First issue: what representations were made?
46I propose to approach this issue on the basis that, notwithstanding the way its case was pleaded, Consulting is entitled to rely on the case that was opened and run; namely, that there were six separate representations made on which it relied to its detriment. It is convenient to deal with each of those representations separately, bearing in mind of course that the first three were made before Consulting began to occupy lot 7 or conduct any business from it.
16 August 2006
47In summary, Mr Turner's evidence as to the discussions that he said he had with Mr Lawton on that day was to the following effect:
Mr Turner met Mr Lawton and said that he was speaking for himself and also "on behalf of most of the other lot holders".
Mr Lawton said that Maritime had just taken the land over from NSW Fisheries, wanted to make sure that the site was properly managed for maritime and oyster industry purposes, and wanted the place cleaned up. Mr Turner agreed to pass that message on.
Mr Turner said that he and the others were "looking to get a lease" and asked "what sought of tenure are we going to get" Mr Lawton replied that this was "yet to be sorted out, but it will be in keeping what the oyster farmers have".
There was discussion as to obtaining an accurate survey of the boundaries, as to Mr Turner's having the right to use part of "Dick Rowe Marine's site" and as to what was effectively a common area, known as lot 3. Mr Lawton said that he would look into those issues.
48Mr Lawton agreed, by reason of correspondence to which I will turn in a moment, that there was a meeting on 16 August 2006. He said that it was "possible that the gist of the conversation was as stated by" Mr Turner. However, he denied that he said that any tenure "will be in keeping with what the oyster farmers have". He gave two reasons for being certain that he did not say words to that effect:
(1) oyster licenses were granted by NSW Fisheries, not Maritime; any occupation by an oyster farmer of a part of the overall site was incidental to licences to farm oysters granted by NSW Fisheries. In his mind, there was a differentiation between use of parts of the site for aquaculture purposes and use of the site for other purposes which did not involve aquaculture and which he called "industrial maritime" purposes; and
(2) in about 2004, NSW Fisheries had informed Mr Lawton that there was to be a trial reintroducing oyster cultivation into the Georges River using Pacific oysters. To that end, NSW Fisheries wanted to make sure that there was land available to support those operations if required. Accordingly, NSW Fisheries asked Maritime not to enter into lease agreements exceeding three years. On 13 May 2004, Mr Lawton sent and email to an officer of NSW Fisheries asking for confirmation of that request. He said, and I accept, that in no circumstances he would have agreed, in August 2006, to grant any form of any long term tenure. (It is convenient to note that the lease of lot 4 presently held by Mr Drake's company was in force as at August 2006 (it commenced on 6 July 2001) and was for a term of 15 years expiring on 31 December 2016.)
49Mr Turner wrote to Mr Lawton, following the meeting, on 18 August 2006. That letter referred to the meeting and "the positive outcomes on behalf of ourselves and Dick Rowe Marine" (ie, the request for the formalisation of Construction's use of part of the land occupied by Dick Rowe Marine). The letter referred to some of the consequences of those "positive outcomes" and then turned to the common area, lot 3. Conspicuously, the letter made no mention whatsoever of any indication (let alone undertaking or promise) from Mr Lawton that any tenure granted to occupants of lots on the site would "be in keeping with what the oyster farmers have". The letter did not even refer to any request for an indication of what tenure might be granted to occupants.
50I do not accept that, if those matters had been raised and if Mr Lawton had used words to the effect of those attributed to him, the letter would have been entirely silent. On Mr Turner's account of the meeting, there were, from his perspective, two important matters discussed: Construction's use of part of the land occupied by Dick Rowe Marine; and security of tenure. The letter referred in some detail to the first matter, and made not even a passing reference to the second. To my mind, this confirms Mr Lawton's evidence that the question of tenure was not discussed; specifically, his denial that he gave any assurance of security of tenure "in keeping with what the oyster farmers have".
51I conclude that the representation said to have been made on 16 August 2006 was not made.
12 December 2007
52Mr Turner said that he met Ms Perez and Mr Tyler of Maritime on 12 December 2007 at the site, with other lot holders present, and that Ms Perez introduced Mr Tyler "as Waterway's surveyor" (referring to the previous name of Maritime). There was some discussion about boundaries, encroachments and rubbish.
53According to Mr Turner, Mr Tyler and his staff went off to carry out their survey work. He said that he then had a discussion with Ms Perez, in the course of which he asked:
When do you think we will get our lease documents? Are you able to tell me what term we'll be given? And what will the cost be?
