Emhill Pty Ltd & Anor v Bonsoc Pty Ltd

Emhill Pty Ltd & Anor v Bonsoc Pty Ltd - [2007] VSCA 108 - VSCA 2007 case summary — Zoe

[5]

Introduction

1 This is an appeal in two separate matters between the same parties; matter numbers 4582 of 2003 ("the L proceeding") and 4583 of 2003 ("the Q proceeding") in the Supreme Court. Pursuant to s 109 of the Magistrates' Court Act 1989, a judge of the Trial Division heard appeals from the Magistrates' Court in both the L and Q proceedings. His Honour delivered a separate judgment in each of the two matters.[1] The appeal is from those decisions.

General Background to both L and Q Proceedings

Factual Background

2 Both the L and Q proceedings share the same background. Bonsoc Pty Ltd ("Bonsoc") leased to Emhill Pty Ltd ("Emhill") various subdivided units of 70 Gladstone Street, South Melbourne. Units 1, 2 and 3 were retail properties. Units 4, 5 and 6 were car-parks adjacent to those retail properties. Dixon Krestles & Co Pty Ltd ("Dixon Krestles") acted as an agent for Bonsoc. Mr Brian Arthur Cook, a director of Emhill, personally guaranteed Emhill's obligations under the leases.

3 There are three relevant leases. By lease commencing 1 November 1993, Bonsoc leased unit 1 to Emhill. By lease commencing 1 November 1994, Bonsoc leased unit 2 (including unit 6 annexed thereto) to Emhill. Both leases were due to expire on 31 October 1996 and both leases provided an option to Emhill to renew its tenure for two further terms of two years each. By lease dated 22 January 1996, Bonsoc leased unit 3 to Emhill. This lease was due to expire on 21 January 1998 and also provided for Emhill to renew its tenure for two further terms of two years each. It was a matter of contention between the parties whether the unit 3 lease also conveyed tenure to units 4 and 5.

4 The Q proceeding arises out of allegations as to Bonsoc's conduct prior to the parties entering the leases. The L proceeding arises out of the termination of those leases.

Litigation History

5 In November 1998, Bonsoc filed a complaint against Emhill and Mr Cook in the Magistrates' Court claiming arrears in rent and outgoings in respect of all three leases as well as damages (the L proceeding). In August 1999, Emhill filed an amended counter-claim for damages for wrongful termination of the unit 1 and unit 2 leases based on s 14 of the Retail Tenancies Act 1986. On 25 February 2000, having heard the matter, the learned Magistrate ordered that Emhill pay Bonsoc $27,630.30 in rent and damages together with $8,182.90 for interest and costs of $3,390.00. Emhill's counter-claim was dismissed.

6 In May 2001, Emhill appealed to the Supreme Court pursuant to s 109 of the Magistrates' Court Act 1958 raising questions of a law, including questions on the operation and effect of s 14 of the Retail Tenancies Act 1986. On 4 June 2001, Balmford J found for Emhill on these questions and remitted the matter to the same Magistrate for a rehearing in accordance with her Honour's answers.[2]

7 It was at this stage, on 18 March 2002, that Emhill instituted proceedings based on alleged misrepresentations by Bonsoc. Emhill claimed that Bonsoc, in asserting title to unit 6 which was attached to the unit 2 lease, fraudulently misrepresented its position to induce Emhill into the lease over unit 2 (with unit 6 annexed thereto); alternatively, that it acted negligently; alternatively, that it engaged in misleading and deceptive conduct contrary to the Trade Practices Act 1974 and the Fair Trading Act 1985. Emhill sought orders that the unit 2 lease be set aside ab initio; that a value of $150 per month be set off against monies owed by Emhill under the lease; that Emhill be absolved of its obligations under all three leases; and that Emhill be awarded damages for its loss of opportunity as well as the relocation of its premises upon the termination of the unit 1 and unit 2 leases. Accordingly, when the dispute between the parties came before the Magistrate for the second time in December 2002, this second claim by Emhill (the Q proceeding) fell for consideration.

8 The learned Magistrate heard the case for a second time and, on 22 January 2003, found for Bonsoc in both proceedings. Emhill appealed again under s 109 of the Magistrates' Court Act 1989 to a judge of the Trial Division on a question of law. On 18 September 2003, that judge found for Bonsoc.

