tenant agrees to accept the grant of, the Lease on the terms set out in this document. 7.2 Lease Commencement Date The Lease commences on the Lease Commencement Date and the Landlord and Tenant are bound by the Lease from that date. 7.3 Execution of Lease On or before the date of this document, the Tenant must: (1) execute two (2) copies of the Lease; and (2) deliver the Leases referred to in paragraph (1) to the Landlord's solicitor to be held by in escrow pending the Lease Commencement Date. 7.4 Stamping and registration The Landlord must: (1) if applicable, lodge the Lease for stamping; and (2) register the Lease at the Land and Property Information Office of New South Wales and promptly following registration, deliver to the Tenant a copy of that registered Lease. Lease is defined as the lease attached as Annexure 2. It provided for a 15 year term with an option for a further term of 5 years. Lease Commencement Date is defined, by reference to Schedule 2, as the date that is 8 weeks from when the Landlord complies with cl 4.5 in full.
24. On 15 July 2016 the contract for sale was completed, and the Agreement for Lease was entered into. Accordingly, the Landlord's Works Completion Date became 15 January 2018, and the Landlord's Works Sunset Date became 15 April 2018.

Obtaining the construction certificate and commencing works

1. The construction certificate for the construction of the childcare centre (CCB-1030/2008) was not issued until 15 February 2017, some 7 months after the Agreement for Lease was entered into. Payment of the SIC was not all that was required in order for the certificate to issue. On 3 August 2016 Mr Duffy of the Council sent an email to Mr Imseis in the following terms: A preliminary assessment of your application has been undertaken and the following items require your attention: Engineering plans are to be submitted Details of the acoustic barriers are to be submitted Building Specification to be submitted Section 73 Certificate to be submitted Written clearance from Energy and telecommunications providers are to be submitted Provide documentation to satisfy the requirements of Planning for Bushfire Protection 2006 and AS3959
2. On 5 August 2016 Mr Imseis was informed by the Council that a concept plan would also need to be provided.
3. Mr Cannell instructed Mr Isaacs to assist Mr Imseis with the process of obtaining the construction certificate. It appears from an email sent to Mr Imseis on 5 August 2016 that Mr Isaacs was at least initially of the view that the various documents should have been lodged "prior to the CC approval and the CC has been approved and is pending release after receipt of the SIC payment". However, that view seems not to have been correct. The Council required numerous matters to be attended to before it would issue the construction certificate.
4. Mr Imseis deposed in his first affidavit to the steps taken to obtain the release of the construction certificate. It seems that the final requirement to be satisfied was provision of a flood evacuation plan. This was submitted on 15 February 2017. It is not clear when this was requested by the Council. Mr Imseis said that it was not requested until 9 February 2017. That may be correct, as it does not seem to be referred to in the earlier communications from Council that set out their requirements.
5. The construction certificate identified the approved plans as including the architectural plans of Plan D Architects dated April 2016 drawing numbers TD-000 to TD-004, TD-101, TD-102 and TD-103, and Plan D Architects landscape plans L/01 and L/02 dated 4 May 2016. Those plans had been prepared when the architects had been retained by Pham Property. Ebrahim and Rima Imseis retained Plan D Architects at some stage later in 2016. Mr Imseis says that this was done on Mr Isaacs' recommendation. It is apparent from emails sent by Plan D Architects in November and December 2016 that they were by that time working on the preparation of drawings for construction, and that Mr Isaacs remained involved. I note that under the Agreement for Lease, Ebrahim and Rima Imseis were required to have regard to the input of CBS in relation to the construction and finishes of the premises, and also the landscaping.
6. Preliminary construction drawings were issued by the architects for Mr Isaacs' review on 22 December 2016. It appears that on 13 March 2017 Mr Isaacs was indicating that the plans were approved, subject to the addition of three matters. A final set of construction drawings appears to have been provided by Plan D Architects to Mr Imseis on 3 April 2017. Construction works commenced on about 17 April 2017.