54He said that Ms Perez replied:
The cost and the time frames will be based along the same lines as the current oyster farmers. It will be based on the same rates and for the same term.
55Mr Hedison dealt with this meeting, although he placed it towards the end of 2007 or around the start of 2008. He said that there were discussions as to tenure, in the course of which Mr Turner referred to the need for certainty, and Mr Hedison joined in. According to Mr Hedison, Ms Perez replied:
You are all going to be secure here. This is a marine precinct and we want to keep it this way.
56Mr Turner did not give any evidence of a conversation to the effect set out by Mr Hedison in this part of his affidavit.
57However, Mr Hedison said, after the conversation that I have just referred to, he overheard an exchange between Ms Perez and Mr Turner in which Mr Turner said:
We want to be the same as everyone else including the oyster farmers. We want the same sought of tenure.
58According to Mr Hedison, Ms Perez replied:
You will be treated the same. Everyone here will get the same treatment.
59Ms Perez accepted that she attended the site on or about 12 December 2007. She said that she attended with Messrs Lawton and Tyler, and three surveyors. She said that Mr Tyler and Mr Lawton were her superiors, and that Mr Tyler was not a surveyor.
60Ms Perez could not recall the details of the conversations that took place during this site visit. However, she said, she did not think that she "would have spoken to [Mr Turner] about any matter of substance" on that or any other visit to the site. She gave reasons:
(1) her role in the site visits was to be an observer; she did not speak unless Mr Lawton asked her to do so;
(2) she felt uncomfortable and nervous on these visits;
(3) had she been asked questions of the sort that Mr Turner alleges he put, she would not have answered them herself, but would have referred them to Mr Lawton or Mr Tyler; and
(4) in any event, she did not have the information that would have enabled her to give proper answers to the questions, let alone the answers attributed to her.
61Ms Perez did not in terms deal with Mr Hedison's affidavit, because it was sworn and filed after she had sworn her affidavit. However, it is clear in particular from her cross-examination that, for the reasons that she gave in relation to Mr Turner's affidavit, she did not accept that she would have used the words attributed to her by Mr Hedison,
62At the time of the meeting, Ms Perez had not been employed by Maritime for any length of time. I accept her evidence that she did not know of the proposals to give any form of tenure to lot holders, and that she would not have answered the questions said to have been put to her in the way alleged by Mr Turner or Mr Hedison. I accept, further, that if such questions had been put to her, she would have referred them to Mr Lawton or Mr Tyler for an answer. Those aspects of her evidence were substantially unshaken, and in my view they coincide with the probabilities, regarded objectively.
63I have not overlooked the fact that Mr Hedison provides some corroboration of this aspect of Mr Turner's evidence, and that I accept that Mr Hedison was doing his best to tell the truth. However, I have concluded that he is mistaken.
64Neither Mr Turner nor Mr Hedison has any record of what was said at the meeting. Nor is there any contemporaneous record which lends any support to the account that each of them gives of what was said at the meeting. There is, however, an important matter of context that seems to me to be inconsistent with the accounts given by them. I turn to that.
65On about 12 January 2008 (within a month of the conversation alleged by Mr Turner), Maritime provided to Mr Turner "t/a Harbour Port Constructions Pty Ltd" a document described as "offer of licence terms sheet". The licence offered by that document was for a term of 12 months, with a monthly holding over thereafter, and without any option for renewal. There was no protest that this document was inconsistent with the assurances said to have been given by Ms Perez. I have no doubt that, if such assurances had been given, Mr Turner would have protested vigorously that the offer made did not match up to them. I note that Mr Turner was careful to annotate the offer of licence terms sheet where he felt it was defective. In particular:
(1) as to the description of the licensed area, Mr Turner added a handwritten note: "note: - As yet not identified on C21-11/11/02"; and
(2) after words warning that the offer would lapse if it were not signed and returned within 14 days of its due date (Mr Turner did not do so, because he was on holidays when it was received), he wrote: "note: - This was waived as the sq. mt. was being worked out".
66It is difficult to believe that a person who was so punctilious would have failed to make any note about the offer of a licence for a term of 12 months, rather than for a term consistent with the 15 year term then held by the lessee of lot 4.