Background Facts to the Q Proceeding

9 Bonsoc and Emhill entered the unit 2 lease on 11 November 1994. Attached to the unit 2 lease was unit 6 which was a car-parking space. It is uncontroversial that Bonsoc did not, in fact, possess title to unit 6. This came to light in mid-June 1996, when Mr John Counsel, proprietor of S&O Plumbing Pty Ltd ("S&O Plumbing"), advised Mr Cook that his company in fact owned the property and that they wished to use it.

10 This state of affairs, whereby Bonsoc was accepting money for a unit which it did not own, arose out of dealings between Mr Cook, as director of Emhill; Ms Pamela Ann Fay, the commercial property manager of Dixon Krestles; Mr John Pratt, a director and principal of Dixon Krestles; and Mr Nick Bonfitto, a director of Bonsoc who acted on their behalf in signing the leases. The addition of unit 6 to the unit 2 lease was apparently an afterthought: Mr Cook added a condition to the lease that the premises include one car parking space "adjacent as marked on the plan" (these markings are of unit 6). The condition was signed by Mr Bonfitto on behalf of Bonsoc. Unit 6 sat next to units 4 and 5 which, according to Emhill, formed part of the unit 3 lease. Mr Bonfitto knew that Bonsoc owned only two out of the three car-parking spaces. Also involved in the transaction were Ms Fay and Mr Pratt of Dixon Krestles. With respect to Mr Bonfitto, the Magistrate found:

[11]

13 The main factual issue was Bonsoc's alleged dishonesty, either through an employee or its agent Dixon Krestles, in purporting to confer a right to occupy unit 6 on Emhill. This finding depended on two other issues: whether the unit 3 lease conferred rights with respect to units 4 and 5; and if it did, whether Bonsoc or its agent, knowing that Emhill owned only two out of the three parking spaces, was acting dishonestly in entering into the unit 3 lease which (when read with the unit 2 lease) conferred an entitlement to all three parking spaces. As explained later, the action in fraud failed. The former of these two inter-related issues being answered in the negative, there was no occasion to answer the second. In fact, as stipulated at several points in the communications between the parties, Bonsoc had not in fact assented to the annexure of units 4 and 5 to the unit 3 lease. The lease itself showed that Mr Cook unilaterally added the reference to units 4 and 5 himself.

14 Emhill's solicitors informed Dixon Krestles that Bonsoc did not own unit 6 soon after they became aware of the situation in mid-June 1996. Correspondence between the parties as to a solution to the problem proved fruitless. Dixon Krestles seemed to be under the impression that, by establishing that no rights were conferred with respect to units 4 and 5, it was relieved of any obligations under unit 6.

15 Around 15 July 1996, Emhill told Dixon Krestles that it had solved the problem at hand by entering into an agreement with S&O Plumbing for the rental of unit 6. In the same letter, Emhill also asserted that the rent for unit 2 should be reduced by $150.00 per month (backdated to the commencement of the lease - some 20 months); that $35.00 would also be deducted each month for administrative costs; and that Emhill's solicitors would be seeking from Bonsoc the costs incurred by Emhill in negotiating with P&O Plumbing. The letter also asserted that cheques were enclosed which, in light of the deductions outlined above, satisfied any outstanding debt. A series of communications then ensued which are relevant to the L Proceedings. In short, they led to, by one means or another, the termination of the unit 2 lease and Emhill vacating the premises on 13 November. Emhill occupied unit 2 from 1 November 1994 until 13 November 1996.

The Magistrate's Decision in the Q Proceeding

16 With respect to Emhill's claim under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1985 (Vic), the Magistrate held:

[38]

Fraud

31 The Magistrate found that neither Mr Bonfitto nor any other relevant person was acting dishonestly. That was a finding of fact open to the Magistrate. Further, the learned judge's analysis[15] with respect to Krakowski v Eurolynx Pty Ltd[16] which is stated above is plainly correct.[17] In Macquarie Bank v Sixty-Fourth Throne Pty Ltd,[18] Tadgell JA observed that neither Krakowski nor any other authority "justified the simple aggregation of the knowledge of a number of persons individually unaware of fraud, or facts which ought to disclose it, to create a notional person with dishonest intent." Aside from this applying within the company, it also applies to the appellant's attempt to found a dishonest intent by attributing the knowledge of the agent, Dixon Krestles, that Bonsoc did not own unit 6 to its principal.[19]