7. In relation to landscaping, Mr Imseis deposed that he left all of the design and layout of the external playground areas to Mr Isaacs and the landscape architect (Mr Shaun Wright of A Total Concept). On 27 July 2017 Mr Isaacs sent an email to Mr Wright stating that he was happy with the design and layout, and requesting that detailed construction drawings be issued for "final review". It appears that Mr Isaacs received plans from Mr Wright on 15 September 2017, and on 18 September 2017 Mr Isaacs approved the plans to go to tender.
8. The evidence suggests that in about July 2017 works had proceeded to the point of laying the main concrete slab. By December 2017 timber framework for the building had been completed.

Progress of the works

1. Under the terms of the Agreement for Lease, the Landlord's Works were due to be completed by 15 January 2018. Further, if those works were not completed by 15 April 2018 (the Landlord's Works Sunset Date), CBS would have the right to rescind the Agreement for Lease (see cl 3.3).
2. There is evidence that the project had halted in March 2018 at the request of the Council. This seems to be related to the fact that some required inspections of works were missed. The Council required certain information to be provided (including engineer's certificates), presumably before allowing work to resume.
3. It appears that the project suffered delays for other reasons as well. Mr Pickering, in a letter sent to Marsdens on 4 April 2018, referred to the delay in obtaining the construction certificate, bad weather, and gaining access to neighbouring properties to complete some aspects of the work. Mr Pickering's letter also included the following: I note that part of the settlement of this matter involved our client entering into an 'Agreement to Lease' with CBS Leasing Pty Ltd. The 'Agreement to Lease' gave our client a period of 21 months after the date it was executed to construct a child care centre. Once the child care centre was built and approved by your client, then our client and CBS Leasing Pty Ltd would enter into a lease to operate the child care centre for our client. Please find enclosed a copy of the 'Agreement to Lease'. The Agreement was executed on 15 July 2016 and the sunset date for construction expires on 15 April 2018. … In light of the information above, please kindly seek your client's urgent instructions and confirm whether they would agree to extend the construction sunset date by 4 months to 15 August 2018.
4. On the following day, Marsdens informed Mr Pickering that their client "agrees to the extension to 15 August 2018".
5. In May 2018 the defendants were in discussions with a neighbouring owner about the placement of some sewer pipes under his land. An agreement appears to have been reached with the neighbouring owner in early June 2018. By that time, the construction of the childcare centre was approaching completion. The main item outstanding was the construction of the sewer.
6. In June 2018 the defendants allowed CBS into "occupation" of the childcare centre. The legal characterisation of this event is of some importance to the resolution of the case.
7. According to Mr Imseis, CBS "took possession" of the childcare centre in June 2018 through Mr Isaacs and Ms Antonella Pirri (CBS' Operations Manager). Mr Imseis gave evidence that CBS had moved into the premises and was setting up equipment and furniture. This evidence was supported by a number of photographs, and parts of a video, taken by Mr Imseis in June 2018.
8. According to Ms Pham, the defendants provided "initial access" to the property in June 2018. She pointed out that the defendants were still completing works and "critically the sewer had not been connected which meant no toilet or drainage could be used". Mr Ball, who took over Mr Isaacs' role in relation to the project when Mr Isaacs left in July 2018, denied that CBS had taken possession of the property or any part of it in June 2018. He accepted, however, that construction had reached a stage which permitted CBS to start installing equipment, furniture, educational items and toys, although the defendants were still doing some work to complete the final fit-out such as completing cupboards and joinery. Mr Ball also referred to the lack of working toilet facilities. Mr Ball agreed in cross-examination that from around June 2018, apart from the works concerning the sewer (and a few issues with power points and light fittings), the construction of the childcare centre was "largely complete".
9. It appears that keys for the childcare centre were provided to CBS. Although Ms Pham had no recollection of CBS receiving keys, Mr Ball agreed they had been provided around June 2018. It further appears that the defendants retained a set of keys from June 2018 for their own purposes.
10. On 18 July 2018 Ms Pirri provided a list of items to the defendants that "require completion". The list is in the nature of a defects list. There are numerous items on the list (26 in total), but they appear to be relatively minor issues. On 25 July 2018 an email in response was sent to Ms Pirri stating that "most of the things have been done" and some were "pending". On the following day, Ms Pirri sent an email stating that in fact some of the matters said to have been done had not been completed.