The January telephone conversation
67Mr Turner said that he had a telephone conversation with someone from Maritime on either 8 or 31 January 2008. He relied on notes in his diary:
(1) for 8 January 2008, a note reading "waterways re: - lease - see 12/12/"; and
(2) for 31 January 2008, a note reading "ring waterways lease - 12/12/"
68Mr Turner "recalls" that in one or other of those telephone conversations he spoke with either Ms Perez or Mr Lawton (he "believes" it may have been Ms Perez but cannot recall precisely) about "the guidelines of the lease". According to him, Ms Perez said that the documents had been prepared and he would receive them shortly. There was discussion of the need for an accurate survey. According to Mr Turner, he then asked what the terms of the lease would be, pointing out that "we've all been spending money... but we can't predict how long we're going to be here". He said that Ms Perez replied:
I know all the works you've been doing. Don't worry, you'll be treated the same as the oyster farmers. You'll be here as long as everyone else, including the oyster farmers.
69The diary notes to which Mr Turner referred offer no support for this conversation. At most, they show that for each of the days in question, he made a note to remind himself to ring Maritime about the "lease", and crossed the note out when he had done so. This is consistent with his evidence as to his practice, given in cross-examination. However, the diary notes do not provide any record of the terms of the conversation on either of those days, and there is no other contemporaneous record that lends support to this aspect of Mr Turner's evidence.
70Ms Perez accepted that it is likely that she had conversations with Mr Turner (and, for that matter, other lot holders) in January 2008. She said that it was her responsibility to send out to each lot holder the appropriate offer of licence terms sheet, and to ensure that the signed offers were received back by Maritime. Ms Perez did not accept that she used words to the effect of those attributed to her by Mr Turner. In substance, she said that she would not have done so, for the reasons that I have discussed above (except in so far as those reasons related to the presence of Messrs Tyler and Lawton on the site visit in question).
71Essentially for the reasons I have given in relation to the meeting of 12 December 2007, I do not accept Mr Turner's evidence and I do accept Ms Perez's denial. I think it is unlikely that Ms Perez would have used the words attributed to her - particularly when terms sheets either had been sent out or were about to be sent out which provided for licences that did not extend up until 31 December 2016. I think it is highly unlikely that Mr Turner would not have protested vigorously when the offer of licence terms sheet that was sent to him did not match up to the assurance that he said he was given in one or other of these conversations.
10 March 2009
72Mr Turner said that he met Mr Lawton on this day, but cannot recall whether it was onsite or at Maritime's offices at Rozelle. A Mr Heydon Fretton of lot 2 was also present. The meeting was called to discuss a large amount of excavated fill that Mr Fretton's contractors had placed on lot 3. That was discussed. According to Mr Turner, he raised the question of tenure in the course of this meeting, saying that "we're expected to spend serious money on the site but some of us have no idea how long we are going to be here". According to him, Mr Lawton replied:
Your tenures will be okay, but you can't abuse the precinct. You're guaranteed to stay as long as you clean up your shit [referring to the excavated fill]. But you're guaranteed to be kicked off if you keep the site like it is. The rubbish around the precinct at the moment is just completely unacceptable.
73Mr Lawton accepted that he may have met with Mr Turner on 10 March 2009. He accepted, too, that the gist of the conversation may have been as stated by Mr Turner. However, he did not accept that he used the words "guaranteed to stay", or any other words that referred to security of tenure. He stated that in his mind there was no correlation between uses for aquaculture on the one hand, and uses for industrial maritime purposes on the other, nor was there any reason why the tenures offered to the latter should correspond to the tenures offered to the former.
74This is not one of the representations that was referred to in the commercial list statement. Nor was it referred to in the first affidavit sworn by Mr Turner, in support of Consulting's application for interlocutory relief. (That affidavit was not read on the final hearing, but what were suggested to be discrepancies between the account given in that affidavit and the account given in the affidavit that was read were put to Mr Turner in cross-examination.)
75There is no corroboration of Mr Turner's evidence on this point. He made no note of the alleged conversation, nor is there any other contemporaneous document that supports his account of it. Particularly where, it appears, the meeting was not present to his mind when he gave instructions for the drafting of the commercial list statement or his affidavit in support of the application for interlocutory relief, I am not prepared to find that there was a discussion of the kind alleged.
15 September 2009
76Mr Turner said that he had a meeting with Mr Lawton on 15 September 2009 at Maritime's offices in Rozelle. The meeting was called to discuss a proposal for Mr Turner, or other lot holders, to use lot 3 on the site. Lot 3 is in effect a "common area", in the sense that it is not the subject of occupation by any individual lot holder. Lot 3 is situated on a channel which gives access to the Georges River and Port Hacking and beyond. It is used by lot-holders for the purpose of loading and unloading watercraft employed for the purposes of their various businesses.