32 Albeit innocently, on the findings of fact in the Magistrates' Court, Bonsoc had misrepresented its position: by conferring a lease with respect to certain land, Bonsoc represented that it held title to that land; or, at least, that it was entitled to confer the tenure it purported to confer. By entering into the lease that it did, Bonsoc represented that it held title to unit 6. It did not have such title. Further, given the circumstances under which unit 6 was added to the lease, it is clear that the inclusion of unit 6 in the lease induced Emhill to enter the contract. Mr Cook made the relevant addition to the contract himself and it was signed by Mr Bonfitto. Although Mr Bonfitto did not instigate the inclusion of unit 6 in the lease, by assenting to its inclusion, he held out that Bonsoc held title to unit 6.

33 Save for what I say below,[20] I do not consider it relevant for the purposes of determining the appellant's fraud claim that Emhill fortuitously did in fact use the land. Further, I do not consider it relevant that Bonsoc and P&O Plumbing subsequently permitted Emhill to continue to use the land. Clearly, Emhill was not privy to any arrangements between Bonsoc and P&O Plumbing and those parties could not, by themselves, derogate from any rights that Emhill possessed against Bonsoc by their own agreement. As between Bonsoc and Emhill, Bonsoc was receiving money under a false pretence. It purported to confer tenure to unit 6 and it failed to do so. Jessel MR said in Redgrave v Hurd:[21]

[45]

"14. Options to renew

(1) In this section "option" does not include the statutory option.

(2) If a retail premises lease contains an option exercisable by the tenant to renew the lease for a further term, the lease must state--

(a) the date until which the option is exercisable; and

(b) the manner in which the option is to be exercised; and

(c) the terms and conditions upon which the lease is renewable under the option; and

(d) the manner in which the rent payable during the term for which the lease is renewed is to be determined.

(3) If a retail premises lease contains an option exercisable by the tenant to renew the lease for a further term, the landlord must notify the tenant in writing of the date after which the option is no longer exercisable at least 3 months before that date.

(4) If a landlord fails to notify a tenant as required by sub-section (3), the retail premises lease is to be taken to provide that the date after which the option is no longer exercisable is the day that is 3 months after the landlord gives the tenant the notice required by that sub-section and, if that date is later than the date of the expiry of the term of the lease, the lease continues, subject to subsection (9), until that date.

(5) If a retail premises lease contains an option exercisable by the tenant to renew the lease for a further term, the only circumstances in which the option is not exercisable is if--

(a) the tenant has not remedied any default under the lease about which the landlord has given the tenant written notice; or

(b) the tenant has persistently defaulted under the lease throughout its term and the landlord has given the tenant written notice of the defaults.

(6) If a retail premises lease does not provide for an option to renew the lease, at least 3 months before the lease ends the landlord must notify the tenant in writing whether or not the landlord wishes to renew the lease and the terms and conditions if the landlord wishes to renew it.

(7) If a landlord fails to notify a tenant as required by sub-section (6), the lease continues, subject to sub-section (9), until a day specified in a notice (containing the same information as is required by sub-section (6)) given to the tenant by the landlord that is more than 3 months after the giving of the notice.

(8) The terms and conditions upon which a lease that continues by virtue of sub-section (4) or (7) is held are the same as those upon which the lease was held immediately before it was continued.

(9) If a landlord fails to notify a tenant as required by sub-section (3) or (6), the tenant may, by written notice given to the landlord, determine the lease as from any day that is--

(a) not earlier than the expiry of the term of the lease; and

(b) not later than the day to which the lease would otherwise have continued by virtue of sub-section (4) or (7)."

[75]

This is the view espoused by the learned judge below and supported by Roadshow Entertainment Pty Ltd v CEL Home Video Pty Ltd.[51]

69 The question then becomes whether Emhill had repudiated the contract, breached an essential term of the contract or deprived the other party of the substantial benefit of the contract. In the original complaint filed with the Magistrates' Court on 26 November 1998, Bonsoc sued on all three leases. In his findings and orders, the learned Magistrate awarded Bonsoc a total amount of $27,630.93 plus interest of $8,182.90 and costs of $9,398.00. Given the nature of the evidence in front of him, it is clear the Magistrate accepted the evidence of Mr Pratt that the amounts owing under each of the leases were as follows: unit 1 lease - $5,618.09; unit 2 lease - $506.95; unit 3 - $5,705.89.

