John Hillam v JPSF Pty Ltd

John Hillam v JPSF Pty Ltd - [2017] NSWSC 1510 - NSWSC 2017 case summary — Zoe

[3]

Background Facts

On or about 17 May 2010 Mr Hillam, the Plaintiff, entered into a registered lease AD528196H of a commercial office space at the Premises, from its then registered proprietor Bonhil International Pty Ltd (the Bonhil Lease) (CB 214-229). The Bonhil Lease was for six years, being three years with an option to renew for a further three years (JH2 [3]).
The Bonhil Lease expired in March 2016, and since then Mr Hillam was holding over under the Bonhil Lease on a month to month basis for a monthly rental of $6,868.93.
In March 2017 the Defendant, JPSF Pty Ltd (JPSF), purchased the Premises. Dr Joseph Pollak is the sole director of JPSF.
On 6 March 2017 Dr Pollak sent an email to Mr Damon Lockhart of LJ Hooker Commercial Sydney (LJ Hooker) indicating he had purchased office space in York Street which included the Premises leased by the Plaintiff. In his email of 6 March he indicated with respect to the Plaintiff that the place was 142 square metres and the Plaintiff had written indicating he wanted to stay on as a tenant.
On 17 March 2017 at 10.26am Dr Pollak sent an email to Mr Lockhart indicating the purchase of the relevant premises had settled two days ago, and requesting a meeting in order to provide Mr Lockhart with some documents. It was suggested the meeting would take place at 2pm that day.
On the same day at 1.07pm Dr Pollak forwarded certain documents to Mr Lockhart. It is not certain whether a meeting took place.
On 15 March 2017 Jason Lei lawyers wrote a letter directed to the tenant/Suite 30A level 13 with the purpose of informing "tenant" to whom the letter was addressed that the property had been sold by Bonhil to the Defendant JPSF. It requested all future rental payments be made to the purchaser JPSF Pty Ltd or as directed. Mr Hillam did not recall receiving such a communication.
On 20 March Mr Lockhart alleged he prepared a document bearing that date to be provided to Mr Hillam for the purposes of informing him that LJ Hooker had been appointed managing agent for the property and indicating new bank account details for the purposes of future payments of rent (20 March appointment letter).
Mr Lockhart asserted he attended at the offices of Mr Hillam on that day in company with a Ms Selina Mao, financial accountant at LJ Hooker (Alleged 20 March Meeting). He further alleged he handed Mr Hillam a copy of the 20 March appointment letter and had a brief conversation with Mr Hillam.
Mr Hillam accepted he received the 20 March appointment letter on or about the date that it bears. His employee Ms Ren alleged the letter was received in the office around about the date it bears, but it was in an envelope which he opened. Another employee, Mr Tong, alleged he was handed the letter by Ms Ren in the office again on or about 20 March.
On 21 March Mr Lockhart forwarded to Dr Pollak suggested "Heads of Agreement" for his review (CB 647-8).
At 4.40pm on 24 March Dr Pollak sent proposed lease documents back to Mr Lockhart requesting they be sent to Mr Hillam "today" (CB 650-668).
On the same day at 4.50pm Ms Mao purported to send those documents to Mr Tong but the email address shown at the top of the email was clearly erroneous (Exhibit P1). The email was tony.tony@wentworthmetals.com rather than tony.tong@wentworthmetals.com. Notwithstanding this error, there was no automatic bounce back of the email (T69/42-45).
On or about 27 March one of Mr Hillam's companies, Roncane Pty Ltd, exchanged contracts with the vendor for the purchase of 84 Pitt Street for $1.9 million. On exchange, another of his corporate entities, Australian Tailings Group Pty Ltd, transferred $178,710 to the trust account of the solicitors for the vendor.
Mr Hillam alleged that when he met with Mr Lockhart it was either 28 or 29 March 2017 (Alleged 28/29 March Meeting). He alleged the conversation which took place between him and Mr Lockhart amounted to a binding oral agreement. I will return to this in due course.
On 30 March the Plaintiff instructed his staff to pay monthly rent to JPSF at the same rate as under the Bonhil Lease, being $6,868.93, into LJ Hooker's account.
On 6 April at 2.21pm Ms Mao again sent to Mr Tong an email which proposed a lease agreement (Proposed Lease) as attached to the email (CB 98). However, again it appears Ms Mao used the wrong email, this time addressing it tony.tong@wentworth.com.au. According to Mr Tong, Ms Mao called Mr Tong to check whether he had received the email attaching the Proposed Lease, at which point Mr Tong clarified his email was "@wentworthmetals" not "@wentworth" (Affidavit of Mr Tong dated 15 August [8]-[9]).
Subsequently, at 3.07pm on 6 April, Ms Mao forwarded the 2.21pm email to Mr Tong's correct email address, attaching the Proposed Lease and a suite of related documents (CB 475 - 476) (Ms Mao's 6 April Email).
The Proposed Lease offered was for 12 months at a monthly rent of $7,691.67 (being $650 per square metre) and with a commencing date of 1 April 2017. Ms Mao requested in the 2.21pm email (which had been forwarded in the 3.07pm email) the Proposed Lease be sent back "ASAP". It is common ground however that it was not sent back at this point.
Relevant aspects of the Proposed Lease include: 1. The execution "block" of the Proposed Lease indicated JPSF P/L would execute the lease pursuant to s127 Corporations Act 2001, with the signature of Joe Pollak holding the office of "Sole Director/Secretary"; 2. Clause 6 of Annexure A to the Proposed Lease provided: "This deed of lease will have no effect until it is executed by both parties"; 3. Clause 17.2 provided "on or before the commencement date of this lease the lessee will deliver the security deposit to the lessor." Bank Guarantee is identified in the Schedule to the Proposed Lease as "Nil." 4. Clause 8.1.1 provided the lessee must keep current a public liability insurance policy of $20,000,000.
On 12 April LJ Hooker on behalf of JPSF, having received no communication of acceptance from Mr Hillam, sent an email indicating the Offer to Lease documentation was withdrawn (CB 117).
On the same day at 12.15pm Ms Mao sent a notice to quit to Mr Hillam (CB 118). The notice required Mr Hillam to vacate the Premises on or before 16 May 2017. The notice to quit was signed by Dr Pollak.
At the time Mr Hillam was on a driving holiday. During a short break he read the email from Ms Mao and responded on the same day at 1.17pm (CB 119). Amongst other things he queried whether the notice was consistent with "our lease". He also indicated that he had purchased another property.
On 28 April when he returned from holidays, Mr Hillam purported to accept the terms of the Proposed Lease by having Mr Tong forward a signed copy of the lease to Ms Mao at 1.08pm. Ms Mao immediately forwarded the documentation to Mr Lockhart.
On 1 May 2017 by way of a "Without Prejudice" communication Mr Lockhart acknowledged receipt of the signed lease (CB 557). He indicated that provided a security deposit of $25,382.50 was paid and provided there was evidence of public liability insurance as referred to in the lease together with a difference in rent in April, the landlord was prepared to "give consideration to entering into the lease and withdrawing the notice of quit".
On 5 May 2017 Mr Hillam paid JPSF the difference in rent between the "holding over" rent and the rent specified in the Proposed Lease.
On 18 May solicitors on behalf of JPSF wrote to Mr Hillam (CB 124). They indicated Mr Hillam was occupying the Premises on a monthly basis and that by Friday at 5pm 19 May the Defendant required the security deposit indicated and public liability insurance in place of $20 million such details to be provided to LJ Hooker.
At 4.55pm on 18 May Mr Hillam responded (CB 125). He indicated he had signed the Proposed Lease more than a month ago and was awaiting an executed copy in return. He indicated he wished to resolve the matter and would issue a bank guarantee for $25,000 as opposed to what was described as a security bond or deposit. He also indicated an insurance certificate could not be issued as required until an executed lease was provided by the Defendant.
Mr Hillam continued to attempt to resolve insurance issues. On 19 May Mr Hillam purported to provide JPSF with proof of public liability insurance (CB 127).
On 22 May solicitors on behalf of JPSF wrote to Mr Hillam indicating that the certificate of currency was inadequate as it did not cover him as occupier and further that the security deposit had not been provided (CB 130). He was reminded the tenancy was terminable on one months' notice. Attached was a notice to quit again signed by Dr Pollak indicating the Defendant was to vacate the premises by 30 June 2017 (CB 131).
On or prior to 24 May Mr Hillam consulted with Mr Damien Perrignon, barrister, for the purposes of preparing a draft letter which it was proposed would be sent to Mr Baxter of Blanchfield Nicholls Partners. A letter was indeed sent on behalf of Mr Hillam on 25 May 2017 to the solicitors for JPSF.
A further attempt to resolve issues culminated in a letter being sent by WKA Legal in an attempt to resolve issues. That attempt was unsuccessful.
On 27 June 2017 JPSF's solicitors required Mr Hillam to vacate the Premises by 30 June 0217 (CB 171).
On 30 June 2017 the Court made orders allowing Mr Hillam to remain in occupation pending a determination of his Summons, provided Mr Hillam acted in accordance with the lease he asserted, including as to rent, and upon the 'usual undertaking as to damages.'