11. Another email sent by Ms Pirri on 12 December 2018 indicates that there were still six of the items or defects that required attention.
12. The sewer works were completed in about December 2018. A compliance certificate under s 73 of the Sydney Water Act 1994 (NSW) was issued on 7 January 2019.
13. On 10 January 2019 the Council issued a Building Information Certificate (BC-126/2018) in respect of the building works under Division 6.7 of the Environmental Planning and Assessment Act. The issuing of the certificate followed an inspection that occurred on 6 December 2018. I note that the Council had earlier made it known to the defendants that it would not be in a position to issue an Occupation Certificate due, at least in part, to the missed inspections.
14. The Building Information Certificate was provided to CBS on 10 January 2019.
15. Later on 10 January 2019, Ms Pirri sent an email to Mr Imseis in the following terms: Thank you for your message regarding receiving OC, that's exciting. Can you please provide us with the required documents for Service Approval? All OC certificates Softfall Drop test Softfall Certificate Shade Sale - umbrella Certificate Full Construction Plans that include and show the unencumbered Areas Ms Pirri sent another email shortly thereafter in relation to the requirements for the construction plans.
16. Ms Pirri resigned from her employment on about 24 January 2019. It seems that Mr Ball assumed the role Ms Pirri had in relation to the project which, by that time, was directed to obtaining the necessary approvals for operating a childcare centre at the property.
17. Relevantly, two issues emerged between the parties in the course of the approval process. These were, first, appropriate access to and egress from the centre; and second, the installation of telephones. Ms Pham gave evidence to the effect that these matters needed to be resolved in order to obtain a service approval from the Department of Education and Community Services (known as "DECS").
18. CBS complains that due to deficiencies in the works carried out by the defendants, it was necessary to construct a second access ramp, and install a mobile data service, all at its own cost. CBS says that these matters were not completed until about the beginning of April 2019. It appears that the application for service approval was lodged on about 1 April 2019. The DECS inspection occurred on 23 May 2019. The service approval was granted on 28 May 2019, and the childcare centre opened for business in early June 2019. As mentioned earlier, CBS commenced paying rent in accordance with the lease from 7 June 2019.
19. The defendants say that the centre was built in accordance with the plans, and these showed only one access ramp. The defendants further say that they provided all the required communications cabling, and it was up to CBS to engage a service provider.

CBS' claim for damages

1. The primary claim is for liquidated damages pursuant to cl 4.6 of the Agreement for Lease. Clause 4.6 provides: If the date of Handover does not occur on or before the Landlord's Works Completion Date, the Tenant may request from the Landlord and the Landlord must pay or allow an amount that the parties agree shall be equal to one (1) days Annual Rent under the Lease for every day that Handover is delayed, calculated from the Landlord's Works Completion Date to the date of actual Handover.
2. Clause 4.6 provides for the payment (or allowance) of a liquidated sum upon the happening of certain events. It is immediately apparent that the calculation of any damages under cl 4.6 depends upon the concepts of Landlord's Works Completion Date and the date of Handover (or the date of actual Handover). Damages are payable to the extent that Handover is delayed beyond the Landlord's Works Completion Date. Under the agreement, the Landlord is obliged to bring the Landlord's Works to Practical Completion by that date (see cl 3.3), and it is envisaged that Handover will occur no later than about that date (see cl 4.4, which is expressed to be subject to cl 4.3(5)).
3. CBS submitted that the Landlord's Works Completion Date is 15 January 2018, and that the date of Handover was not until 29 May 2019 (the day after the service approval was obtained). That is a period of 499 days. On that basis, and adopting $739.73 as the amount of one day of Annual Rent, damages of $369,125.27 (plus GST) is claimed.
4. The defendants submitted that no damages were payable under cl 4.6. It was submitted that on 5 April 2018 the Landlord's Works Completion Date was agreed to be extended to 15 August 2018, and the date of Handover occurred in June 2018 when the defendants allowed CBS into possession. Reference was made to cl 4.3(5) which provides that the Tenant may elect to accept Handover of the premises prior to Practical Completion.