70 As the judge below stated, the unit 2 lease contains a clause 3(e) rendering time of the essence with respect to the payment of rent, outgoings as well as costs and expenses. By reason of Emhill's breach of an essential term, his Honour held that it was not entitled to accept Bonsoc's repudiation.[52] I agree with his Honour's reasoning.

71 His Honour said the same of the unit 1 lease.[53] It should be noted that the unit 1 lease does not contain such a clause. In this respect, the judge below made an error. However, it is of no consequence. As the Magistrate accepted, Emhill was $5,618.09 in arrears of the unit 1 lease. The amount was equivalent to more than five months rent on unit 1 and was repudiatory conduct. By operation of the same rule already stated, Emhill was precluded from accepting Bonsoc's repudiation with respect to the unit 1 lease.

72 There is also the issue as to whether the judge below, in determining that Emhill was precluded from accepting Bonsoc's repudiation, was acting within jurisdiction. This issue arises because the Magistrate, having found that Bonsoc's actions did not constitute repudiatory conduct, did not turn his mind to the question of whether Emhill were precluded from accepting such repudiatory conduct. The judge below was hearing an appeal pursuant to s 109 of the Magistrates Court Act "on a question of law."

73 However, in this instance, the judge below did not disturb any of the basic factual premises upon which the Magistrate proceeded. Rather, he drew different inferences (with concomitant legal consequences) from those findings and gave the judgment which ought to have been given on those findings. Such an exercise involves answering a question of law.[54]

74 On this basis, I would uphold the conclusion of the judge below that the contract did not come to an end by operation of Emhill's letter dated 18 October 1996. In any event, this conclusion may be of little consequence given that the lease came to an end by reason of surrender by operation of law.

Surrender of the Lease by Operation of Law

75 Because Emhill was not in a position on 18 October 1996 to accept Bonsoc's repudiation of the unit 1 and unit 2 leases, it is necessary to consider whether those leases came to an end by operation of law.

76 The learned judge below referred to Seacrest Pty Ltd & Anor v Apriaden Pty Ltd[55] ("Seacrest"). Like the facts in this case, the landlords in Seacrest had failed to comply with s 14(3) of the Act.[56] Also similar to the facts in this case, Seacrest involved the ineffective exercise of an option to renew a lease that fell within the Act. Initially, an arbitrator held that the tenants, by purporting to renew the lease immediately prior to the expiry of that option, had relieved the landlords of their obligations under s 14(3). The reasoning behind this decision was clear: the policy behind s 14(3) is to ensure tenants know of a pending expiry date to renew their lease; the purported exercise of the renewal (later found to be ineffective) evincing that awareness by the tenants, s 14(3) need not be strictly enforced.

77 On appeal before a judge of the Trial Division, this reasoning was rejected.[57] On appeal to the Court of Appeal, Brooking JA (with whom Ormiston JA and Phillips JA agreed) also rejected this reasoning. Brooking JA reasoned that, if a landlord had failed to execute its duties under s 14(3), s 14(4) "is to operate according to its tenor unless it can be said that some event has occurred which, on the proper construction of the section, is by implication to have some effect that can be precisely stated by way of cutting down the operation of the subsection".[58] In support of this, Brooking JA cited Dawson J in Mills v Meeking,[59] with respect to s 35 of the Acts Interpretation Act 1984 (Vic):[60]

[78]