77According to Mr Turner, he raised the question of whether he, or other lot holders, could "take over lot 3", to which, Mr Turner said, Mr Lawton replied:
No. No one's getting lot 3 for the moment at least. Maritime is in the process of getting the area re-gazetted for marine precinct work zoning. After that you will need a DA to operate on the site. This may or may not mean a formal application but I think not. Its going through Sutherland Council.
78There was then, Mr Turner said, discussion of the timing of the "gazettal" and further discussion of lot 3. After that, according to Mr Turner, there was a conversation to the following effect:
I said: what security are we going to get? I've been asking about security of tenure the whole time I've been on that site.
He said: the zoning will give everybody security in the long term. You will be there as long as everyone else is at the precinct.
I said: the license document I signed said something about us needing to get a DA. But that requirement's never been enforced.
79Mr Lawton accepted that he met Mr Turner on 15 September 2009. He did not recall the specific conversation, but accepted that "it is possible that the gist of the conversation was as stated" by Mr Turner. However, he denied that he said anything about "the long term" or that "you will be there as long as everyone else is at the precinct", or words that gave any assurance of long term occupancy.
80Mr Lawton repeated his view that, in his mind, there was a clear distinction between use for aquacultural purpose and use for maritime industrial purposes. Further, he said, as at 15 September 2009, he and others from Maritime were dealing with Sutherland Council in relation to the rezoning of the entire site. Mr Lawton accepted that he may have discussed this process with Mr Turner. Mr Lawton accepted, further, that it was his view that a rezoning would secure the long term future of the site for Maritime industrial use, and that he may have said as much to Mr Turner.
81I do not accept Mr Turner's evidence. Again, it is unsupported by any contemporaneous note and there is no corroboration. I think that the likelihood that Mr Lawton, as he said, expressed the view that zoning would ensure the long term use of the site for maritime industrial purposes, and did not refer to or give any assurance as to long term tenure for individual lot holders.
12 November 2009
82According to Mr Turner, he met Mr Lawton, again at Maritime's offices in Rozelle, on 12 November 2009. The meeting was called to discuss the calculation of rent. However, Mr Turner said, he raised the question of tenure once more. According to Mr Turner, there was a conversation to the following effect on that topic:
I said: we should be treated the same as everyone else on site. Not only the rent, but the term of tenure too.
He said: I have no issue with the business activities of all license holders. It is a marine precinct. You'll all get the same treatment.
83Mr Lawton accepted that he may have met Mr Turner on 12 November 2009. He did not recall the specific conversation, but again accepted that "it is possible that the gist of the conversation was as stated by" Mr Turner. However, Mr Lawton said, if he said "you'll all get the same treatment", that was in relation to the lot holders who used their lots for maritime industrial purposes.
84Again, there is no contemporaneous record that provides any support for Mr Turner's account of the conversation. There is, however, a contemporaneous record that provides support for Mr Lawton's account. On 12 November 2007, and presumably after the meeting, Mr Lawton sent an email to Mr Turner referring to the meeting. It said, among other things:
As discussed, NSW Maritime has applied a consistent and transparent rental rate to all maritime industrial users of the site, with the exception of Drake Oysters and John Hedison who are covered under other state government legislation associated with aquacultural uses.
85Mr Turner did not reply to that email. He did however include a printout of it in the exhibit to his affidavit. On that printout, Mr Turner had put a circle through the paragraph that I have set out and, below the circle, put a question mark with an arrow leading up to the circle.
86Mr Turner gave the following evidence concerning the email and his notations on it (T62.6-.37):
HIS HONOUR
Q. The email has a hand drawn circle with and arrow pointing up to from below the text and question mark beside the arrow. Do you see that?
A. I do.
Q. Did you put those marks on the print out of it?
A. I did.
Q. Were you highlighting paragraph commencing, "As discussed" by those notes?
A. I was.
Q. Why did you make those marks on the print out?
A. It contradicted the context of the discussion I had with Mr Lawton earlier in the day.
Q. Did you do anything about that?
A. No.
POTTS
Q. You didn't write back and say, "No, you misunderstood what we discussed", did you?
A. No.
Q. You did not write [b]ack and say, "Thank you for meeting with me. I am comforted you have give[n] me security of tenure" did you?