[4]

Intention to create a binding agreement

The question of whether parties intended to bind themselves to a contract is to be determined objectively, having regard to the intention disclosed by the language the parties have employed: Masters v Cameron [1954] HCA 72; 91 CLR 353 (Masters v Cameron) at 362. The commercial context and surrounding circumstances of the parties' dealings are relevant considerations in reaching this objective determination; Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548 (ABC v XIVth Commonwealth Games).
While not strict nor prescriptive, the categories of cases set out by the High Court (Dixon CJ, McTiernan and Kitto JJ) in Masters v Cameron at 360-362 are an instructive starting point in determining the binding nature of a parties' agreement which was, or was to be, recorded in writing: Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.
While not relevant to these proceedings, a fourth category was identified by McLelland J in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 628: … one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms.
In Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605, Universal's solicitor had emailed a draft deed in "final form of execution" to the Mr Pavlovic's solicitor, and while Mr Pavlovic did not sign the deed, his solicitors indicated unequivocally he would sign it. The Court of Appeal held, with regard to communications between the parties in their context and the parties' dealings over the time leading up to the making of the alleged contract, the parties intended not to be bound until both sides had signed and exchanged the documents. The Court of Appeal also found there was not sufficiently clear or cogent evidence Pavlovic's solicitor had authority to bind his client to the terms of the draft deed.
The Court of Appeal (Beazley P with whom Meagher JA agreed) also noted at [118], consistent with ABC v XIVth Commonwealth Games, that the Court may have regard to subsequent conduct of the parties in determining whether, at an earlier time, the parties intended to enter into a binding agreement.
The Plaintiff also referred me to the decision of Bryson J in Napatarra v Perpetual Trustee [1999] NSWSC 750 at [8]: Disputes about whether negotiations for a lease for commercial premises have reached the stage of a binding contract come before this Division quite often, and it is a recurring source of difficulty to know at what point the parties intended to be contractually bound when they first discussed and came to agreement on the most important aspects of a contemplated leasehold relationship and then turned to preparing a formal document dealing with the whole subject, with much fuller expression and in registrable form. The difficulty is formalised in the classification in the judgment of Dixon CJ McTiernan and Kitto JJ in Masters v Cameron (1954) 91 CLR 353 at 360; the plaintiff contended that the agreement made by this letter falls within the first class - "... the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect." …. In Dellwest Pty Ltd v Cafabe Pty Ltd (Bryson J) Unreported 26 November 1997, p7 I said: "Counsel referred me to Arjay Investments Pty Ltd v Morrison's Outdoor Catering Pty Ltd (Young J 1 May 1995 unreported) at p4 and p5 where his Honour set out guidelines to assist in coming to a conclusion as to whether there is a binding agreement arising out of commercial correspondence. The dominance of the facts of the present case is such that, in my opinion, guidelines and normal expectations are of little value. Judges of the Equity Division have, I think it is right to say, approached allegations that there has been an agreement to grant a commercial lease with the knowledge that commercial practice is that a binding relationship is made at the point of execution and delivery of the lease. However that is no more than an approach, as it is quite open to persons in negotiation for a commercial lease to proceed as they choose and to make an agreement for lease in an informal way, by correspondence or orally; if they do come to an agreement in that way the Court must recognise that this is so and act on their agreement." See too Arjay Investments Pty Ltd v Morrisson's Outdoor Catering Pty Ltd (Young J) Unreported 1 May 1995 at p4. There is considerable gulf between taking this approach and reaching a conclusion on the facts of any particular case, as the conclusion must be dominated by those facts.

[5]

Oral contracts

The principles relevant to determining whether parties intended to bind themselves in an oral contract are set out by Hammerschlag J in John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [93]-[94] [93] A binding agreement is made when a reasonable person would believe that, based on their words and behaviour, the parties intended to contract. This is an objective test, which in most cases can be administered by determining whether there has been an offer by one party to be bound on certain terms accompanied by an unqualified acceptance of that offer communicated by the other party to the offeror. See generally: Paterson, Robertson, and Duke, Principles of Contract Law, (4th ed 2011, Thomson Reuters) at [1.15] and [12.10]; J W Carter, Contract Law in Australia, (6th ed 2013, LexisNexis Butterworths) at [3.06]. [94] Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman (1995) 49 NSWLR 315 at 319.
McLelland CJ in Equity's remarks in Watson v Foxman (1995) 49 NSWLR 315 (Watson v Foxman) at 318-319 are also relevant in dealing with assertions of an oral agreement binding the parties to legal relations: Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence".

[6]

Authority to bind

Section 126 of the Corporations Act 2001 (Cth) provides a company's power to make contracts may only be exercised by an agent acting with express or implied authority and on behalf of the company.
In Markson v Cutler & Anor [2007] NSWSC 1515 Brereton J stated at [7]: … appointment as a real estate agent does not confer authority to bind the vendor to anything. A real estate agent has authority to find a purchaser, not to bind the vendor to terms with the purchaser. So much is made clear by high authority, such as Brien v Dwyer (1978) 141 CLR 378, 387 (Barwick CJ), 395 (Gibbs J); Peterson v Maloney (1958) 84 CLR 91, 94-5; and Sorrell v Finch [1977] AC 728, 753.
His Honour also remarked at [8] in respect of ostensible authority: …So far as ostensible authority is concerned, an agent cannot by its own acts cloak itself with authority wider than the usual authority of an agent of the relevant class; some holding out or representation by the principal to cloak the agent with the relevant authority is required. The agent cannot create its own authority…
The principles of whether a person may have actual implied authority to act in a particular way can be gleaned from the judgment of Clarke and Cripps JJA in Equiticorp Finance Limited (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 at 132: Accordingly, where the question is whether the agent has implied authorityto act in a particular way the court directs its attention to the conduct of theparties in order to decide whether the inference of authority should bedrawn. Ostensible authority is quite different. The question then is whetherthe principal has held out the agent as having authority to act on its behalf.Obviously a principal may expressly hold out a person as its agent to act onhis or her behalf in a specific transaction but usually where this occurs therewill have been a grant of actual authority. On the other hand there may beno evidence of a grant of actual authority and yet the principal may have soacted as to hold out the agent as having the requisite authority. In manyinstances the circumstances which give rise to ostensible authority may alsoprovide a basis for inferring an actual grant of authority.

[9]

Timing of the conversation

The Plaintiff submits Mr Lockhart's account of his meeting with Mr Hillam on 20 March 2017 is inherently incredible given the fact the Defendant still sought to have solicitors draw up a lease even though Mr Hillam made it clear he was not interested in a lease. The Plaintiff submits it is possible Mr Hillam delivered the letter on 20 March 2017 without seeing Mr Hillam, and is simply reconstructing events based on that date.
The Plaintiff notes in contrast to Mr Lockhart and his hundreds of leased properties he was managing in March 2017, Mr Hillam was only concerned with two potential leases at the time so is more likely to remember the events of the meeting with Mr Lockhart. Further, Mr Hillam is able to date the conversation as being just after the exchanged contracts to purchase 84 Pitt St.
The Plaintiff further submits Mr Hillam's account is more plausible given Mr Lockhart was behaving in a manner consistent with the plan expressed by Dr Pollak in his 17 March email and at the meeting that same day between Dr Pollak and Mr Lockhart.
The Plaintiff also notes Mr Hillam's evidence is supported by the evidence of Mr Tong, and Mr Lockhart's evidence on the delivery of the 20 March appointment letter is contradicted by the evidence of Ms Ren. Further, the Plaintiff invites the Court to draw a Jones v Dunkel inference against the Defendant in light of its failure to call Ms Selina Mao and Dr Pollak.
The Defendant submits pursuant to Watson v Foxman, the Plaintiff has the onus of proving the conversations occurred in the way Mr Hillman said they did (Defendant's closing submissions [67]-[68]). On timing, the Defendant submits the date of the meeting between Mr Hillam and Mr Lockhart is not fatal to its case, but maintains there are several reasons why Mr Lockhart's account of the Alleged 20 March Meeting should be believed.
First, the Defendant notes according to Mr Hillam, a licence/lease in relation to Pitt Street had been arranged prior to the exchange of Pitt Street, so it could be sold as a going concern. However, by 22 March 2017 any lease was off the table. Therefore Mr Hillam may have still had the possibility of negotiating a lease with the vendor on 20 March, but after 22 March, and certainly by 28 or 29 March Mr Hillam knew he had no other premises until settlement of Pitt Street, rendering his comments "as I believed the position with the lease of the Premises had been sorted out, I did not pursue the early occupation of 84 Pitt St" not credible (Defendant's closing submissions [72]-[73]).
Secondly, the Defendant points to the illogicality of Ms Mao attempting to send a lease to Mr Tong on 24 March 2017 before anyone from LJ Hooker had met with Mr Hillam or obtained Mr Tong's contact details. It is also unlikely, according to the Defendants, Mr Lockhart visited Mr Hillam on 28 or 29 March without a copy of the lease document Dr Pollak had already instructed him to prepare, and further that Mr Lockhart would have said to Mr Hillam "I will prepare lease documents and send them to you," when they were in fact already prepared.
In response, the Plaintiff submits Ms Mao may have obtained Mr Tong's contact details from a visit on 20 March that did not involve a meeting with Mr Hillam, or by telephone. The Plaintiff also notes the sending of a lease to Mr Hillam is far more logical than the Defendant's position the lease was sent four days after a meeting with Mr Hillam where he unequivocally stated he was not interested in leasing the Premises. Further, it made sense to email the Proposed Lease to Mr Hillam if there had been no Alleged 20 March Meeting since Mr Hillam had emailed Dr Pollak in December 2016 asking to renew the existing lease, which Dr Pollak remembered as evidence in his email to Mr Lockhart on 6 March 2017 (CB 617) (Plaintiff's closing submissions in reply [5]).
The Defendant also notes Mr Tong agreed it was "possible" he did not remember the date of the meeting, and that he could not remember the exact time and date of when he was handed the 20 March appointment letter, but it could have been handed to him by Mr Hillam. Further, the Defendant notes Ms Ren does not assist Mr Hillam as she merely asserted she opened the 20 March appointment letter on an unspecified day when Mr Hillam was not there (Defendant's closing submissions [74]-[77]).

[10]