5. I do not agree that the Landlord's Works Completion Date was extended to 15 August 2018. Mr Pickering's letter of 4 April 2018 should in my view be construed as a request for an extension of the Landlord's Works Sunset Date, not the Landlord's Works Completion Date. The language of the letter is in some respects imprecise but it includes no reference in terms to the Landlord's Works Completion Date (which had already passed on 15 January 2018), or to the 18 month period by which that date is derived under the terms of the Agreement for Lease. There is, rather, a reference to a period of 21 months. Whilst the letter, perhaps inaccurately, refers to that period as a period within which "to construct a childcare centre", I do not think that it would be reasonably understood as a reference to the Landlord's Works Completion Date. In addition, the letter goes on to refer to "the sunset date for construction" that expires on 15 April 2018. That must be taken to be a reference to the Landlord's Works Sunset Date. After referring to delays experienced by the defendants in constructing the childcare centre, the letter then contains an urgent request to an agreement to extend the "construction sunset date" by 4 months to 15 August 2018. In my view, a recipient of the letter in the position of CBS would reasonably understand that to be a reference to the Landlord's Works Sunset Date. Accordingly, the defendants should be taken to have requested only an extension of the Landlord's Works Sunset Date, and the plaintiff should be taken to have agreed only to extend the Landlord's Works Sunset Date.
6. It is true that there is a relationship between the 18 month period for the Landlord's Works Completion Date and the 21 month period for the Landlord's Works Sunset Date. However, it does not necessarily follow that an extension of the Landlord's Works Sunset Date means that there must be a commensurate extension of the Landlord's Works Completion Date. Each concept has its own work to do under the Agreement for Lease, and the passing of the Landlord's Works Completion Date was already of significance for the purposes of cl 4.6. In my opinion, the Landlord's Works Completion Date was, and remained, 15 January 2018.
7. It is next necessary to consider the date of Handover.
8. Clause 4 of the Agreement for Lease contains reasonably detailed provisions in relation to the concept of Handover. Viewed broadly, cl 4 reveals that Handover is envisaged to occur on about the date the Landlord's Works reach Practical Completion (see cl 4.4), or perhaps earlier if acceptable to the Tenant (see cl 4.3(5)).
9. Practical Completion is defined to mean: …that the Landlord's Works have been completed in accordance with this document such that they do not contain any material defect which adversely affects the conduct of the Tenant's Works for the use of the Premises for the Permitted Use under the Lease. The concept is thus concerned with a state of completion that is consistent with or at least does not adversely affect or hinder the conduct of the Tenant's Works. Tenant's Works is defined to mean: All works to be performed by the Tenant in order to fit out the Premises in accordance with the terms of this document (being provision of loose furniture and equipment required for service approval of a childcare facility) but excluding the Landlord's Works.
10. The regime as envisaged by cll 4.2 and 4.3 does not appear to have been invoked. No formal Handover Notice was given by the defendants in accordance with cl 4.2 (and cl 10.1). No joint inspection seems to have occurred in accordance with cl 4.3(1). CBS was nonetheless given access to the premises on about 5 June 2018 (the date Mr Imseis took his video) to enable it to commence its fit-out. It is clear on the evidence that CBS thereupon started to install its furniture and other equipment required for the operation of a childcare centre. Moreover, the evidence does not suggest that the state of completion in June 2018 was such that the undertaking of the Tenant's Works was hindered or adversely affected in some way. It is true that the outstanding sewer works meant that, in layperson's terms, the Landlord's Works could not be said to be practically complete, but the particular definition of Practical Completion in this Agreement for Lease permits something less. In any case, the pertinent question for present purposes is whether (and if so, when) Handover occurred. As already noted, Handover can occur prior to Practical Completion.
11. Considering the evidence overall, it is my opinion that despite the lack of contractual formality, by commencing its fit-out of the premises, and receiving a set of keys for the premises, CBS should be taken to have accepted Handover of the premises on about 5 June 2018 (whether or not Practical Completion as defined had by then occurred). I should add that it was not shown that some part or parts of the Tenant's Works were required to be carried out before Practical Completion, such that the access afforded to CBS was access prior to Handover of the kind envisaged by cl 4.1.
