ISSUES
4 Before me the parties have agreed that a figure of $11,875.00 per month will be the occupation fee for Cohibar until further order, or the final hearing of the case. It is common ground that that figure should apply at least as from 1 September 1999. The dispute on Cohibar before me concerns what occupation fee should be paid in respect of the period from 1 May to 31 August. The defendant contends that it should be the same figure of $11,875.00 per month; the plaintiffs contend that it should be no more than $6,250.00 per month.
5 The main dispute before me, however, has concerned whether there should be any revision of the conditions concerning the premises Jordans. In short, the defendant contends that the court was not misled in any way relevant to those premises. The plaintiffs contend that the circumstances justify a reconsideration of that aspect of the conditions as well. In short, the plaintiffs say that the defendant should not get any advantage from a hearing in which, on the plaintiffs' submission, the defendant deliberately misled the court; and further that there is now material, namely, evidence that the defendant deliberately misled the court, which makes it just that the matter be reconsidered and a different result arrived at.
MISLEADING THE COURT
6 One matter which I should first consider is how to characterize the misleading of the court at the hearing before Young J. It is apparent that the court was misled by the tendering of the front pages of certain leases, of premises said to be comparable to Cohibar, showing a particular rent, without also tendering other provisions of those leases which indicated that substantial incentives or rent holidays were given in relation to those leases. That matter, it appears, was exacerbated by evidence led by the defendant to the effect that the rent stated in those leases was being paid, when in fact in respect of some, or all, of the leases there were rent holidays or concessions still operative. The misleading of the court by that evidence, as Santow J pointed out, could be innocent, careless, or deliberate.
7 Before Santow J, no attempt was made to explain how the misleading of the court came about, and Santow J offered the defendant an opportunity to put on that material. Santow J noted:
The defendant declined to take up that opportunity, rather it sought that the matter wait for determination of what has been described as a "final" interlocutory hearing by Hodgson CJ in Eq on 10 September 1999.
8 Before me also no attempt has been made by the defendant to explain how the court came to be misled. Quite plainly, the defendant has had an ample opportunity to offer such an explanation and has chosen not to do so. It seems to me that if the misleading of the court was innocent, or even careless, one would have expected an explanation and an apology to be offered. In circumstance where this has not happened, and apparently has not happened by a deliberate choice, I think I should infer that the misleading of the court was deliberate. In many cases such a finding would be the equivalent of a finding of fraud. However, this is not a case where fraud has been specifically charged, and certainly not specifically charged against any person. In those circumstances, I would not find fraud against any person. However, I think it is appropriate to make a finding that the defendant deliberately misled the court in the hearing before Young J. In making that finding I would emphasise, as did Santow J, that there is no finding adverse to the legal advisers of the defendant.
9 The effect of the misleading of the court, as it now appears, was merely to support a finding that $15,000.00 per month was an appropriate occupation fee for Cohibar, whereas the parties have now agreed that, at least as from the present, an appropriate fee would be just under $12,000.00. On one view of the matter, therefore, the misleading of the court was not in relation to a matter having very significant financial consequences.
SUBMISSIONS
10 As I have already said, it is common ground that the circumstances justify varying the condition in relation to Cohibar. The substantial question is whether they justify varying the conditions in relation to Jordans.
11 Mr Sullivan, QC, for the plaintiffs has provided written submissions which I will leave with the papers. In substance he submits that the defendant should get no advantage whatsoever from a hearing at which the defendant misled the court. Furthermore, he submits the Court was misled indirectly in relation to matters affecting Jordans, in that it treated the case as being one between two parties acting bona fide, whereas in truth one was deliberately seeking to mislead the court. He submitted that this was relevant to the court's approach to the discretionary adjustment of matters to occur up to the final hearing of the case.
12 Mr Sullivan submitted that the restriction on applications to vary interlocutory orders, being based inter alia on the public policy of finality of litigation, was displaced by the public policy supporting the right of a party to a fair hearing. He submitted that it was impossible to say whether or not Young J would have resolved the matter in the same way had he been aware of the deliberate attempt to mislead him. Looking at the matter having regard to that circumstance, there was a compelling case in favour of the plaintiffs that it should not be required to pay any rent in respect of Jordans prior to 1 May this year, and that thereafter it should have to pay no more than about three quarters of the rent.
13 Mr Robinson for the defendant submitted that Young J's decision was based on matters of principle decided by him which were entirely independent of the value for occupation purposes of Cohibar. Young J found that there was no agreement between the parties as to non-payment of rent, but an arguable case for an estoppel, and that it was appropriate that the current rent be paid for Jordans plus some of the back rent. In imposing the conditions which he imposed in relation to Jordans, there was an exercise of discretion which has not miscarried and which is unassailable.
14 Mr Robinson referred me to a number of cases dealing with the limited circumstances in which interlocutory orders may be varied, including Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170, Woods v Sheriff of Queensland (1895) QLJ 163 and Brimaud v Honeysett Instant Print, McLelland CJ in Eq, 19 September 1988.
15 In any event, Mr Robinson submitted, there was no probability that, even if Young J had been aware of the misleading of the court, he would have come to any different view concerning Jordans. All the material he relied on was material submitted by the plaintiffs. There was no material relied on by the defendant dependent upon the credibility of the defendant's principals or employees. A closer examination of the material confirmed that Young J was correct in holding there was no concluded agreement, but that there was a question to be tried concerning estoppel. In imposing the conditions, Young J had struck a reasonable balance.
16 Mr Robinson pointed out that this was not a case in which any application was made to set aside the whole of Justice Young's decision. It was not an application based on fraud, but only an application to vary and, in accordance with the principles concerning variation of interlocutory orders, it would be appropriate to vary only so much of the order as was really affected by the misleading of the court. Mr Robinson submitted that it was not appropriate to treat this as an occasion for punishment of the defendant, in that any appropriate punishment had occurred through the imposition of costs orders by Santow J. Now the court should do no more than seek to achieve the just result on the material now before the court.