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1. One of the teachings of Confucianism is to never impose on others what you would not choose for yourself (D Hinton, The Four Chinese Classics (Penguin Books, 2014) Analects XV.24). The dispute generating this appeal is primarily about a massive stockpile of e-waste left on premises in Fyshwick when a lease ended, and who should pay to dispose of it.

2. At law, the answer is usually that the tenant responsible for putting the rubbish on the property should take that waste with them when they leave. In this case, the tenant was a company that was put into voluntary liquidation six months after vacating the property. The landlord consequently looked to assign responsibility to the directors of the company. That gave rise to this case, which was substantially about whether the conduct of one of the directors was such that he became jointly responsible for the cost of removing the waste and for other repairs and rental losses. The case proceeded in the Magistrates Court, where it was held that the director was liable, partly because he had signed a personal guarantee which was found to cover some of the losses and partly because he became a joint tortfeasor in trespass. On this appeal, I have reached the conclusion that those findings were without material error and will now explain why the appeal must be dismissed.

Factual matrix

3. There were three commercial units in Fyshwick (Units 1, 2 and 3). MRI ACT Pty Ltd (the Company) was the entity who originally leased the units at various times from mid-2011 to February 2021 for the purpose of conducting a recycling business for electronic waste. Those leases were terminated for non-payment of rent, among other things.

4. The Company became insolvent following the termination of the leases. The bulk of the hazardous e-waste was left on Unit 3, the removal of which constituted the major component of the loss claimed. Repairs were also required to the common areas and units because of damage caused by the Company.

5. The landlord of the three units, Sporco Investments Pty Ltd (the respondent), then sought to make one of the directors of the company responsible, being William Le Messurier (the appellant).

6. The first basis for making the appellant responsible was a personal guarantee indemnifying the Company, which was executed by the appellant at the time that the leases for Units 1 and 2 were also executed. A year and a half later, the Company entered into a lease in respect of Unit 3, taking possession on 21 January 2013. The arrangements for that lease lacked formality. Significantly for this dispute, no personal guarantee was signed in respect of that lease and there was an issue about whether the original guarantee extended to cover any liabilities of the Company in respect of the tenancy for Unit 3.

7. If the personal guarantee did not extend to indemnifying the Company’s obligations in respect of Units 1, 2 or 3, the respondent maintained a second (alternative) basis for still holding the appellant responsible. It was alleged that the Company became a trespasser by continuing to leave the waste on the premises when it no longer had a right to do so, and that such trespass extended to the appellant because of his close personal involvement or deliberate, wilful and knowing pursuit of the course of conduct that constituted the trespass.

Findings in the Magistrates Court

8. In the Magistrates Court, the claim under the guarantee succeeded in respect of losses arising out of breaches of lease for Units 1 and 2, but not in respect of Unit 3. The claim in joint trespass succeeded in respect of all three units: Sporco Investments Pty Ltd v Le Messurier [2023] ACTMC 10 (primary judgment). There was a further judgment on interest and costs: Sporco Investments Pty Ltd v Le Messurier (No 2) [2023] ACTMC 46 (costs judgment).

The finding that the guarantee was effective to respond to the claim in respect of Units 1 and 2

9. The magistrate found that the guarantee could not be relied upon in respect of any lease involving Unit 3. It was accepted that a lease of Unit 3 was brought about by virtue of a Heads of Agreement document emailed on 12 December 2012 (HoA), which was subsequently perfected in emails and the act of handing over the keys to Unit 3. The guarantee did not extend to that lease because the appellant had not executed the guarantee expressly indemnifying any losses pertaining to that unit: primary judgment at [29].

10. However, the magistrate found that the guarantee could be relied upon to recover damages for losses in relation to Units 1 and 2 during the 23-month period following termination of the lease (between 1 August 2019 and 30 June 2021): primary judgment at [53], [66], [68].