12. On this basis, CBS would be entitled to liquidated damages under cl 4.6 of the Agreement for Lease calculated from 15 January 2018 to 5 June 2018. That is 142 days. Adopting $739.73 as the amount of one day of Annual Rent, the damages would be $105,041.66.
13. The defendants contend that they did not cause the delay, which they say flowed from the delay in obtaining the Construction Certificate. That is not to the point in circumstances where the parties agreed in cl 4.6 that damages are payable in certain events. It was not suggested that CBS was in breach of the Agreement for Lease such that it could not rely upon cl 4.6.
14. CBS also claims damages from the defendants on the basis that their failures to construct a second access ramp, and install telephones, amounted to breaches of the obligation to carry out the Landlord's Works (see Statement of Claim paragraphs 9 and 17). CBS adduced evidence to show that as a consequence of these failures it arranged for a second access ramp and associated fencing to be constructed at a total cost of $8,600, and a mobile data service to be installed. No evidence was adduced of the cost of the mobile data service.
15. I am not satisfied that the failure to construct the second access ramp was a breach of the obligation to carry out the Landlord's Works. It does appear that, as a practical matter, the second access ramp was required in order for the necessary service approval for the childcare centre to be obtained in 2019. It is also true that the definition of Landlord's Works refers to "a turnkey childcare facility". However, the definition also states that the facility is to be "as depicted in the attached plans at Annexure 1". Those plans (and the later "for construction" plans) did not include a second access ramp.
16. In my opinion, the obligation to complete the Landlord's Works did not require the defendants to construct the second access ramp. The detailed content of the obligation should be regarded as deriving from the attached plans, and the later plans that would be approved for construction. That is what reasonable business persons in the positions of the parties would have understood. (For what it is worth, I note that Ms Pham stated in cross-examination that she expected the childcare centre to be built "to the CC plans".) This conclusion is reinforced by the fact that the plans attached to the agreement were prepared on the instructions of the plaintiff, and by the circumstance that it was evidently contemplated that the defendants would have regard to the input of the plaintiff in relation to the construction and finishes of the premises (see cl 3.2).
17. In relation to the installation of telephones, the definition of Landlord's Works includes "telecommunications (intercom handsets) cabling and outlets". A note to the drawings attached to the agreement refers to "at least 2 telephones in the centre for contacting any emergency services needed". The evidence shows that some cabling (and I infer outlets) were installed by the defendants but it seems that no telephones were provided. It must be said that the evidence is rather unclear as to the detail of what was provided. However, having regard to the unchallenged evidence given by Mr Imseis to the effect that Ms Pirri told him not to worry about the internet and telephone carrier, and the fact that Ms Pirri sent a message to Mr Imseis on 11 January 2019 to the effect that "Chris" (an employee of the plaintiff) is "arranging internet", I am not satisfied that any breach has been established in this regard. In any event, CBS adduced no evidence of what it spent to install the mobile data service.
18. Accordingly, I do not think that CBS is entitled to any damages apart from the amount of $105,041.66 that is payable pursuant to cl 4.6.

CBS' claim for specific performance

1. CBS seeks orders in the nature of specific performance to compel the defendants to grant the lease in accordance with the provisions of the Agreement for Lease. The only matter in dispute here concerns the Commencement Date of the lease.
2. Lease Commencement Date is defined as the date that is 8 weeks from when the Landlord complies with cl 4.5 in full. Clause 4.5 provides: (1) The Landlord must obtain a final occupation certificate in accordance with section 109C(1) of the Environmental Planning and Assessment Act 1979 (NSW) and serve a copy on the Tenant as soon as reasonably possibly [sic] after Practical Completion and in any event no later than the Landlord's Works Sunset Date. (2) In addition to the provision of the final occupation certificate in accordance with paragraph (1), the Landlord must provide all documentation required by the Tenant in order to obtain any necessary approvals to conduct the Permitted Use from the Premises.
3. CBS contends that the Lease Commencement Date should be 22 June 2019 (i.e. 8 weeks from 27 April 2019). This is based on the fact that on 27 April 2019 the defendants provided certain updated plans to CBS for the purpose of the application for service approval.