Content of the conversation

The Defendant submits several reasons why Mr Lockhart's account ought to be believed. First, the short length of the meeting, confirmed by Mr Tong, makes it unlikely the creation of a lease with various terms and conditions would have been arranged in that meeting, or a reasonable person would consider a quick discussion capable of creating an agreement (Defendant's closing submissions [82]).
In reply, the Plaintiff submits the matters Mr Hillam recalls taking place could have easily occurred in a meeting no longer than 10 minutes and is consistent with Mr Hillam's recollection of the meeting finishing quickly since Mr Lockhart needed to "rush" to see the other tenant (Plaintiff's closing submissions in reply [5]).
The Defendant also notes Mr Tong agreed Mr Hillam likely said to Mr Lockhart and Ms Mao "send anything to do with the property to Tony," and Mr Hillam asked him to hand over his card and asked "the two people" to send him the rent notifications.
The Defendant also submits Mr Hillam did not make any reference in communicating with JPSF to the conversation he alleged took place with Mr Lockhart until late June 2017. As an example, the Defendant points to the failure to mention Mr Lockhart in Mr Hillam's 12 April 2017 email after receiving a notice to quit and revocation of the lease, as well as his failure to call his solicitors, his office or Ms Mao when he received the email, despite allegedly believing he had a lease by reason of the Proposed Lease attached to Ms Mao's 6 April Email that he claims he signed on 8 April 2017. The Defendant also points to Mr Hillam's communication with Mr Perrignon and Mr Baxter, which further make no reference to Mr Lockhart (Defendant's closing submissions [85]).
In response, the Plaintiff submits Mr Hillam's 12 April email was evidently composed in haste whilst on holidays, and it is unsurprising in his communications with Mr Perrignon that the sending and execution of the written lease was the key event for Mr Hillam, as this came after the conversation and recording in writing the terms of the lease (Plaintiff's closing submissions in reply [7]).
The Defendant further submits Mr Hillam's account of the content of the meeting with Mr Lockhart is also incredible given the high unlikelihood a sophisticated businessman like Mr Hillam would have reached an oral agreement without determining the final rent figure of the "new lease" (Defendant's closing submissions [86]). The Plaintiff submits a formula such as $650 per square metre is sufficient to produce contractual certainty on the matter of rent and it was immaterial Mr Hillam did not personally conduct the calculation during the conversation (Plaintiff's closing submissions in reply [8]).
The Defendant submits as a matter of credit, Mr Lockhart ought to be preferred over Mr Hillam. The Defendant characterises Mr Lockhart as an independent witness, with no interest in protecting JPSF's position or authority to negotiate a lease with Mr Hillam (Defendant's closing submissions [87]). The Plaintiff submits Mr Lockhart is not independent as he is and was JPSF's agent (Plaintiff's submissions in reply [9]).
In contrast to Mr Lockhart, the Defendant characterises Mr Hillam as evasive and difficult in cross examination, feigning not remembering facts about key matters occurring around the time he entered into the lease, asserting his various lawyers did not follow instructions without calling those lawyers (i.e. Mr Baxter and Mr Perrignon) to answer to those allegations, and accepting Mr Tong was mistaken about matters. The Defendant also submits Mr Hillam asserted a number of incredible propositions, from not knowing the exact square metre area of the Premises, to not being able to recall the terms of the interest or security for the loan agreement and not being concerned on 1 May 2017 about funds coming through for the purchase of 84 Pitt St (Defendant's closing submissions [88]).
The Plaintiff submits Mr Hillam's difficulty as a witness should be attributed to quirks in his personality, rather than an indication of his being anything less than truthful. In respect of the "incredible propositions," the Plaintiff sets out why none of these propositions are in fact incredible. The Bonhil Lease did not specify the square metre area, and Mr Hillam could have asked someone if he needed to know for building or other purposes. Further, he was within 3% of the correct figure. Similarly, Mr Hillam made only "minor mistakes" as to the terms of the interest and security for the loan agreement. Finally, Mr Hillam "may" have been confident as at 1 May that a new loan agreement was just about to be executed, as it was in the form of the 15 May 2017 loan agreement (Plaintiff's closing submissions in reply [13]-[16]).

[12]

Nature of the "offer" or the agreement

The Plaintiff submits at the Alleged 28/29 March Meeting everything that had to be agreed between the parties had been agreed. The term was to be for one year, the annual rent was to be $650 per square metre, and the other terms were to be (mutatis mutandis) as per the previous lease. The Plaintiff submits given the Bonhil lease provided for monthly rental periods contiguous with calendar months, the implication was the "new lease" would commence on 1 April 2017. Thus, on the Plaintiff's submissions, there was nothing preventing the parties from entering into an immediately binding lease agreement (Plaintiff's closing submissions [48]-[50]).
The Plaintiff characterises the events of the Alleged 28/29 March Meeting as one of the first two categories of Masters v Cameron, giving rise to either an immediately binding agreement to be replaced by a formally documented agreement, or an immediate binding agreement to execute a later formal agreement (Plaintiff's closing submissions [53]).
The Plaintiff also notes the pre-existing relationship of landlord and tenant between the parties, submitting one can reasonably contemplate less formality required in their dealings. The Plaintiff submits this case can be seen as the parties merely varying the terms of an existing relationship rather than creating such a relationship anew (Plaintiff's closing submissions [60]).
The Defendant submits in addition to Mr Lockhart lacking authority, the Plaintiff's claim must fail as any oral statement was in law not an "offer" capable of acceptance, and even if it was an "offer," it was not accepted unconditionally by Mr Hillam before it was withdrawn by JPSF.
In submitting there was no statement amounting to a legal "offer," the Defendant relies on its submissions for why Mr Hillam's account of the content and date of the meeting with Mr Lockhart should not be believed, noting the Plaintiff has not discharged its onus of satisfying the Court of an "actual persuasion" of the alleged meeting's "occurrence or existence" pursuant to Watson v Foxman. On the Defendant's version of events, Mr Lockhart's words to Mr Hillman on 20 March 2017 can in no way be objectively construed as a legal "offer."
The Defendant submits that even if the Court were to accept Mr Hillam's version of events, the alleged terms are vague and uncertain, with no evidence of a commencement date for any proposed lease. There is no such thing as "standard lease terms," as Mr Lockhart allegedly told Mr Hillam he would prepare in the new lease, and thus even on Mr Hillam's version of the Alleged 28/29 March Meeting, the content of what was allegedly said would not satisfy the requirement of being objectively intended to be binding and capable of acceptance (Defendant's closing submissions [89]-[93]).

[13]

Section 23C(1)(a) and 54A(1)

The Defendant submits even if there was an "offer," this was conditional upon documentation in accordance with section 23C(1)(a) and 54A(1) of the Conveyancing Act 1919 (NSW). In the absence of any written and signed agreement between the parties, the Defendant submits the case falls into the "third category" of Masters v Cameron where the parties agreed there could not be a contract until they had executed a formal lease document (Defendant's closing submissions [94]-[97]).
The Defendant submits on Mr Hillam's version of events, both in his 28 June affidavit (at [16]) and his August affidavit (at [23]), documents remain contemplated by both parties (Defendant's closing submissions [98]-[106]).
The Defendant submits JPSF's position also makes clear an executed written document was required for the lease to be legally binding. The Proposed Lease sent to Mr Hillam from Mr Lockhart was for his "approval" and thus at that stage there was no belief Mr Hillam was bound by the lease. Further, JPSF's real estate agent Ms Mao emailed a written document expressly requiring "execution" of that document (CB 98), and clause 6 of Annexure A to the Proposed Lease makes clear the bargain would only be concluded upon both parties executing the document. The Defendant characterises Mr Hillam's act of signing the version of the Proposed Lease as an offer to JPSF, which was ultimately not accepted (Defendant's closing submissions [107]-[110]).
Section 23D(2) The Plaintiff submits, in response to the Defendant raising these provisions of the Conveyancing Act, that first only section 23C is potentially applicable since section 54A deals with disposition of an existing interest in land, rather than the creation of an interest in land as provided for in section 23C. However, the Plaintiff submits the exception in section 23D(2) is met in this case given the lease is for less than three years, effect has been given to the lease by Mr Hillam remaining in possession, and the evidence shows $650 was the best rent available for the Premises (Plaintiff's closing submissions [63]-[65]).
Part performance: Even if section 23D(2) is not enlivened, the Plaintiff submits the doctrine of part performance means section 23C does not render unenforceable the agreement to lease. The Plaintiff submits Mr Hillam's payment of rent on 5 May at the new monthly amount, his continued occupation in the Premises, and the fact JPSF forwarded a written lease according with the oral lease and retained the new rent payments are sufficient acts to displace section 23C (Plaintiff's closing submissions [66]).
The Plaintiff submits the status of the payment of rent on 30 March is immaterial given rent was paid from 5 May onwards at the rate of the new lease (Plaintiff's closing submissions in reply [21]).
The Defendant submits the acts of part performance asserted by the Plaintiff, namely continuing possession of the Premises and paying rent at the newly agreed rate, are not referable to "some such contract" as that alleged. The Defendant maintains there was no contract in respect of which part performance can be alleged as it was always subject to a formal written contract, meaning Mr Hillam's signature of the Proposed Lease was merely preparatory to the agreement (Defendant's closing submissions [125]-[129]).
In respect of each alleged act of part performance, the Plaintiff submits payment of money is insufficient, and in any case Mr Hillam continued to pay the "old" rent until 5 May despite being aware of the "new" rent from, at the latest, 6 April 2017 (Defendant's closing submissions [130]-[134]). The Defendant also submits staying in possession is an insufficient act of part performance since the lease was under the holding over or month by month tenancy and pursuant to the Court's injunction (Defendant's closing submissions [135]).
The Defendant also points to acts of non-compliance allegedly showing Mr Hillman objectively behaved as if there was no lease on foot, such as the fact Mr Hillman did not provide a security deposit until 8 August 2017 when it was meant to be paid on or before the commencement date of the Proposed Lease in April 2017 (see clause 17.2), and he did not seek the required public liability insurance (see clause 18.1) until 19 May 2017 (Defendant's closing submissions [136]-[143]).
The Defendant also submits Mr Hillam was uninterested in pursuing the lease of the Premises until sometime after 25 May 2017, when his confidence was shaken as to whether the loan he had deposited $170,000 would come through. According to the Defendant, Mr Hillam intended to move out of the Premises with the loans from In Touch Capital Ltd. Only once he became unsure about the loan in May 2017 and concerns grew about whether he could complete the purchase in June 2017 did he attempt to negotiate and/or assert a new lease with JPSF (Defendant's closing submissions [140]-[142]).
The Plaintiff submits this case theory is untenable since Mr Hillam emailed Ms Mao on 12 April disputing the notice to quit and LJ Hooker on 28 April with a signed copy of the Proposed Lease, paid the rent of the "new lease" on 5 May 2017, told the Defendant's solicitors via email on 18 May he had signed the lease and enquired about public liability insurance, and Ms Ren re-sent the Certificate of Currency in relation to that insurance on 23 May 2017 (Plaintiff's closing submissions in reply [22]).
Agreement in written form: The Plaintiff submits a further ground why section 23C is not enlivened is because the agreement exists in a written form signed by an agent of JPSF, being Ms Mao. The Plaintiff characterises the signature as the printed name of Ms Mao on Ms Mao's 6 April Email, acting as the cover letter to the lease, relying on the general law of signatures (see Re Byrne; Ex parte Norco Co-operative Ltd (1986) 15 FCR 255 (Re Byrne); Daniels v Trefusis [1911] 1 Ch 788 (Daniels v Trefusis); Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119) and section 9 of the Electronic Transactions Act 2000 (NSW) (Electronic Transactions Act). The Plaintiff submits section 9 is satisfied as Ms Mao is identifying herself and indicating an intention to sign the email by the inclusion of her name at the end of the email, the inclusion of those words is a sufficiently reliable methodology to be adopted as a method of signature and fulfilled the function of a signature, and Mr Hillam consents to Ms Mao's electronic signature being treated as a real signature (Plaintiff's closing submissions [67]-[73]).
The Plaintiff submits it is not suggesting Ms Mao's electronic signature was intended to be or was the type of signature required to formally execute the Proposed Lease in the manner of deed, but is suggesting the signature was sufficient for the purposes of section 23C to bind JPSF to an agreement to execute a lease in the form of the Proposed Lease (Plaintiff's closing submissions [74]). In other words, once Ms Mao's name on the email is accepted as equivalent to a signature of a cover letter, the principles in Re Byrne and Daniels v Trefusis apply to produce a sufficiently signed memorandum of the previous oral agreement (Plaintiff's closing submissions in reply [20]).
The Defendant submits the email from Ms Mao can in no way be construed as a signed written memorandum of an oral lease previously made, sufficient to satisfy the legislative requirements of section 54 of the Conveyancing Act. The Defendant relies on passages in Kation Pty Ltd v Lamru Pty Ltd (No 2) [2012] NSWSC 356 and Pirie v Saunders (1961) 104 CLR 149 (Pirie v Saunders) to support its claim there is nothing in Ms Mao's 6 April Email that is "recognizable as a note or memorandum of a concluded agreement." There is no reference to a lease already being made, the words "signed if you agreed," which the Defendant submits means "sign if you agree" are either an offer of a lease or an invitation to commence negotiating one, the lease attached contains clause 6 of Annexure A and an execution block for each party, with Dr Pollak required to sign on behalf of JPSF. Further, the lease sent by Ms Mao on 6 April 2017 was on different terms to the agreement said to arise from the Alleged 28/29 March Meeting (Defendant's closing submissions [111]-[120]).
The Defendant also submits section 9(1) of the Electronic Transactions Act has not been satisfied as there is no evidence Ms Mao had authority to represent JPSF, and there is also no evidence the method was a reliable methodology in light of clause 6 of Annexure A and the execution block requiring the signature of Dr Pollak on behalf of JPSF (Defendant's closing submissions [122]-[124]).
The Plaintiff in reply submits a memorandum of a concluded agreement need not make reference to any previous oral contract, nor does the memorandum need to be signed (such as in Re Byrne). Further, as reflected in Re Byrne, the authority to send a written agreement is sufficient to satisfy the requirements of section 54A. The Plaintiff also notes in Daniels v Trefusis the solicitor's signature on the covering letter was sufficient to make the attached unsigned documents a signed memorandum (Plaintiff's closing submissions [17]-[19]).