11. The basis for that conclusion was the magistrate’s earlier finding that the HoA effected a variation to an existing agreement, rather than a replacement or substitution of it. The magistrate considered the issue by reference to ANZ Group Ltd v Manasseh [2015] WASC 34 at [100]-[144] and the appeal of that decision ([2016] WASCA 41): primary judgment at [25]-[26]. The critical aspect of the magistrate’s reasoning is at [28]-[29]: 28. Considering the formality and mutual protections provided by the original written lease agreement, including how it contained comprehensive terms, took the form of a deed and included guarantees by third parties, it is inconceivable that the participants intended to depart from those arrangements without doing so clearly in writing. Further, the email exchange is simply inconsistent with any intention to revoke the existing agreement involving Units 1 and 2. No new long-term arrangement was agreed between the participants. At best, it may be implied that the participants adopted the second option proposed by the Company, and that option involved a separate lease arrangement for Unit 3, in addition to the existing lease for the first two units. Ultimately, there was no clear written adoption by either party of an arrangement that could be regarded as an express or implied variation to the original lease arrangement for Units 1 and 2. And while the negotiations initially extended to all three units, they eventually narrowed to concern only Unit 3. It cannot be said there was an agreement to enter into a new lease with respect to the first two units. Accordingly, I find on the balance of probabilities that the original lease arrangements for Units 1 and 2 continued beyond the negotiations conducted in late 2012 and early 2013, and it continued to include the guarantee provided by the defendant with respect to Units 1 and 2. 29. … As described above it could not be said that the participants adopted the contents of the Heads of agreement proposal. Even if they did, there was no evidence about what the usual form of lease would be … Further, even if there was some understanding to prepare a lease in accordance with the limited terms provided in the Heads of agreement proposal document, that would be, in itself and at best, an agreement to agree and not an intention to create legal relations. … The finding that the appellant was liable in trespass as a joint tortfeasor

12. The findings concerning this issue (primary judgment at [42]-[48]) are set out in detail because the issues on appeal challenge both the conclusion of joint trespass as well as the individual inferences drawn by the magistrate.

13. The magistrate first dealt with the evidence of Mr Samsudin, the former operations manager of the Company, who gave evidence of the Company’s process for managing e-waste and the involvement of the appellant in those processes. In respect of that evidence, the magistrate found at [42]: 42. Mr Samsudin’s unchallenged evidence was plausible, and I have no reason to doubt its reliability. Accordingly, I accept that evidence and find: (a) The Company was one of a number of companies within a Group. Those companies were: (i) MRI PSO Pty Ltd, which was the contracting partner in the Commonwealth’s National Television and Computer Recycling Scheme, which received payment from the government for receiving and processing e-waste and paid out funds to the other companies according to the proportion of the e-waste processed by the companies. The defendant was the CEO of this company. (ii) MRI (Aust) Pty Ltd was the entity that paid the processing fee to Nyrstar, who would take the CRT glass for processing. The defendant was the managing director of this company. (iii) The Company was one entity, along with similar entities in NSW, QLD and Victoria, which received electronic products under the Commonwealth’s recycling scheme, separated those products into their various waste components for subsequent selling, processing or recycling. (b) The Defendant was the managing director of MRI (Aust) Pty Ltd and a number of the other entities within the MRI Group. He made all key decisions for the Group. He would provide Mr Dawes, another director of the Company, with directions about the running of the Company. Mr Samsudin held the role of Operations Manager at the units in question and reported to Mr Dawes. (c) Employees of the Company sorted and manually disassembled products in Units 1 and 2, before the various types of waste were stored outside in the common area. After the Company took possession of Unit 3, the waste was also stored inside that unit. (d) The CRT glass is dangerous and must be transported and disposed of in an approved manner. The only facility approved to process that glass is Nyrstar in Port Pirie South Australia. The Company did not and could not send CRT glass to land fill. (e) In 2016, the Company – at the direction of the defendant, sent multiple trucks of CRT glass to Nyrstar. The defendant then gave a direction to the Company that no more CRT glass was to be sent to Nyrstar for processing, because the MRI (Aust) Pty Ltd account had not been paid and Nyrstar was not accepting any more glass from the Company until all invoices had been paid. (f) Subsequently, the Company did not dispose of any CRT glass and it was stockpiled on the premises.