4. The defendants contend that the Lease Commencement Date should be 7 March 2019 (i.e. 8 weeks from 10 January 2019). This is based on the fact that on 10 January 2019 the defendants provided the Building Information Certificate to CBS.
5. In my opinion, the contentions of CBS on this issue should be accepted. Even if the assumption is made in favour of the defendants that provision of the Building Information Certificate was equivalent to performance of the obligation under cl 4.5(1), the defendants would not thereby have complied with cl 4.5 "in full". Mr Imseis accepted in cross-examination that on 24 April 2019 CBS requested updated plans, and that the plans were provided on 27 April 2019. I accept that these plans were required by CBS in order to obtain the service approval. In these circumstances it cannot be said that the defendants had complied with cl 4.5 in full prior to 27 April 2019.
6. That date should be accepted as the date when the defendants complied with cl 4.5 in full. Despite receiving only a Building Information Certificate on 10 January 2019, not an Occupation Certificate as required under cl 4.5, and despite having a right to terminate pursuant to cl 3.5, CBS thereafter remained in occupation and required the defendants to perform their obligations under the Agreement for Lease. Clause 4.5(1) should be taken to be satisfied in those circumstances. There is no evidence of any documentation being required by CBS after 27 April 2019 in order to obtain the service approval, so cl 4.5(2) should be taken to have been satisfied on that date. In my view, the defendants had by 27 April 2019 fully complied with their obligations under cl 4.5. Accordingly, the Lease Commencement Date is 22 June 2019.
7. Orders in the nature of specific performance should be made to require the execution of a lease, in accordance with the terms of the Agreement for Lease, with a Commencement Date of 22 June 2019.

Cross-Claim against Pham Property

1. I turn now to the Cross-Claim of Ebrahim and Rima Imseis against Pham Property. The claim is for damages pursuant to s 236 of the Australian Consumer Law. The pleaded case may be summarised as follows: 1. Pham Property represented to Ebrahim and Rima Imseis that the property at 280 Fifteenth Avenue, Austral was both DA and Construction Certificate approved; 2. Ebrahim and Rima Imseis, in reliance upon the representation, entered into a contract to purchase the property on 1 July 2016, and entered into an Agreement for Lease with CBS on 15 July 2016; 3. the representation was false and made in contravention of ss 18 and 30 of the Australian Consumer Law in circumstances where Liverpool City Council, despite payment of the SIC of $81,897.89, did not release the relevant Construction Certificate and required further information to be provided; and 4. as a result of the contravening conduct, Ebrahim and Rima Imseis suffered loss or damage by having to pay additional amounts to comply with the Council's requirements in relation to the Construction Certificate, and by not earning rental income for a period due to the delay in the issuing of the Construction Certificate.
2. There is no doubt that in early 2016 Pham Property, through the advertising and statements of its agent Mr Lilley, made representations that the property had DA and CC approval for a 90 place childcare centre, and that "a Construction Certificate is approved". The reference in the advertisements to "CC" would reasonably be taken to mean Construction Certificate.
3. It can be said that there was at that time an approved Development Application in the sense that Development Application No 1271/2008 had been approved by Liverpool City Council in December 2008, and notice of the determination of the application had been given in accordance with s 81(1) of the Environmental Planning and Assessment Act. Whilst the notice states that the consent would lapse on 23 December 2010 "unless physically commenced", it appears from the email sent on 19 April 2016 by Mr Duffy of the Council to Mr Isaacs that the Council was satisfied that physical commencement had occurred.
4. However, no Construction Certificate in relation to the development had issued. It appears from the information sent by the Council to Mr Isaacs on 5 February 2016 that the Council held on its file an unsigned Construction Certificate (CCB-1030/2008) in respect of the development. The document was provided to Mr Isaacs. The document is dated 1 July 2014. It takes the form of a notice pursuant to s 81A(5) of the Environmental Planning and Assessment Act of a determination made by the Council. Adjacent to the word "Determination", the word "Approved" appears. Nevertheless, in the absence of a signature, it could not be treated as a formal notice that approval had been given for the issue of a Construction Certificate. (I note in passing that the intended signatory was Mr Duffy.) The covering email drew attention to the fact that Construction Certificate CCB-1030/2008 was unsigned and further stated, in relation to unsigned documents generally, that the Council "cannot guarantee that they are the same as the final version of a document issued by Council".