"Subsection (4) operates in two ways. By what I might call its first branch, it operates, in effect, by way of varying of the provisions of the lease: the lease is to be taken to provide that the last day for the exercise of the option is the day that is three months after the landlord gives the notice required by subs (3). The second branch of subs (4) does its work, not by way of varying the provisions of the lease, but by way of providing what the operation or effect of the lease is to be: if the date which the lease is to be taken to fix as the last day for exercising the option is later than the date of the expiry of the term of the lease, the lease is to continue until that date unless the tenant determines it pursuant to subs (9). As regards the first branch of subs (4), I find it extremely difficult to see how it could be said that, by implication from the suggested purpose of the section, some subsequent event is to affect the reforming of the lease which has already occurred by force of subs (4): the lease is to be taken to make a certain provision, and I should have thought that it must be taken to continue to make that provision notwithstanding later events. I am not sure whether the arbitrator, in speaking of the sanction for failing to give the notice required by subs (3), had in mind the first branch of subs (4), or the second, or both branches. As regards the second branch of subs (4), what is the suggested event upon the occurrence of which the operation of subs (4) is, by implication, to be affected, and in precisely what way is the operation to be affected? As to the second question (how is the operation of subs (4) affected?), is the term of the lease to expire immediately upon the occurrence of the event (assuming that it would already, but for subs (4), have expired)? As to the first question, what is the event which it is suggested in this case has affected the operation of subs (4)? It is certainly not the effectual exercise of the option of renewal, for on the unchallenged determination of the arbitrator the purported exercise, although good in manner and form, was ineffectual by reason of breaches of covenant."

[79]

79 Brooking JA refrained from stating what the effect of a valid exercise of the option to renew would be.[62] At its narrowest, Seacrest stands for the proposition that an ineffectual exercise of an option to renew by a tenant does not obviate the need for a landlord, if the lease is to come to an end, to provide the tenant with the notice required under the Act.

80 Here the learned judge found that the lease came to an end by Emhill surrendering the lease by operation of law. The doctrine of surrender by operation of law being a means to termination extraneous to the Act, the question is whether, once s 14 is engaged, the only manner in which a lease under the Act may come to an end is pursuant to that section.

81 To summarise Brooking JA in Seacrest, s 14(4) operates in the following way: (1) upon the fulfilment of a certain condition, it varies the terms of the lease; and (2) upon the fulfilment of a further condition, subject to s 14(9), it extends the period of the lease. Section 14(9) requires that termination be in writing. However, just because the second limb occurs "subject to" sub-s (9) (a terminating provision), does not mean that sub-s (9) is the sole manner in which the lease may be terminated once sub-ss (3)-(4) has been engaged. In light of the ordinary and natural meaning of that section, such a conclusion is not justified. The situation in Seacrest is distinguishable because the construction of the Act put forward by the landlords in that case was contrary to the express wording of s 14(4). In this case, the express wording of the section does not touch upon the operation of the doctrine with which we are concerned; namely, the doctrine of surrender of a lease by operation of law. Further, it would not be consistent with the purposes of the Act to exclude the operation of surrender by operation of law from retail tenancy arrangements. The doctrine of surrender by operation of law operates contemporaneously with the Act.

82 On that topic, Fullagar J in Andrews v Hogan[63] stated:

[88]

[1] Emhill Pty Ltd & Anor v Bonsoc Pty Ltd [2003] VSC 333 and Emhill & Anor v Bonsoc Pty Ltd (No 2) [2003] VSC 337.

[2] Emhill Pty Ltd and Brian Arthur Cook v Bonsoc Pty Ltd [2001] VSC 179.

[3] p 426.

[4] Ibid.

[5] (1995) 183 CLR 563, 578-79 ("Krakowski").

[6] Emhill Pty Ltd v Bonsoc Pty Ltd (No 2) [2003] VSC 337, [4].

[7] Ibid [17] - [18].

[8] Ibid.

[9] See [20] above.

[10] Emhill Pty Ltd v Bonsoc Pty Ltd (No 2) [2003] VSC 337, [26].

[11] (1995) 183 CLR 563.

[12] See Emhill Pty Ltd v Bonsoc Pty Ltd (No 2) [2003] VSC 337, [19]-[20].

[13] See [34].

[14] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.

[15] See Emhill Pty Ltd v Bonsoc Pty Ltd (No 2) [2003] VSC 337, [11-12].

[16] (1995) 183 CLR 563.

[17] at [21].

[18] [1998] 3 VR 133, 145.

[19] This argument of the appellant also involved reliance on Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd v Ors [2004] HCA 52; (2004) 211 ALR 342. This case, however, does not help the appellant.

[20] See [48].

[21] (1881) 20 Ch D 1, 12-13.

[22] The law as laid down in that case is described as 'unchallenged' in R Meagher, D Heydon and M Leeming, Meagher, Gummow & Lehane's Equity, Doctrines & Remedies (4th ed, 2002), [13-025].

[23] Academy of Health and Fitness Pty Ltd v Power [1973] VicRp 25; [1973] VR 254, 265-66.