14. The magistrate then addressed the inferences to be drawn from the evidence, stating at [43]-[47]: 43. It is open from my findings to infer that the defendant coordinated the movement and management of products and their disassembled components and waste within the Group and beyond to other entities for sale, processing or recycling. He had knowledge of major issues that arose within the Group, including regulatory, logistical and financial. 44. There is also direct evidence from the company searches that the defendant, held a financial interest, to some degree, in the group. 45. There is direct evidence that he personally negotiated the arrangements for Unit 3, he advised the regulator that the Company was not able to obtain an unconditional bank guarantee, he was copied into emails from the regulator about the ongoing failure by the Company to provide financial assurance for the stockpile, he was copied into emails about the non-payment of rent and was aware of problems with paying Nyrstar’s invoices and that they were no longer accepting glass from the Company for processing. There are inferences available that the problem with Nyrstar arose as early as 2016 and extended to other companies within the group. There is evidence that between mid-2018 and mid-2020 the regulator required the Company to reduce the stockpile of CRT glass, and instead that stockpile grew considerably. An inference is available that the defendant was aware of this and allowed it to continue. Another available inference is he was aware generally of the cost involved in dealing with that stockpile. 46. There is an inference available that while all the above was occurring, the Group continued to receive Commonwealth payments for receiving electronic products, the Company continued to receive its share of those products and the defendant was aware of this and allowed it to continue. An inference is available that the defendant had direct knowledge that an unsustainable stockpile was accumulating in Unit 3, the significant scale of that stockpile and that there was a growing risk that the Company would become insolvent and abandon that stockpile. 47. All of the above inferences are properly open. Further, the operation and circumstances of the Group, including the Company, were within the knowledge of the defendant and it could also be presumed he would know who to call to explain any details and where to obtain documents in support. That contrasts with the knowledge of the plaintiff. In those circumstances the defendant’s election to not call or give evidence and not challenge the plaintiff’s evidence is of more than ordinary significance. It allows me to place more weight on the facts that supports those inferences and renders those inferences more probable and makes them less unsafe than they might otherwise appear. I am not required to imagine what hypotheses may assist the defendant. I am entitled to be bold when deciding whether or not to accept those inferences as having been established on the balance of probabilities. Ultimately, I do find they have been proved to that standard and make findings accordingly.

15. The magistrate then made the finding that the appellant directed or procured the actions of the Company, which is the key source of challenge on appeal, at [48]: 48. In light of those findings, I comfortably find on the balance of probabilities that the defendant directed or procured the actions of the Company that resulted in the stockpile of lead glass remaining in and around the units, including within Unit 3, after the Company surrendered possession of those units. The defendant’s role across the Group and beyond the Company meant that he stood apart from the Company and directed or procured the stockpile as a separate entity. This was not a case of the defendant merely directing the company’s decision-making from within. It is clear the defendant’s vision and interests extended beyond the Company, to other companies and arrangements within the Group. His awareness of, and contribution to, the growth of a stockpile of that type, size and significance on premises with an unpredictable [month] to month lease and by a company with precarious finances amounted to a close personal involvement in the actions of the Company that gave rise to the trespass. Accordingly, I find that the defendant is jointly liable as a tortfeasor with the Company in relation to the trespass in the three units and on the associated common property by leaving various waste, including but not limited to the significant quantity of CRT glass waste located in Unit 3. Damages awarded