A. No.
Q. And that is because it did not happen?
A. That is not correct.
87Mr Turner did not strike me as someone who was afraid to speak his mind, for fear of offending the person to whom he was speaking. On the contrary, if Mr Turner's account of his various conversations is to be accepted, he was forthright in asserting, and in seeking clarification of, what he understood to be his rights. It is unlikely that Mr Turner would have refrained from replying to Mr Lawton's email, had he thought when he received it that it involved some misunderstanding or misstatement of the effect of his discussions with Mr Lawton earlier that day.
88In my view, the email is consistent with Mr Lawton's evidence on this point, and Mr Turner's failure to reply to it is inconsistent with his account of the conversation.
89I do not accept that there was a conversation on 12 November 2009, dealing with security of tenure, as asserted by Mr Turner in his affidavit.
Conclusion on estoppel case based on representations
90Consulting has failed to make good its case of estoppel by encouragement, insofar as that case is based on representations at the meetings pleaded and particularised, and for that matter, at the other meetings referred to in the evidence.
Estoppel case based on standing by with knowledge of activities
91Consulting also alleges that, with Maritime's knowledge, it carried on its business on and from lot 7 over a number of years, and spent money on "improving" lot 7 and for other purposes associated with its business. Consulting alleges that Maritime, by failing to intervene, acquiesced in Consulting's so acting, knowing (or in circumstances where it ought to have known) that Consulting was so acting because it believed that it had, or would get, security of tenure by way of a long term lease.
92One difficulty with this aspect of Consulting's case is that the argument that Maritime knew or ought to have known that Consulting believed it had, or would get, a long term lease is based on the various representations that I have dealt with already. Since I have concluded that none of those representations was made, the factual basis for the asserted knowledge (actual or imputed) falls away.
93In any event, this aspect of Consulting's case is not made good. It was Constructions that occupied lot 7, and carried on business on and from it, up until October 2008. Mr Turner said that when Constructions was placed into liquidation and Consulting took over the business, all creditors (including Maritime) were notified. The evidence as to notification is less than cogent. What is clear from Maritime's records is that it regarded Constructions as the occupant, or lessee, for some time after October 2008. It was not until 21 June 2010 that Maritime's records were updated to note that it was Consulting and not Construction that was the occupant of lot 7. Up until then, invoices for "rent" and statements of account were issued by Maritime to Constructions. There is no evidence that, after the notification alleged to have been given by circular letter in late October 2008, Consulting ever took issue with Maritime about the way in which invoices and statements of account were addressed, not to it but to Constructions.
94Mr Sneddon did rely on the fact that, from time to time after October 2008, Mr Turner wrote to Maritime on the letterhead of Consulting. One such letter, dated 27 March 2009, is in evidence. The letterhead is of "Harbour Port Consulting (Marine Construction)". Mr Turner signed it over the words "Harbour Port Consulting". The email reply to that letter, from Ms McDonough of Maritime, stated as the subject "Harbour Port Construction - Woolooware Bay F#W00/54/8".
95Mr Turner replied to that email, on the letterhead of "Harbour Port Consulting Pty Ltd (Marine Construction)". He signed his name over the words "Harbour Port Consulting Pty Ltd".
96The subject of the correspondence was the amount payable by way of occupation fee or rent for the use of lot 7. Ms McDonough had sought a copy of the relevant agreement. Mr Turner sent to her the offer of licence term sheets which, as I have said, referred to the licensee as him "T/a Harbour Port Constructions Pty Ltd". Mr Turner's letter sending the offer of licence terms sheets to Ms McDonough did not make any reference (apart from what might be gleaned from the wording of the letterhead and the way in which Mr Turner signed it) as to the change in identity of the entity in occupation and use of lot 7.
97I accept that it was not until June 2010 that Maritime actually became aware that Consulting, rather than Constructions, was occupying and using lot 7. Perhaps, the letters to which I have referred (and others in the evidence) should have put it on inquiry at some earlier time. The reality, I think, is that in a practical sense Maritime dealt with Mr Turner, and did not concern itself overly as to the entity or entities through which he conducted his business on lot 7.
98Be all that as it may, the evidence as to work carried out or expenses incurred by Constructions is sparse; and that relating to expenses incurred by Consulting is sparser still.
99In 2004, Constructions bought a shipping container which it used as a shed and storage facility on site. Later in 2004, Constructions erected a shelter over part of lot 7, using tarpaulins attached to that shipping container. In early 2005, Constructions bought another shipping container and placed it on the site.