[24] Maguire v Makaronis (1996) 188 CLR 216, 224; Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216, 223.; cf the position at common law as stated in Clarke v Dickson [1858] EngR 605; (1858) EB & E 148; 120 ER 463.

[25] Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216, 224.

[26] [1995] HCA 14; (1995) 184 CLR 102 ("Vadasz").

[27] The decision in this case does not rest on whether the misrepresentation was fraudulent; see ibid 109-10.

[28] Vadasz [1995] HCA 14; (1995) 184 CLR 102, 114.

[29] See Roxburgh v Rothmans of Pall Mall Australia (2001) 185 ALR 335, 339-41.

[30] Later repealed by the Retail Tenancies Reform Act 1998, s 50.

[31] [1982] HCA 47; (1982) 149 CLR 620, 633.

[32] The learned Magistrate referred to the terms of the letter. Putting this aside, the conclusion is correct, if not for any other reason than by s 14(9)(a): The lease was due to cease on 31 October 1996; the letter was dated 18 October 1996.

[33] That said, with respect to the unit 3 lease, there was evidence that the appellant was in arrears some $5,705.89. The Magistrate's findings with respect to the unit 3 lease were not the subject of this appeal.

[34] Emhill Pty Ltd v Bonsoc Pty [2003] VSC 333, [28].

[35] Ibid [29].

[36] Ibid [30-31].

[37] In this space, the original actually states 'repudiated'. However, it is clear from what precedes this paragraph that this is an error and this insertion is really what the judge below meant.

[38] Ibid [32]. Just prior to the passage quoted, his Honour refers to "the events of 18 November 1996". This is an obvious typographical error and should read "the events of 13 November 1996".

[39] Ibid [33].

[40] Ibid [33].

[41] [2000] VSCA 75; (2000) 1 VR 567.

[42] Emhill Pty Ltd v Bonsoc Pty Ltd [2003] VSC 333, [37].

[43] Ibid [39].

[44] Ibid [40].

[45] Ibid [43].

[46] [1989] HCA 51; (1989) 168 CLR 385, 441.

[47] See [54] above.

[48] [2000] VSCA 75; (2000) 1 VR 567.

[49] The respondent also relied on DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423, 432 for the proposition that the conduct of a party who insists bona fide on the wrong interpretation of a contract should not be considered repudiatory. That case involved a bona fide dispute over the interpretation of a contract. Even if the case were applicable here, there was no evidence upon which this claim could be supported.

[50] See p 943.

[51] [1997] NSWSC 473; (1997) 42 NSWLR 462, 470-80.

[52] See above n 34.

[53] Ibid.

[54] See Unsworth v Commissioner for Railways [1958] HCA 41; (1958) 101 CLR 73, 83.

[55] [2000] VSCA 75; (2000) 1 VR 567.

[56] See Seacrest [2000] VSCA 75; (2000) 1 VR 567, 573; the landlord argued that it had not in fact breached s 14(3) because, although it had failed to give notice and the lease did contain an option to renew, it was not "exercisable" (ie able to be exercised) by virtue of the tenant's breach of the lease with respect to rent. This argument was rejected. The words a "lease contains an option exercisable by the tenant" in s 14(3) of the Act means "the lease contains an option of renewal in favour of the tenant".

[57] See Seacrest Pty Ltd & Anor v Apriaden (1999) V Conv R 54-598 (Byrne J).

[58] See Seacrest [2000] VSCA 75; (2000) 1 VR 567, 573-74 (citations omitted).

[59] [1990] HCA 6; (1990) 169 CLR 214.

[60] Ibid 235.

[61] Seacrest [2000] VSCA 75; (2000) 1 VR 567, 574.

[62] Ibid.

[63] (1952) 86 223, 253; Konica Business Machines v Tizine Pty Ltd (1992) 26 NSWLR 687, 693; Tasita Pty Ltd v Sovereign State of Papua New Guinea (1991) 34 NSWLR 691, 695.

[64] (1991) 34 NSWLR 691, 695 (citations omitted).

[65] Konica Business Machines v Tizine Pty Ltd (1992) 26 NSWLR 687, 693.

[66] See Emhill Pty Ltd v Bonsoc Pty [2003] VSC 333, [33].

At a glance

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Judgment (88 paragraphs)

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Legislation Cited (14)

Cases Cited (16)