[14]

Written agreement

In the alternative, the Plaintiff submits that a binding agreement to lease came into existence when Mr Hillam signed the Proposed Lease on 8 April 2017. The Plaintiff characterises the sending of the Proposed Lease to Mr Hillam on 6 April 2017 as an offer by JPSF, capable of acceptance, and validly accepted, by Mr Hillam.
The Plaintiff notes an acceptor of an offer does not always have to inform the offeror of the acceptance, where the offeror specifies an offer can be accepted by the performance of a particular act. In this case, the Plaintiff appears to submit Ms Mao's covering email sent on 6 April 2017 attaching the Proposed Lease indicated Mr Hillam's signature would amount to sufficient acceptance (Plaintiff's closing submissions [77]-[80]). This is particularly the case given the Proposed Lease was not sent until 6 April, but its commencement date was 1 April (T149/31-36).
Further, the Plaintiff submits the commercial undesirability of entering into a binding agreement prior to communicating to one side that fact is overcome in this case given it would have been clear to JPSF Mr Hillam was going to sign the Proposed Lease, and having a binding agreement at the date of Mr Hillam's signature would mean the Proposed Lease would be binding closer to the operative date of 1 April 2017 (Plaintiff's closing submissions [81]-[82]).
The Defendant submits clause 6 of Annexure A of the Proposed Lease means the Plaintiff's characterisation of Ms Mao's email amounting to an offer cannot be accepted since JPSF was sending an invitation to treat. Even if the Court is to find an offer in Ms Mao's email, the Plaintiff submits Mr Hillam was still required to notify JPSF of his acceptance as JPSF had at no point indicated Mr Hillam's mere signature on the Proposed Lease was sufficient to bind the parties (Defendant's closing submissions [145]-[150]).
The Defendant labels the Plaintiff's interpretation of Ms Mao's email as a "ridiculous interpretation," and further notes it is inconsistent with the conduct of Mr Hillam who told his staff to send a copy of the lease to JPSF (Defendant's closing submissions [151]-[152]).
The Defendant further notes JPSF withdrew its offer to Lease on 12 April 2017, prior to Mr Hillam's communication of acceptance on 28 April 2017, and as an offer may be withdrawn any time before acceptance, there is also no contract on these grounds. The Defendant submits if the Court considers the 6 April Email is nonetheless an offer capable of being accepted by mere signature, then Mr Tong's evidence and the letter of Mr Hillam's solicitors dated 26 June 2017 should satisfy the Court it was not executed until 28 April 2017 (Defendant's closing submissions [155]).

[16]