100In June 2006, Constructions arranged for a concrete slab to be laid over the front portion of lot 7. Mr Turner said that he spoke to someone from Maritime later in 2006, about "putting a proper roof up here". The unidentified officer of Maritime is said to have authorised that and to have requested that a fence be put up on the boundaries. Those works were carried out.
101Again in 2006, according to Mr Turner, Constructions bought yet another shipping container to place on lot 7. The evidence is unclear as to whether there were in fact two or three containers bought, but nothing really turns on this. A little later in 2006, Constructions arranged for "a factory shed" to be built on lot 7. Elements of that shed were welded to one of the shipping containers that had been placed on the site. At the same time, there were constructed an office and storage area, work benches and the like.
102Mr Turner said, and I accept, that those improvements were "readily visible to any visitor on the site," and that no one from Maritime complained about them.
103Mr Turner said that on or after January 2008, and in reliance on assurances as to security of tenure, Constructions undertook the purchase of a bobcat excavator, and, in conjunction with another lot holder, the purchase of a yard crane and a crawler crane. The assurances on which Mr Turner claimed to have relied were identified, in his evidence in chief, as those said to have been given by Ms Perez (or perhaps Mr Lawton) in the telephone conversation of 8 or 31 January 2008. For the reasons that I have already given in relation to that alleged conversation, I find that no assurance as alleged was given.
104As I find below in dealing with Consulting's activities based on reliance, all those activities were undertaken before, on Mr Turner's evidence, there was any discussion with representatives of Maritime about security of tenure. I should say that I regard Mr Turner's attempts to suggest otherwise in cross-examination as, at best, disingenuous. For present purposes, however, the significant fact is that those activities were undertaken by, and presumably at the expense of, Constructions.
105Mr Turner sought to suggest that Consulting had paid for the benefit of those works by making some payment for the business when it took it over from Constructions in October 2008. I do not accept that evidence. The liquidator's summary of the assets and liabilities of Constructions as at 13 November 2008 showed that the only asset was "cash on hand" of $5,500.00. It attributed no value to the business. When the liquidator prepared his final accounts in June 2009, he detailed the only receipts as being two payments received from Mr Turner. One payment, in the sum of $5,500.00, was made on 24 November 2008. The other, of $6,600.00, was made on 27 February 2009. Each was described as:
Monies Received Pursuant to Indemnity
106Some attempt was made to suggest that those payments represented payments for the value of the business. I do not accept that. On the face of the liquidator's records, the payments were made by Mr Turner, not by Consulting. Further, the description of them as payments made pursuant to an indemnity is, if not inconsistent, at least not consistent, with their having been payments for the business taken over.
107Accordingly, in my view, any evidence of detrimental reliance on the part of Constructions - and for the reasons I have given none of the payments to which I have referred can amount to detrimental reliance, because they were not made on the fate of any representation as to security of tenure - is irrelevant to Consulting's position and rights.
108The only evidence of any expense incurred by Consulting after October 2008 relates to the acquisition of a "dumb barge" in mid 2009. Mr Turner said that he agreed with a Mr Peter Geddes of Hunter Wharf and Barge (HWB) to purchase that dumb barge for use in joint venture work involving both companies, and otherwise to be used by them individually as needed.
109The cost of the barge - a little in excess of $60,000.00 - was invoiced to HWB. There was no evidence that any contribution towards that cost had been made by Consulting. (Mr Turner had dealt with this topic, in a brief, and entirely conclusory and unsatisfactory way, in a paragraph of his affidavit to which objection was taken and which was rejected.)
110Mr Sneddon submitted that I could infer payment from the fact that Mr Turner had said, without objection, that the barge was "jointly purchased". I do not see why the court should draw inferences in favour of a party who could have proved the point from its own records, but failed to do so. But even if that inference were to be drawn, there is no evidence that anyone from Maritime was aware of the existence of the barge, or that it was in whole or in part an asset of Constructions. There is no evidence as to where the barge was regularly moored, or as to where (if not moored) it was stored on land. (The barge was designed to be transportable by land, and it may perhaps be inferred from that that it could have been stored either at the premises of HWB or somewhere on or adjacent to lot 7; but there was no evidence supporting this latter possibility.)
111Thus, even if that "purchase" had been made in reliance on any assurance as to tenure - and for the reasons that I give below, I do not find that it was - there is no evidence that anyone from Maritime knew that the barge had been purchased, or that Consulting had some interest in it.