5. There is no evidence that any Construction Certificate in relation to the development was actually issued prior to 15 February 2017, and there is no evidence that prior to that time a determination was actually made by the Council to approve the issue of a Construction Certificate in relation to the development. There is evidence that Mr Isaacs was in contact with Mr Duffy in about mid-April 2016, and it appears there may have been some discussion about whether the Construction Certificate would be released once the SIC payment had been made. The detail of any such discussion remains obscure. The email sent by Mr Isaacs to Mr Duffy on 19 April 2016 seems to be seeking confirmation that the Construction Certificate would be released once the SIC payment was made, but there is no evidence of any response from Mr Duffy. Neither Mr Isaacs nor Mr Duffy was called to give evidence. It should be noted, however, that in August 2016, after the SIC payment had been made, Mr Duffy was evidently unwilling to have a Construction Certificate issued unless a number of matters were first attended to. This evidence suggests that Mr Duffy is unlikely to have given a clear assurance in April or May 2016 that the Construction Certificate would be released once the SIC payment was made.
6. In my opinion, viewed objectively in the totality of the circumstances in which they were made, the making of the statements in early-2016 to the effect that there is "CC approval", and that a "Construction Certificate is approved", amounts to conduct that is misleading or deceptive or likely to mislead or deceive. The statements were in the nature of statements of fact about the existence of an approved Construction Certificate, not statements of opinion or belief as to that matter (see Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 at [32]; Ireland v WG Riverview Pty Ltd (2019) 101 NSWLR 658; [2019] NSWCA 307 at [17]). The statements were not qualified. It was not suggested that the information was derived from another source and was being passed on for what it was worth. At the times the statements were made, the circumstances that pertained in relation to the Construction Certificate for the development, as described above, were not such as to warrant any unqualified statement to the effect that approval had been given for a Construction Certificate in relation to the development of the property. No Construction Certificate had in fact been issued, and there was at least some doubt about whether any, and if so, what, approval may have been given by the Council in respect of a Construction Certificate. The statements made were apt to convey a false or inaccurate picture of the position in relation to the Construction Certificate.
7. The conduct in making the statements can be attributed to Pham Property because they were made by its agent, Mr Lilley. I stress that no criticism is made of Mr Lilley, as the statements he made accorded with the instructions he had received from Pham Property. There is no doubt that the conduct occurred in trade or commerce. The making of the statements amounted to conduct in contravention of s 18 of the Australian Consumer Law.
8. Further, as the statements were made in connection with the sale or possible sale of the property, and can be considered to be false or misleading representations concerning the characteristics of the land, the making of the statements also amount to conduct in contravention of s 30(1)(e) of the Australian Consumer Law.
9. It is next necessary to consider whether Ebrahim or Rima Imseis have suffered loss or damage because of that conduct within the meaning of s 236 of the Australian Consumer Law.
10. It is at this point that the claim becomes problematic. In particular, the evidence going to causation of loss is problematic.
11. Mr Imseis deposed that he was always of the clear understanding that the property was sold with Construction Certificate approval. He said he relied upon the representations made to him by the agent (that the property was sold based on DA and CC approval) and there was nothing in the contract that suggested otherwise. In the witness box, he gave evidence that the property was bought on the basis that it was DA and CC approved. He said that when he entered into the first contract for sale he thought that if he paid the SIC he would get the Construction Certificate. Mr Imseis denied that as at 11 May 2016 he had doubts as to whether the Construction Certificate he was led to believe existed was valid. He also denied that he found out prior to entry into the second contract for sale (on 1 July 2016) that there was no Construction Certificate.
12. I am prepared to accept that when the first contract for sale was entered into on 11 May 2016 Mr Imseis understood, based on the representations made by the agent, that a Construction Certificate had been approved in relation to the proposed development of the property. I am also prepared to accept that this belief contributed to his decision to enter into the first contract for sale. I note that cl 3.2 of the as yet unexecuted Agreement for Lease that was attached to the contract included an acknowledgement by the parties that the Construction Certificate for the Landlord's Works will be released "only once payment of any SIC has been paid by the Landlord".