Evidence of Mr John Hillam

For the purposes of the proceedings Mr Hillam swore four affidavits. One dated 30 June (JH1), another 11 August (JH2), another 17 August (JH3) and the last 15 September 2017 (JH4). Mr Hillam also swore an affidavit dated 28 June 2017 which the Plaintiff did not seek to rely on, but which the Defendant tendered paragraphs [16]-[18] of (Exhibit D9).
His affidavit of 30 June recorded a number of dates when rent was paid and/or a bank guarantee in favour of the Defendant was forwarded by his solicitors WKA legal for the solicitors to the Defendant.
In his affidavit of 11 August he set out the history of the original lease with the then landlord Bonhil International Pty Ltd. He described the premises and the fact that he has four full time employees who work at those premises (JH2 [3]-[5]).
Mr Hillam indicated that shortly after he entered the lease with Bonhil he paid approximately $80,000 to install partitioning in the premises (JH2 [7]).
After the Bonhil Lease expired he said he continued to pay rent at the rate of $6,868.93 per month to Bonhil's managing agent Noonan Property (JH2 [10]).
He recalled Bonhil sold the Premises to the Defendant in the latter part of 2016 and he attended the auction (JH2 [11]).
Mr Hillam accepted on or about 20 March 2017 he received a letter form LJ Hooker indicating they had been appointed managing agent for the Premises (JH2 [13]).
He asserted it was not until 10 August 2017 that he was provided with a copy of a letter from Jason Li Lawyers of 15 March 2017 (JH2 [14]).
Mr Hillam said that from about late January 2016 through to February or March 2017 he was looking for alternative premises for his business (JH2 [15]).
On 27 March 2017 a company of which he is the director, Roncane Pty Ltd exchanged contracts with Baetex Pty Ltd for the purchase of another commercial property at 84 Pitt Street, Sydney which was vacant (JH2 [16]).
He was ready he said to finalise this agreement with the vendor and give immediate notice to the Defendants to quit the premises. However on either 28 or 29 March he asserted Mr Lockhart of LJ Hooker attended his premises. They had a conversation in which Mr Lockhart indicated that the landlord wished to lease the property for a year at a price of $650 per square meter (JH2 [20]-[21]).
Mr Hillam said he expressed surprise at the increase however Mr Lockhart explained why he thought the increase was justified. Mr Hillam said he implied during the meeting to the effect that he would be happy to lease for a further year. Mr Lockhart said he would prepare the lease documents but he had to leave to see a tenant next door. Mr Hillam asked what the other terms would be to which Mr Lockhart responded "they will be standard lease terms. Similar to your current lease." Mr Hillam said he agreed and asked that the lease be sent to him (JH2 [21]-[23]).
Thereafter Mr Hillam continued to pay the old rent and not rent calculated on the basis of $650 per square metre because he said he did not know precisely what the area was. He expected a tax invoice in due course with the correct amount and then he would pay the difference he said (JH2 [24]).
Mr Hillam went on holidays on or about 10 April but in the meantime he received a written lease agreement under a cover of an email from Ms Selina Mao. He said he went into the office on Saturday 8 April prior to leaving for holidays and signed the lease instructing his staff to return it to LJ Hooker (JH2 [27]-[32]). He did not indicate precisely how instructions were given, or which member of his staff had been instructed.
However on 12 April he received an email from LJ Hooker purporting to give him a "Notice to Quit". He was on his driving holiday at the time and in a brief break he sent an email back to LJ Hooker of the same day (JH2 [33]-[39]).
Upon his return from leave he said he discovered the lease that he had signed had not been sent back to LJ Hooker. On 28 April he said he telephoned Ms Mao who requested that he send a signed copy of the lease. He said he did so on the same day (JH2 [40]-[42]).
He agreed on 1 May he received a letter from LJ Hooker. On 5 May he asserted he paid the balance of the rent under the lease for April as the whole of the rent for May as stated in the lease. He then asserted that he sent further correspondence including a certificate of currency of insurance but nonetheless on 22 May received a further Notice to Quit. Mr Hillam asserted a letter sent by Mr Baxter purporting to be on his behalf of 25 May would not have been sent had he been given an opportunity to read it. It did not reflect his belief as to the agreement he asserted he had come to with Mr Lockhart (JH2 [43]-[51]).
Despite being requested to provide a security deposit Mr Hillam asserted that between 6 April 2017 and "only just recently" he did not appreciate the distinction between a bank guarantee and a security deposit (JH2 [59]).
In his affidavit of 17 August amongst other things Mr Hillam referred to the fact that on or about 23 May 2017 he engaged Mr Perrignon of counsel to prepare some document for Mr Baxter (JH3 [6]). He said upon receiving a suggested draft from Mr Perrignon he did not take the time carefully to read the background letter to Mr Baxter or the draft of the letter sent to the Defendant's then solicitors (JH3 [12]).
In his affidavit of 15 September he responded to numerous paragraphs of Mr Lockhart's affidavit and corrected some minor matters in his own. In particular he denied Mr Lockhart handed him any documents at the meeting he had with Mr Lockhart and Ms Mao (JH4 [4]). He asserted he saw the letter of 20 March from LJ Hooker shortly after 20 March and before he ever met with Mr Lockhart or Ms Mao. That letter he asserted was shown to him by Ms Ren and Mr Tong, persons in his employ (JH4 [5]). In addition he denied that he had the conversation asserted by Mr Lockhart to have taken place at his offices on 20 March 2017 (JH4 [6]).
Mr Hillam said in cross examination that his affidavits were prepared after discussions between himself and his solicitors having provided information to them (T27/35-40).
Mr Hillam agreed that he is a company director of 30, perhaps even 40 companies (T28/35-40).
The major company is Australian Tailings Group, also Wentworth Metals Group. All those companies are in a trust that is controlled by a trust (T29/1-6).
Mr Hillam agreed he had entered into various leases including mining leases and had been embroiled in an amount of litigation (T31/33).
Mr Hillam agreed that Roncane (a company controlled by him) entered into a contract for the purchase of 84 Pitt Street, for $1,965,810 (T34/35-39).
He paid a deposit of $178,710 on exchange of contracts (T34/40-44).
Mr Hillam agreed on 23 February he sent an email in the context of his proposed purchase of 84 Pitt Street which involved his attempt at negotiating the purchase price (T36/1-30).
Mr Hillam agreed that Roncane having paid the deposit of $177,000 odd dollars is attempting to have it returned as the sale did not go ahead. It was put to Mr Hillam that by 22 March no lease was on the table. He would not agree with that proposition (T43/35-45).
Mr Hillam said that when he received the notice to quit on 12 April he was on a driving holiday and he was very concerned such that he pulled over and sent a response to Ms Mao (T44/25-35).
He was asked about the text of his email of 12 April and disagreed that he was intending to indicate that he had purchased another property and would be removing the fixtures (T45/1-12).
Mr Hillam agreed he consulted a barrister, Mr Perrignon, who practised in Sydney, and he had asked him to give evidence. Mr Hillam said Mr Perrignon had agreed to assist, however Mr Hillam was not sure whether he asked Mr Perrignon to prepare an affidavit (T48/5-20).
Mr Hillam agreed that Mr Perrignon did prepare some draft letters (Exhibit D7) (T49/10-30).
Mr Hillam would not agree that he instructed Mr Perrignon to take out any reference to a new lease in the second draft. Further he would not agree that he did this because he did not wish to be bound for a year (T52/15-30).
When Mr Hillam discovered the terms of a letter sent by Mr Baxter he did not complain to him but he did complain to Mr Perrignon (T80/25-35).
Further he told Mr Perrignon and Mr Baxter he could not understand why they made changes to the second letter as they did so without Mr Hillam's instructions (T80/40-45).
It was put to Mr Hillam that he did not sign the lease for the Premises until 28 April. He did not agree with this proposition (T83/10-15).
Mr Hillam said he was concerned about whether funds would be received from London to settle on the purchase (T83/40-45). However he was prepared to take a risk that the deposit he had paid for the purchase of 84 Pitt Street might be forfeited (T84/20-35).
Mr Hillam asserted that he did not know the Premises the subject of the lease was 142 square metres. He thought it was only 138 square metres (T88/35-45).
Mr Hillam asserted that at the time he was discussing the lease he did not take any steps to determine precisely what the meterage was (T90/35-45).
Mr Hillam believed there was a new lease with a new rental but at the relevant time he did not instruct his staff to investigate and send the balance (T93/5-20).
It was put to Mr Hillam that the reason why he paid the difference in the rent and sought to provide public liability insurance was because he was hopeful the landlord would give consideration to entering a new lease. He disagreed with that and asserted that as far as he was concerned he had already entered into a lease so he was merely satisfying the terms (T94/1-20).
It was put to Mr Hillam that he received the letter of 20 March from Mr Lockhart who handed it to him on that day. He denied that suggestion (T99/10-15).
Mr Hillam agreed however that there was only ever one meeting with Mr Lockhart. Mr Hillam denied that any letter was handed to him except he did receive a business card (T99/20-25).
Mr Hillam however accepted that he was familiar with the contents of the letter of 20 March when he had his meeting with Mr Lockhart (T99/35-40).
Mr Hillam said he had a note book but he did not think he made any notes of the meeting (T99/45-47).
Mr Hillam said that neither Mr Tong nor Ms Ren had any diary. He placed the meeting at 28 or 29 March because it was after he had exchanged contracts which he believed was on 27 March (T100/1-15).
Mr Hillam was directed to an earlier affidavit (28 June) in which in a paragraph he had indicated that he could not recall what had been said during the meeting. Mr Hillam agreed that he could not remember a lot of things that were said but reiterated that Mr Lockhart had mentioned $650 a metre (T100/40-50).
Mr Hillam explained that the difference between his June and August affidavits was that he was asked more questions by his solicitor (T102/1-10).
Mr Hillam thought that even though a deposit of $177,000 had been paid for the purchase of proposed new premises he nonetheless thought it appropriate to negotiate an agreement for a new lease (T104/35-45).
Mr Hillam had some reservations at the time contracts were exchanged as to whether funds would be available but he thought most likely it would go ahead (T105/20-25).
Mr Hillam thought there were standard terms of a lease although in his experience not every lease he had entered was the same (T105/35-45).
Having looked at the email from Ms Mao dated 24 March Mr Hillam still rejected the notion that the meeting took place on 20 March with Mr Lockhart and Ms Mao (T106/25-35).
Mr Hillam agreed that the briefing letter to the solicitor Mr Baxter made no reference to Mr Lockhart or a conversation on 20 March (T107/20-30).
Mr Hillam agreed that when Mr Lockhart arrived he introduced himself and Ms Mao (T108/45-50).
Mr Hillam agreed that Mr Lockhart indicated that he had been appointed the landlord's agent and that the new owner would be happy to do a further 12 months lease. Mr Hillam insisted however that the figure of $650 per square metre was mentioned (T109/1-12).
A chronology was put to Mr Hillam. First he again denied that the relevant meeting took place on 20 March (T109/24-30).
Mr Hillam agreed he paid rent on 30 March but not at the new rate because he did not know how much he was to pay (T109/35-50).
Mr Hillam said there was an agreement although he did not know how much rent to pay and part of the reason why he did not was because he was unsure about how many square metres his office space comprised. He could have had Mr Tong ring but he did not make such enquiries as to the size of the Premises (T110/25-45).
Over all the years Mr Hillam had leased the Premises he thought he was leasing 138 square metres but he never made any enquiry as to the precise size (T111/15-30).
He agreed in his email of 12 April to Mr Mao that he made no reference to having signed a lease as he alleged (T112/15-30).
As at 12 April he believed that the purchase of 84 Pitt Street would occur before the end of June (T113/20-25).
Mr Hillam agreed that although he intimated that in his 12 April email he would refer the matter to solicitors he did not do so on that day. Nor did he send a copy to Mr Perrignon, nor when he returned from holidays did he refer it to his lawyers (T114/1-20).
Mr Hillam rejected the suggestion that on 28 April he had Mr Tong sign the lease document and send it because he was no longer confident that the purchase of his new premises would go ahead. He denied suggesting that he had signed it on 8 April and asked Mr Tong to forward it to Ms Mao but he had not done so (T114/20-35).
Mr Hillam agreed that he did say in his briefing note to Mr Baxter that he would prefer to enter into a new lease in addition to purchasing a new premises (T115/20-35).
Mr Hillam agreed by 20 June the vendor of 84 Pitt Street rejected his request for an extension of time and terminated the agreement (T116/5).
It was put to Mr Hillam again that the conversation he deposed to with Mr Lockhart never occurred. He again rejected this and said such a conversation took place on 28 and 29 March (T116/15-25).
Mr Hillam agreed that the reason why there was no reference in the materials prepared by Mr Perrignon to the conversation with Mr Lockhart is that he must have forgotten to tell him (T117/35-45).

[17]

Evidence of Mr Yudong (Tony) Tong

Mr Tong affirmed two affidavits, one of 15 August (YT1) and the second of 15 September 2017 (YT2).
In his affidavit of 15 August he said that on or about 29 or 30 March he recalled two people coming into the office. One was a Caucasian man and the other was an Asian woman. He saw the two people go into the board room. The meeting appeared to last about ten minutes. Mr Hillam came out of the boardroom followed by the man and the woman and asked whether he would give these people some business cards (YT1 [3]-[7]).
On 6 April a person telephoned him in the office and introduced herself as Selina Mao. She asked for the details of his email address. Within a few minutes an email was received which had attached to it a proposed lease (YT1 [8]).
In his affidavit of 15 September Mr Tong said that he agreed receiving and filing the original LJ Hooker letter of 20 March. He could not remember the exact time and date but he recalled the letter was handed to him at work by Ms Ren. Prior to affirming his affidavit he said he looked at the file and the original letter and noticed it had been folded in three as if it had been delivered in an envelope (YT2 [6]-[7]).
He asserted he had not received any email from Ms Mao on 24 March 2017. The first he had received was 6 April (YT2 [8]).
Mr Tong said in cross examination he had been working with Mr Hillam since 2012. Mr Tong agreed that in giving evidence he needed to support Mr Hillam's version of events (T20/1-4).
Mr Tong said he did his best to recall what he could remember. It was put to him that he might be wrong and that the two people he described were in the office on 29 or 30 March. He would not agree with that proposition, although he could not be sure of the exact date (T20/10-40).
He agreed it was possible that he did not remember the date of the particular meeting (T21/1-3).
It was put to Mr Tong that Mr Hillam did not mention a lease at this point. However Mr Tong said that he did recall Mr Hillam saying something about a lease (T21/35-40).
Mr Tong agreed that when Mr Hillam came out of the boardroom with the two people he was asked to hand over a business card and he also asked the persons to send them the rent notifications. He agreed with this proposition (T22/40-45).