16. The total amount in damages awarded was $1,460,976. Breaking down that sum, the losses awarded on the basis of the appellant indemnifying the company’s breaches of the lease agreement for Units 1 and 2 (primary judgment at [88]) amounted to $569,100, comprising the following:

(a) Removal of waste from the common area $45,010 (b) Cost of repairs (inc. to Unit 1 brick wall and $346,465 concrete driveways) (c) Occupancy fee and lost rent for Units 1 and 2 $159,625 (plus interest)

17. In respect of the remaining $891,876 in damages awarded relating to Unit 3, the magistrate found that the appellant was liable as a joint tortfeasor in trespass because of the level of his involvement while a director of the Company, which was found to have amounted to directly procuring the trespass: primary judgment at [48]. Those damages comprised:

(a) Removing e-waste (including equipment rental) $671,136 ($645,516 + $25,620) (b) Removal of general waste from Unit 3 $5,525 (c) Occupancy fee and lost rent for Unit 3 $233,215

18. For precision, the equipment rental for the removal of waste in fact straddled both Unit 3 and the common area including Units 1 and 2. Interest was then awarded in the sum of $43,416 and costs on a party-party basis: primary judgment at [89] and costs judgment at [25].

The appeal to this court

19. By this appeal, the appellant sought orders that the appeal be upheld, the orders of the primary judgment and costs judgment be set aside, and that the action brought by the respondent be dismissed with costs. There was no challenge to the magistrate’s finding that the respondent’s guarantee did not extend to losses arising as a result of the e-waste left on the site of Unit 3.

20. Issue 1: In respect of the losses attributable to Units 1 and 2, the appellant complained that: (a) He should not have been found liable for any damages in respect of Units 1 and 2 by reason of the operation of the guarantee. (b) The guarantee had no operation because the HoA emailed in contemplation of a formal sublease of Unit 3 replaced the original lease for Units 1 and 2. That is, a new binding agreement was created in respect of all three units. (c) Accepting that the HoA replaced the sublease for Units 1 and 2, the consequence was that the guarantee no longer had any operation. (d) Separately, the magistrate’s findings to the contrary failed to afford him procedural fairness, by reason of how the case was pleaded and argued.

21. Issue 2: In respect of the finding that the appellant was liable in trespass, the appellant complained that: (a) He should not have been found liable for any damages on the basis of a joint trespass in respect of Unit 3 and in respect of Units 1 and 2 insofar as the trespass was an alternative finding founding the damages awarded. (b) He merely acted as a director of the Company and did not engage in any conduct of the kind which could justify the imposition of liability upon him for the tort of trespass.

22. Issue 3: Further on the trespass case, there were also specific challenges to the following findings on the basis that none of the facts found were pleaded by the respondent: (a) That the appellant had direct knowledge that there was a growing risk that the Company would become insolvent and abandon the stockpile of waste; (b) That the appellant had direct knowledge that the stockpile which was accumulating was unsustainable; and (c) That the appellant was aware there was an unpredictable month to month lease and by a company with precarious finances.

23. Issue 4: The appellant further complained that the finding he was liable to the respondent as a joint trespasser was wrong because the facts giving rise to his alleged liability comprised an omission, rather than any relevant act causative of the trespass.

24. Issue 5: On the damages payable, the appellant argued that the magistrate erred in finding that interest was payable on lost ‘rent’ when the respondent had not established an entitlement to recover rent against the appellant.

25. Issue 6: The appellant also challenged the finding that the appellant should pay the costs of the respondent.

26. The resolution of Issues 5 and 6 is largely contingent upon my findings in respect of the primary issues.

The court’s power and task on appeal

27. The appeal is brought under s 155 of the Leases (Commercial and Retail) Act 2001 (ACT), which allows a party to a proceeding in the Magistrates Court to bring an appeal to this court on a “question of law or fact.”