13. Nevertheless, Mr Imseis did not give any evidence about what he would have done had he been aware of the true position in relation to the Construction Certificate. As conceded by counsel, there was no evidence of the "counterfactual". Whilst the giving of evidence of that type is not always necessary in order to prove that loss was caused by the wrongful conduct, I would not be prepared to find in the circumstances of this case that had Mr Imseis been aware of the true position, he would not have been prepared to enter into the first contract for sale. In this regard, I note that Mr Imseis gave some answers in cross-examination to the effect that he regarded the transaction overall as a very attractive proposition, and he expected that his brother-in-law as the builder would give him a very good deal. Mr Imseis may well have proceeded regardless. He may well have sought to negotiate different terms. In the absence of any evidence from Mr Imseis about these matters they remain in the realm of speculation. Rima Imseis gave no evidence at all about the effect any of the representations may have had upon her in relation to entry into the first contract for sale.
14. Once that contract was made on 11 May 2016 Ebrahim and Rima Imseis were bound to proceed in accordance with its terms. As noted earlier, completion of the contract was made conditional upon the parties entering into an Agreement for Lease in the terms of the agreement attached to the contract. Ebrahim and Rima Imseis were not obliged to proceed to enter into the Agreement for Lease, but if it did not proceed, Pham Property would have the right to rescind the contract for sale. The contractual position was essentially the same following the rescission of the first contract for sale and entry into the second contract for sale on 1 July 2016. By that time, Mr Imseis had paid the SIC of almost $82,000. There is no evidence that Mr Imseis would not have paid the SIC had he known the true position in relation to the Construction Certificate. Neither is there evidence that he would not have been prepared to enter into the Agreement for Lease had he known the true position. In this regard, I note that by no later than 9 June 2016 the defendants appear to have become aware that no Construction Certificate had actually issued. This emerges from the terms of Mr Pickering's letter of that date, which refers to the emails that had been sent by the Council on 5 February 2016 and 19 April 2016.
15. It can be accepted that had the Construction Certificate been "approved" such that the Council would have been prepared to issue it once the SIC was paid, Ebrahim and Rima Imseis would not have sustained the loss or damage for which they seek compensation. It would not have been necessary to incur the cost of obtaining the reports and other information required by the Council before it would release the Construction Certificate. Further, there would be no delay in the issuing of the Construction Certificate and thus no loss arising therefrom. But Pham Property did not give a contractual promise or warranty that the Construction Certificate was "approved". Had Pham Property done so, then damages would be recoverable for those losses for breach of contract or warranty.
16. The relevant question here, however, is not whether those losses flowed from such a breach, but whether they were suffered because of the conduct of Pham Property in contravention of the Australian Consumer Law. That is, whether they were suffered because of the statements about the Construction Certificate that contravened ss 18 and 30. It has not been established on the evidence that had that conduct not occurred, Ebrahim and Rima Imseis would have taken a different course and thereby avoided the losses complained of. Those losses were sustained in the course of the overall transaction for the purchase, development and leasing of the property. It has not been shown that had the wrongful conduct not occurred, the transaction would not have proceeded, or would have proceeded in a different way, and in either case that Ebrahim and Rima Imseis would have been better off as a result. I will add that they have not shown that the overall transaction has been commercially disadvantageous to them.
17. For the above reasons, the claim for damages pursuant to the Australian Consumer Law has not been made out. It is not necessary to consider some other matters raised by Pham Property in opposition to the claim, including the effect upon causation of the acknowledgements made by the defendants in special condition 6.1 of the contracts for sale, and the fact that the defendants made no claims under cl 7 of those contracts.

Conclusion

1. CBS is entitled to judgment for $105,041.66, together with interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) from 6 June 2018 to the date of judgment. Orders in the nature of specific performance will be made to require execution of a lease, in accordance with the terms of the Agreement for Lease, with a Commencement Date of 22 June 2019. The Cross-Claim must be dismissed. Costs should follow the event. The parties are directed to confer and submit proposed Short Minutes of Order to give effect to these reasons within 7 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2020