[19]

Evidence of Mr Damon Lockhart

Mr Lockhart swore one affidavit of 4 September 2017 (DL).
Mr Lockhart is a licensed real estate agent. He asserted that shortly before 20 March 2017 LJ Hooker was appointed the real estate agent for the Defendant. An Agency Agreement was signed recording the terms and conditions of that Agency Agreement (DL [2]).
He received an email from Dr Pollak on 17 March 2017 suggesting a meeting. Mr Lockhart then said he met with Dr Pollak in which they discussed the possibility of the tenant signing for another year (DL [3]-[5]).
On 20 March 2017 he said he attended the offices of Mr Hillam in company with Ms Selina Mao. He introduced himself to Mr Hillam and handed him the letter dated 20 March 2017. He then said he informed Mr Hillam that the new owner was happy to do a lease for 12 months to which Mr Hillam indicated that he wished Mr Lockhart had come around earlier because he was looking to buy a property and move in. Mr Lockhart said he would let the owner know. Mr Hillam then asserted that he had spent a lot of money on the fit out and Mr Lockhart indicated that he would get back to him once he got instructions (DL [6]-[9]).
Mr Lockhart had further instructions with Dr Pollak and prepared a heads of agreement on 21 March (DL [11]-[12]).
On 24 March he received an email from Dr Pollak attaching a proposed lease. He then had Ms Mao send the document to Mr Tong, whom he said he had met briefly at Mr Hillam's offices on 20 March (DL [13]).
Mr Lockhart indicated that at no time had he been given any authority to enter into any contracts on behalf of the Defendant (DL [15]).
Mr Lockhart denied the account given by Mr Hillam in his affidavit of what occurred at their meeting which again he asserted took place on 20 March not on 28 or 29 March. He remembered the conversation he said because he handed Mr Hillam the document dated 20 March (DL [17]).
Mr Lockhart also denied that he had ever used terminology such as "standard lease terms" in any conversation with Mr Hillam (DL [19]).
In cross examination Mr Lockhart agreed that he had been at LJ Hooker for about 5 years. He managed a large number of commercial tenancies in March totalling approximately 210 (T55/20-45).
Mr Lockhart acknowledged that he did keep a diary in March 2017 and he still has it but he did not make any use of the diary for the purposes of making his affidavit (T56/30-45).
Mr Lockhart agreed that during 2017 and in March he would have been sending emails and letters to various tenants and going to numerous meetings. Having agreed with that nonetheless he said he had a detailed recollection of what had occurred but he accepted it was very difficult to remember details (T57/30-50).
It was put to Mr Lockhart that he did not have a clear recollection of having a meeting with Dr Pollak on 17 March. He said he did have a clear memory. He had other meetings with "Joe" (T59/1-10).
Notwithstanding the fact that on 17 March at 1.07pm Dr Pollak sent some documents to him, Mr Lockhart still believed there was a meeting with Dr Pollak (T59/30-50).
Mr Lockhart said he understood that Dr Pollak wanted to meet with the tenant taking with him the managing agent agreement with the attornment notice, and to determine whether the tenant was happy to do another 12 month lease (T60/44-50).
Mr Lockhart did not remember what documents Dr Pollak gave him during the course of the meeting which took place (T63/1-5).
Mr Lockhart agreed he used the term "on or around" when describing the meeting he said he had with Mr Hillam on 20 March. He also agreed that there was some uncertainty that the meeting in fact took place on 20 March. Mr Lockhart said he believed it took place on 20 March. He prepared the letter on that day and he was pretty sure he took it on that day. That is what fixed the 20 March date (T64/40-50).
Whenever he prepared such a letter he always delivered it on the same day (T65/1-4).
Mr Lockhart said it was best practice to take the attornment notice with the managing agent letter and he assumed he had met with Mr Hillam on 20 March and took them with him because it was best practice (T65/30-35).
Mr Lockhart accepted that it was quite possible that he did go to Mr Hillam's office on 20 March but he was not there. He also accepted he might have attended the office and having determined he was not there left the envelope (T65/35-45).
He would not agree however that there was no actual discussion which took place between himself and Mr Hillam on 20 March (T65/48-50).
Mr Lockhart confirmed that he was still asserting that he handed the document dated 20 March to Mr Hillam when he visited his offices (T66/35-40).
He only ever had one meeting with Mr Hillam around 20 March (T66/40-45).
Mr Lockhart did not agree that he might have attended the office discovering Mr Hillam was not there, left the letter and then returned later for a meeting with him. Mr Lockhart said he had only been to Mr Hillam's office once (T67/5-15).
Mr Lockhart would not accept that a meeting had not taken place on 20, or had taken place even on 21, 22, 23 or 24 March (T67/20-30).
Mr Lockhart insisted his account of what occurred at the meeting was all of the significant conversation (T67/40-45).
He agreed that having left the meeting given what Mr Hillam had said he thought Mr Hillam had no interest in entering into a lease (T68/1-3).
Mr Lockhart insisted that there was no discussion of rent at the meeting (T68/14-18).
Notwithstanding Mr Hillam's attitude Mr Lockhart said he was under instructions from the owner to put a lease together and submit it to Mr Hillam (T68/35-40).
Mr Lockhart agreed that the email of 24 March 2017 sent by Ms Mao was sent to the wrong email address although it did not bounce back to LJ Hooker (T69/30-50).
Mr Lockhart again denied that he visited Mr Hillam's premises on 28 or 29 March but rather it was 20 March (T71/30-35).
Mr Hillam's account of the meeting was put to Mr Lockhart. Mr Lockhart disagreed with that account and in particular said that the figure of $650 per square metre was not discussed.
Mr Lockhart said that Mr Hillam said he was looking to buy another property and that he and Mr Lockhart were a couple of days late. Mr Lockhart agreed that Mr Hillam was talking about buying a property but he might have said that he had bought a new property (T72/35-45).
Mr Lockhart denied Mr Hillam expressed surprise at the increase in the rent because the rent was not discussed at the meeting. Mr Lockhart did agree that Mr Hillam discussed money spent on a fit-out (T72/40-50).
Mr Lockhart denied that he was attempting to reconstruct events in a way that would please Dr Pollak or in a way that was considered consistent with best practice (T74/1-10).
Mr Lockhart agreed that Ms Mao was around and living in New South Wales as was Dr Pollak who was sitting at the back of the court (T74/11-35).

[20]

Alleged March Meetings

An important factual controversy at the centre of this dispute is the timing and content of the meeting between Mr Hillam and Mr Lockhart and Ms Mao regarding the Proposed Lease. This is unsurprising given the extent to which the Plaintiff's case, particularly on the question of an oral agreement, stands or falls based on what was said at the meeting. The task of resolving this factual dispute has not been without difficulty, especially in the absence of any contemporaneous notes from the relevant participants. However, for the reasons below I am satisfied Mr Lockhart's version of events going to the Alleged 20 March Meeting should be accepted, and I therefore reject Mr Hillam's version of events going to the Alleged 28/29 March Meeting.
Before setting out these reasons, I note notwithstanding the structure of the parties' decisions, in my view the timing of the disputed meeting directly informs the content of the meeting given how context-dependent both alleged meetings are, meaning the two issues are not the subject of separate consideration.
In terms of undisputed facts, both parties agree Mr Hillam only met Mr Lockhart and Ms Mao directly once, the meeting was short, and took place at the Premises where Mr Hillam was based.
Both sides also agree on or about 20 March 2017, Mr Hillam received the 20 March appointment letter, though who gave him the letter, in what context, and on precisely which date is disputed. According to Mr Lockhart, the 20 March appointment letter helps him place the meeting on 20 March since it was his practice to date the letter the same day it is delivered (T64/47-T65/2). Mr Lockhart said he handed the 20 March appointment letter to Mr Hillam himself on 20 March 2017 at the Alleged 20 March Meeting (DL [6]-[7]).
I accept there are issues corroborating Mr Lockhart's account regarding the 20 March appointment letter. Ms Ren, for example, does not recall the exact date or how she received the envelope with the 20 March appointment letter, but recalls opening it when Mr Hillam was not there because she received it in the morning and left it on her desk (SR [6]; T15/10-18). Mr Hillam asserted he first saw the 20 March appointment letter shortly after 20 March, before he had met Mr Lockhart and Ms Mao, and was shown the letter by Ms Ren and Mr Tong (JH4 [4]-[5]). However, in my view, the unremarkable contents of the 20 March appointment letter explain why recollections of its receipt are not entirely consistent. The contents of the 20 March appointment letter are really not a matter of significance, so in my mind it could have easily been handed over by Mr Lockhart or Ms Mao to Ms Ren or Mr Hillam and forgotten about since it was of no real moment.
Further factors supporting Mr Lockhart's account of a "meet and greet" style meeting on 20 March 2017 is the fact the meeting between Mr Hillam, Mr Lockhart and Ms Mao appears to be unscheduled. There are no diary notes, appointment records, or evidence of phone calls arranging for the meeting. Mr Lockhart's evidence was that the Premises was "literally a couple of minutes away" (T67/14-15) and his practice was to date a letter on the day he would take that letter to its recipient (T65/1-2). These factors, along with the fact no one including Mr Hillam can recall the exact day the letter was received, in my view supports the finding the meeting between Mr Hillam, Mr Lockhart and Ms Mao was short and of little substance. This finding is consistent with the account Alleged 20 March Meeting, and inconsistent with the account of the Alleged 28/29 March Meeting. If the parties discussed and ultimately did intend to enter into legally binding relations on 28/29 March, then one would expect there to either be strong recollections of such a meeting, or recordings of both the scheduling and outcome of the meeting.
Further, in my view there are additional contemporaneous records which are consistent with the Alleged 20 March Meeting and/or inconsistent with the Alleged 28/29 March Meeting, leaving me satisfied Mr Lockhart's version of the Alleged 20 March Meeting should be accepted.
Dealing with these records chronologically, the email sent by Mr Lockhart to Dr Pollock with "Heads of Agreement" for his review (CB 647-8) on 21 March is consistent with a meeting between Mr Lockhart and Mr Hillman having already taken place. I accept Mr Lockhart does not refer to the Alleged 20 March Meeting in his email to Dr Pollock, but the act of sending his client recommended terms gives rise to an impression there has already been some, albeit brief, discussion with Mr Hillam about the Proposed Lease.
Next, Ms Mao's email of 24 March 2017 (Exhibit P1) intended for Mr Tong, copying in Mr Lockhart, and attaching a suite of documents including the Proposed Lease, in my view both supports the Alleged 20 March Meeting, and poses a real, if not fatal, challenge to Mr Hillam's account of the Alleged 28/29 March Meeting. It is accepted the email was not received by Mr Tong as the email address was incorrect. Nonetheless, in my view the email is central to resolving this factual controversy.
First, in my view it is unlikely Ms Mao would have sent (or attempted to send) the Proposed Lease to Mr Tong before anyone from LJ Hooker had met with Mr Hillam. There is no evidence supporting the Plaintiff's explanation Ms Mao "may" have obtained Mr Tong's contact details from a visit on 20 March not involving Mr Hillam, or by telephone. Further, while on Mr Lockhart's version Mr Hillam may have seemed uninterested in any further lease of the Premises (T67/48-T68/1), in my view this does not render the 24 March email illogical. While uninterested, there is no evidence Mr Hillam ruled out the option of signing a new lease. This, in addition to Mr Hillam's communication to Dr Pollak in December 2016 that he was in fact interested in continuing a lease at least for the short term (CB 121), in my view is a plausible explanation for why Dr Pollak would have formulated the Proposed Lease to be sent by Ms Mao to Mr Hillam notwithstanding his apparent disinterest at the Alleged 20 March Meeting.
Secondly, with no bounce-back of the email (T69/44) nor evidence to the contrary, it is clear by 28/29 March neither Ms Mao nor Mr Lockhart were aware Mr Tong (and thus Mr Hillam) had not received the 24 March email. Indeed according to Mr Lockhart, he was not aware the email had not been sent to Mr Tong until it was sent again on 6 April 2017 (T70/29-32). On that basis, if the meeting was to have taken place on the date Mr Hillam alleges it did, Mr Lockhart and Ms Mao must clearly have assumed at the meeting the Proposed Lease had been received by Mr Tong and hence Mr Hillam. It is therefore entirely untenable, in my view, that Mr Lockhart would have made no reference to the Proposed Lease, and instead simply assert he would "prepare the lease documents and send them to you" and the terms would be "standard lease terms" (Affidavit of John Hillam dated 11 August 2017 [23]). The lease documents were already prepared in the form of the Proposed Lease, and as far as Mr Lockhart was aware, Mr Hillam was already in receipt of the documents.
Indeed, in light of the 24 March email, a logical commencement point of any meeting on 28/29 March would have been Mr Lockhart asking Mr Hillam if he was satisfied with the Proposed Lease. I find it inconceivable Mr Lockhart could have said that he would prepare lease documents and send them to him believing already that had been done on 24 March. There would be no reason for Mr Lockhart to discuss standard terms or anything of the like because in his mind the precise terms that his client was prepared to agree on had already been sent. If the question of terms or discussion about a lease on 28/29 March had truly arisen and it had become apparent, as no doubt such a conversation would, that Mr Hillam had not received these documents I am certain the course of action thereafter taken would have been to ensure by using a correct email address that Mr Hillam immediately received the documents, and a report back to Dr Pollak about the difficulty that had arisen. None of this happened.
In my view the Plaintiff can offer no feasible explanation for why Mr Lockhart would not have raised the fact the Proposed Lease was sent to Mr Tong and hence Mr Hillam, if the Alleged 28/29 March Meeting had taken place. The Plaintiff accepts it is "unlikely" Mr Lockhart and Ms Mao simply forgot the Proposed Lease had been sent only four-five days earlier (T133/24-25). In my view, it is not just unlikely, it is inconceivable.
The Plaintiff's alternative scenario is that Mr Lockhart made a deliberate decision not to mention the Proposed Lease because he realised Dr Pollak was still undecided on rental. In my view there is next to no evidence supporting this case theory, and what purportedly did exist (CB 669) was not the subject of any cross examination, nor put to Mr Lockhart as a case theory (T134/40-46).
The evidence of Mr Tong does not, in my view, support Mr Hillam's account of the Alleged 28/29 March Meeting. Mr Tong does recall two people visiting the Premises for a meeting with Mr Hillam, though could only identify them as a "tall Caucasian" and Asian woman (YT1 [3]). He also recalled Mr Hillam telling the people to "send the new lease documents to Tony" (YT1 [6]) which accords with Mr Hillam's account of the Alleged 28/29 March Meeting.
However, against such evidence is the fact Mr Tong recalled the meeting taking place on or about 29 or 30 March (not 28 or 29 March), without any indication as to how he recalled these dates (YT1 [3]). Further, he provided no resistance to the possibility he had the date of the meeting wrong (T21/1-3), and that Mr Hillam had in fact told the people to send the rent notifications to him (T22/41-44). He also conceded that it was "not unusual" for people to come to the Premises to meet Mr Hillam (T20/49-50), and that in giving evidence he needed to support Mr Hillam's case (T20/1-3). Given these concessions, in my view Mr Tong's evidence does not assist Mr Hillam's case. Rather, his recollection of the meeting being "quick" (T21/20) sits more consistently with the Alleged 20 March Meeting.
In terms of credit, in my view the evidence of Mr Lockhart should be preferred to that of Mr Hillam. While Mr Lockhart clearly had a busy portfolio, so too did Mr Hillam with the 30-40 companies he was running. Further, rather than "quirk in his personality," I am satisfied Mr Hillam's somewhat evasive responses in cross examination (see T34/16, T37/29-20) reflect his attempts to retrospectively reconstruct events surrounding his meeting with Mr Lockhart and Ms Mao to assert a binding lease by way of oral agreement. In contrast, Mr Lockhart, though not strictly independent as the Defendant asserts, certainly as a mere agent had less self-interest in the case than Mr Hillam did, and impressed me as a witness of truth whose evidence in cross examination was largely consistent with his sworn evidence and supported by the few contemporaneous records that did exist.
I infer from the Defendant's failure to call Ms Mao that she would not have assisted in corroborating Mr Lockhart's account. However, the potency of this inference has to be looked at against the tide of evidence indicating the meeting between Mr Hillam, Mr Lockhart and Ms Mao took place on 20 March on the terms set out by Mr Lockhart.
In my view, based on the contemporaneous records, evidence of the witnesses, and credibility of Mr Lockhart and Mr Hillam, I am satisfied on the balance of probabilities Mr Lockhart's version of the Alleged 20 March Meeting (both in regards to its timing and content) should be accepted. I am satisfied Mr Lockhart and Ms Mao had their first and only meeting with Mr Hillam at the Premises on 20 March, where Mr Lockhart provided Mr Hillam (either directly or via Ms Ren) with the 20 March appointment letter. It follows I reject Ms Ren and Mr Hillam's account regarding the receipt of the 20 March appointment letter.
I am further satisfied given the nature and timing of the meeting, Mr Lockhart did not discuss a rental figure at the Alleged 20 March Meeting. True it is that Mr Hillam's recollection of them agreeing to $650 per square metre (albeit on 28/29 March) accords with the figure put by Mr Lockhart in the Heads of Agreement. However, in my view the more likely explanation is in attempting to recall his meeting with Mr Lockhart, Mr Hillam, whether by mistake or otherwise, included terms he believed were orally agreed upon but were in fact only set out in the Proposed Lease. In my view Mr Lockhart would have been vigilant not to put a rental figure to Mr Hillam at the Alleged 20 March Meeting, and cognisant of the fact that he had not, at that stage, either made a recommendation to his client or indeed, more importantly, received any instructions as to what level of rental his client wanted going forward. It was clearly not until the next day that he put pen to paper, as it were, and suggested heads of agreement to Dr Pollak.
I am satisfied LJ Hooker next attempted to make contact with Mr Hillam via Mr Tong on 24 March, through Ms Mao's email attaching the Proposed Lease. I accept Mr Lockhart and Ms Mao were not aware this email had not been sent to Mr Tong until around 6 April 2017, at which point Ms Mao again sent an email attaching the Proposed Lease.
I am further satisfied the next Mr Lockhart and/or Ms Mao heard from Mr Hillam was not at any meeting on 28 or 29 March, but via email on 12 April 2017 when Mr Hillam replied to Ms Mao's email disputing the notice period (CB 119). Thus, while my reasons which follow still refer to Mr Lockhart's account of his meeting with Mr Hillam as the "Alleged" 20 March Meeting for consistency, I am satisfied that account is an accurate account of the sole meeting between Mr Hillam and Mr Lockhart and Ms Mao.

[21]

Date Mr Hillam signed the Proposed Lease

The date Mr Hillam signed the Proposed Lease is an additional, albeit less pivotal, factual finding relevant to the outcome of these proceedings.
Mr Hillam asserted he signed the Proposed Lease on 8 April 2017 before he went on holidays, and only after returning from holidays did he realise on 28 April 2017 his staff had not done as they were instructed to do in sending the Proposed Lease back to Ms Mao (JH2 [32], [40]). In support of this is the copy of the Proposed Lease annexed to Mr Hillam's affidavit of 11 August 2017, executed by Mr Hillam and witnessed by Mr Tong, which is dated, in handwriting, '8 April 2017' (CB 100).
However, against this is, first, the letter from WKA Legal dated 26 June 2017 plainly stating Mr Hillam signed and returned the Proposed Lease on 28 April 2017 (CB 156). Mr Hillam agreed he approved this letter, but states nonetheless the reference to 28 April 2017 was a "typo" (T82/20-31).
Secondly, Mr Hillam in recalling signing the Proposed Lease on 8 April did not refer to anyone (such as Mr Tong) witnessing his signature on that same day (JH2 [32]). Mr Tong asserted he did witness Mr Hillam signing the Proposed Lease (T76/48-50), and also suggested he and Mr Hillam signed the Proposed Lease shortly after receiving it from Ms Mao (T76/31-34). However, importantly Mr Tong also agreed that as soon as he signed the document, he scanned it and sent it back to Ms Mao (T77/37-39). As the Proposed Lease was sent on 28 April, in my view this is evidence indicating the Proposed Lease was in fact signed by Mr Hillam on that date.
Further, Mr Hillam gave no evidence of how instructions were given on 8 April 2017, and which member of staff they were given to. Further, neither Mr Tong nor Ms Ren gave evidence of any instructions being received. If I were to accept Mr Hillam's assertion he signed the Proposed Lease on 8 April 2017, this would require me to implicitly find Mr Tong and Ms Ren were incompetent in not following Mr Hillam's alleged instructions to send the executed Proposed Lease back to Ms Mao following 8 April 2017. According to Mr Hillam, when he returned from his holiday he saw the executed Proposed Lease had been "sitting in the office all that time and hadn't been sent" (T82/45-47). Neither Ms Ren nor Mr Tong impressed me as witnesses who were so inattentive they would both forget to send a document as important as a lease purportedly ensuring they could continue occupying the Premises for another year, especially given Mr Tong was aware the execution of the Proposed Lease was "an urgent matter" (T77/12-15).
Finally, the 12 April email from Mr Hillam makes no reference to him having executed the Proposed Lease, or reaching any oral agreement along those lines. In my view this omission is telling as this would be the exact time in which Mr Hillam as an experienced businessman would either inform Ms Mao he had executed the Proposed Lease, or check in with his staff to see if they had followed his instructions.
I am therefore satisfied, given the inconsistencies in the accounts of the Proposed Lease being executed on 8 April 2017, and the amount of evidence indicating the Proposed Lease was executed on 28 April 2017, on the balance of probabilities the Proposed Lease was not executed by Mr Hillam until 28 April 2017.

[25]

b) No intention to create binding legal relations

In accepting the meeting between Mr Hillam, Mr Lockhart and Ms Mao was the Alleged 20 March Meeting as set out by Mr Lockhart, there is no basis for a finding of any oral contract, as the Plaintiff itself has acknowledged (T140/20-21).
However, even if I am wrong in my factual findings and the Alleged 28/29 March Meeting was the relevant meeting between Mr Hillam, Mr Lockhart and Ms Mao, then in my view there are still no grounds for a finding of any oral contract.
First, putting to one side the aforementioned authority issue, on both Mr Hillam's accounts of the Alleged 28/29 March Meeting, the terms of the alleged oral agreement were so uncertain and vague that they could not be said to objectively show an intention on the part of both parties to be legally bound to any alleged agreement. Beyond an assertion Mr Lockhart said rent would be $650 per square metre (which I have found to be false), Mr Hillam said Mr Lockhart either said he would send the lease documents to him (D9 [16]-[19]), or send the lease documents to him and the lease would include "standard lease terms. Similar to your current lease" (JH2 [23]).
In my view an agreement otherwise to "standard lease terms" or "similar" terms to the Bonhil Lease does not indicate an intention of the parties to enter into a contract on certain terms. Mr Hillam conceded not every lease he entered into was on the same terms (T105/38-39), and even though he asserted he believed there was such a thing as "standard lease terms" (T105/41-43), in my view this cannot be accepted.
Even accepting Mr Hillam's assertion the $650 per square metre figure was agreed upon, without Mr Hillam knowing how many square metres were in the Premises (T92/35-40), there was still no contractual certainty regarding rent. Further, Mr Hillam simply assumed the commencement date was 1 April 2017 without there being any discussion on the point (T105/44-50), and there was no discussion as to the duration of the lease term, nor other relevant provisions such as grounds for termination, and the type of security and insurance required. In my view, these terms were more than "minor matters" (T139/36) that the parties needed to agree upon before they became terms of a contractual nature.
Secondly, the evidence shows both parties contemplated further documentation before an agreement was reached. On both Mr Hillam's accounts of the Alleged 28/29 March Meeting, Mr Lockhart simply asks Mr Hillam if he is "interested" in leasing the Premises, and later indicated "lease documents" would be sent through to Mr Hillam. Given the exact terms, and in my view most of the important terms, of the lease had not been agreed upon, I am satisfied both parties were anticipating further "lease documents" before an agreement would be reached. This is particularly evident from JPSF's position, where the Proposed Lease was drafted to ensure an agreement would only be binding upon the execution of both parties (clause 6 of Annexure A to the Proposed Lease). Mr Hillam's decision to sign the Proposed Lease containing this clause also amounts to objective consent that the agreement was conditional upon both parties consenting to it.
Thirdly, Mr Hillam's conduct following the Alleged 28/29 March Meeting was not consistent with a binding oral agreement having been reached. On 12 April in his reply to Ms Mao's 6 April email, Mr Hillam did not make any assertions about agreeing to a new lease (CB 119). The reference to "our lease" in my view, based on the remainder of the letter, can only be understood as a reference to the Bonhil Lease, and not as Mr Hillam stated, a reference "to the lease from the Defendant that I had signed before I left on holidays" (JH2 [36]). While the fact Mr Hillam was on holidays when he sent the 12 April email may be able to explain how he could have failed to mention the new lease, such an excuse cannot explain the correspondence and conduct that followed.
For example, despite threatening to contact lawyers in his 12 April email to Ms Mao, Mr Hillam waited until on or about 23 May 2017 to contact Mr Damian Perrignon - a delay that does not marry up with a businessman believing he had a new lease that meant he did not have to vacate the Premises. Further, there is no reference to a new lease in Mr Baxter's letter of 25 May 2017, with Mr Hillam described as a month to month tenant as at 12 April 2017, and not the tenant of a one year lease (Exhibit D7). I do not accept Mr Hillam's explanation for this purported mistake.
In addition, Mr Hillam did not comply with terms of the Proposed Lease despite allegedly believing he was bound by those terms from April 2017. A security deposit was not provided until 8 August 2017, despite clause 17.2 of the Proposed Lease requiring delivery of the deposit on or before the Proposed Lease's commencement date. Mr Hillam was also required by clause 8.1.1 to have public liability insurance of $20,000,000 at the Proposed Lease's commencement date, but did not seek it until 19 May 2017.
On these grounds, even if I were to accept the Alleged 28/29 March Meeting took place (which I do not), I am satisfied objectively neither party had reached finality in arranging the terms of their bargain and intended to enter into an immediately binding agreement. In my view, the oral agreement said to arise from the conversations at that meeting (if it took place) would fall into the third category of Masters v Cameron with the parties agreeing there could be no contract until they had executed a formal lease document.

[26]

c) Even if there is an oral agreement, no exception to section 23C(1)(a) and 54A(1) of the Conveyancing Act

Prima facie section 23C(1)(a) and 54A(1) of the Conveyancing Act mean in the absence of writing, legal interest in the lease of the Premises cannot pass to Mr Hillam. As noted, the Plaintiff submits these sections can be overcome by acts of part performance by Mr Hillam, the existence of written memorandum of the agreement, signed by an agent of the Defendant, and/or the operation of section 23D.
In my view, again assuming I am wrong in my findings the Alleged 20 March Meeting took place as opposed to the 28/29 March Meeting, but also assuming an oral agreement was reached at that meeting, I am still not satisfied there are grounds for overcoming the requirements of section 23C(1)(a) and 54A(1) of the Conveyancing Act.
On the question of part performance, I am not satisfied Mr Hillam's eventual payment of rent of the "new" lease on 5 May 2017 amounts to any form of part performance. Payment of money does not appear to amount to part performance (see Maddison v Alderson (1883) 8 App Cas 467 at 478-9 per Earl Selbourne LC), but additionally Mr Hillam did not pay the rent of the "new" lease following the oral agreement said to have been reached at the Alleged 28/29 March Meeting, nor did he pay it upon receipt of the 6 April email attaching the Proposed Lease, nor did he pay it when he returned the signed lease document on 28 April 2017. His failure to do so, and failure to provide a tenable explanation for such a failure, is inconsistent with the existence of a contract between the parties from 28/29 March 2017, and thus in my view cannot amount to an act of part performance.
Similarly, I am not satisfied Ms Mao's 6 April Email amounts to a written memorandum of the purported agreement. Even were I to accept on the case law the Plaintiff has referred me to that Ms Mao's typed name on the 6 April email could amount to a signature under general law, in my view the content of the 6 April email is simply not "recognizable as a note or memorandum of a concluded agreement" (see Pirie v Saunders at 154). There is no reference to this meeting, nor the oral agreement purportedly reached by the parties at this meeting. Further, the Proposed Lease attached to the 6 April email contains clause 6 of Annexure A to the Proposed Lease, and an execution block requiring Dr Pollak to sign the Proposed Lease to bind JPSF.
Further, the terms of the Proposed Lease are different to the terms Mr Hillam alleged were agreed upon at the Alleged 28/29 March Meeting, namely $650 per square metre rent, for duration of 1 year, and otherwise on the terms of the Bonhil Lease. On these grounds it is therefore not necessary for me to also determine the question of the status of Ms Mao's "signature," however I note in passing I am not satisfied the Plaintiff's argument carries any weight under section 9 of the Electronic Transactions Act. As the Defendant notes, there is no evidence Ms Mao had authority to represent JPSF, nor that the method of typed name on a covering email was "reliable as appropriate" in the context of the Proposed Lease.
Section 23D(2) of the Conveyancing Act was not the subject of extensive submissions. The Plaintiff raised the section, albeit briefly, in written submissions, but it was not addressed by the Defendant, nor was it raised in oral submissions. In my view, based on the limited material before me, if I were to find both the Alleged 28/29 March Meeting took place, and the parties intended to enter into legally binding relations at that meeting, then section 23D(2) of the Conveyancing Act arguably would allow the Plaintiff to overcome the issue of section 23C and 54A of the Conveyancing Act. The lease is less than three years, Mr Hillam is in possession of the Premises, and the evidence, namely the CBRE valuation report (CB 621-644) indicating the rent should be $600-$650, Mr Lockhart's figure of $650 in the "Heads of Agreement" (CB 647-8), leaves me satisfied $650 is the best rent available.
However, such a conclusion on section 23D(2) is predicated on not only a finding the Alleged 28/29 March Meeting took place, but also that the meeting gave rise to a creation of interest in land. As I have found against both findings, in my view section 23D(2) of the Conveyancing Act, similar to arguments of part performance and the existence of a written memorandum, are not enlivened in this case.

[28]

No written agreement

This part of the case is dealt with somewhat briefly as in my view it turns very substantially on the effect of clause 6 of Annexure A to the Proposed Lease. This clause, viewed objectively in the circumstances, shows the parties intended there to be a written agreement which would only have effect upon both parties executing that agreement.
In my view, the Plaintiff's alternative case that Ms Mao's 6 April Email was an offer validly accepted must fail. The Plaintiff submits its case on a written agreement is not dependent on the Court finding in favour of the Alleged 28/29 March Meeting, although such a finding would assist his case (T149/22-23). However, in my view the Alleged 28/29 March Meeting does not assist the Plaintiff's case on this point in any real way, given the number of other issues with this claim.
First, I am not satisfied the emailing of the unsigned Proposed Lease amounted to an offer. Ms Mao's request in the forwarded email to "send back [the lease] to me ASAP" and the unambiguous wording of clause 6 of Annexure A to the Proposed Lease in my view plainly establish Ms Mao's 6 April Email to be an invitation to treat. The email was asking Mr Hillam to make an offer on terms of the Proposed Lease, which JPSF's director would execute if he/she accepted the offer. Mr Hillam's signature on the Proposed Lease represented his acknowledgment to only be bound by the terms of the Proposed Lease upon the Defendant's execution of the Lease, pursuant to clause 6 of Annexure A.
Next, even if somehow Ms Mao's 6 April Email can be construed as an offer, as I have stated (see [250] and thereafter above) I am not satisfied Mr Hillam executed the agreement before the Offer to Lease was withdrawn on 12 April 2017. Once withdrawn, there was no "offer" to accept; Goldsbrough, Mort & Co Ltd v Quinn (1910) 10 CLR 674 at 678 per Griffith CJ.
Finally, even assuming Mr Hillam did execute the Proposed Lease on 8 April 2017, it is agreed JPSF did not have this brought to their attention until 28 April 2017, some two weeks after the withdrawal of the Offer to Lease. I cannot accept the Plaintiff's submission Ms Mao's 6 April Email falls into the category of cases where an acceptor does not have to inform the offeror of the acceptance - there is no evidence JPSF indicated no communication would be required, and indeed strong evidence to the contrary (see [282] above).
For these reasons, I am also not satisfied Mr Hillam and JPSF entered into a legally binding agreement in a written form when Mr Hillam executed the Proposed Lease attached to Ms Mao's 6 April Email.

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