28. Pursuant to r 5052 of the Court Procedures Rules 2006 (ACT), this court is conferred with all the powers and duties of the lower court in conducting an appeal of this nature. While an appellant must identify or be able to point to the questions of law or fact giving rise to the appeal, the task is essentially one of rehearing, with the requirement being to establish error before the court will intervene.

29. The court must review the evidence that was before the lower court and determine whether the Magistrates Court erred, either in fact or law, in the decision-making process, with due regard for the advantages of the fact-finder in the court below: Manny v David Lardner Lawyers (No 4) [2024] ACTCA 12 at [214] citing Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]; PAAN Investments Pty Ltd (in liq) v Commissioner for Revenue for the Australian Capital Territory [2014] ACTSC 161; 290 FLR 1.

30. If error is established, r 5052(1) permits the court to make a variety of orders, among which are the following: confirming, amending or setting aside the order of the Magistrates Court, remitting the case to be heard and decided again, or any other order considered appropriate.

Issue 1: No error in finding continued existence of guarantee

31. Issue 1 concerns the magistrate’s reasoning at [28]-[29] (extracted at [11] above). The appellant’s primary contention was that the second agreement in 2012 created a new sublease of Units 1, 2 and 3 which effectively superseded the original agreement in 2011 to sublease only Units 1 and 2. The appellant argued this extinguished any previous guarantee of the Company’s obligations under the lease by any of the directors of the Company. The appellant also argued that the findings with respect to the HoA denied him procedural fairness.

32. As will be explained, I consider there was no failure to afford procedural fairness and further, that the magistrate was correct to find that the appellant’s guarantee could be relied upon insofar as it indemnified the Company for breaches of the lease in respect of Units 1 and 2. There was no denial of procedural fairness

33. Dealing first with the procedural fairness point, the appellant challenged the magistrate’s finding that the HoA was not a legally binding document in respect of Units 1 and 2. The crux of the complaint is that the magistrate’s finding departed from the way the case was run at first instance. The appellant challenged particularly the magistrate’s view that it was “inconceivable that the participants intended to depart from [the Units 1 and 2 Lease] without doing so clearly in writing.”

34. The appellant took the court to the pleadings and parts of the transcript to support his submissions that: (a) The parties had agreed that the HoA was entered into and was legally binding. (b) The issue was not whether the HoA was a legally binding document, but the legal consequences of the HoA and whether it incorporated the personal guarantee or whether the guarantee was discharged by the HoA. The appellant maintained that this was a dispute of law, on agreed facts.

35. I have not accepted that there was any denial of procedural fairness because I did not accept that the respondent’s case was run in the way characterised by the appellant. It seems to me that the appellant may have misconceived the respondent’s case. The respondent pleaded that there were two leases: (a) The first was the formal lease entered into on 1 May 2011 which only referred to Units 1 and 2. It was held over and the Company continued in occupation of Units 1 and 2 until 7 February 2021 when the tenancy was terminated by the respondent. (b) The second lease comprised the HoA. That the lease for Unit 3 was separate was evidenced by two factors. The first was an email sent by the respondent, referring to a second option of leasing Unit 3 and proposing the rental amount for Unit 3. The second was the handing over of keys, the Company taking possession of Unit 3 and the subsequent payment of rent. It too was held over after 31 January 2017, until termination on 7 February 2021.

36. When the respondent in the court below referred to the HoA as being “binding”, that was a reference to the Heads of Agreement being binding in respect of Unit 3. However, the statement of claim and the respondent’s opening and closing consistently referred to two separate leases, not to one lease for the three units.

37. The appellant sought to derive some support for the argument that the case was run on the basis that the HoA bound the parties in respect of all three units from [52] of the statement of claim. That paragraph pleaded (relevantly to this appellant) that the appellant guaranteed the punctual payment of rent and indemnified the respondent against all losses, damages and costs incurred as a result of the Company’s breach of obligations “under the Unit 1 and 2 Lease and Unit 3 Lease”. The appellant argued that this brought Units 1, 2 and 3 under the one umbrella, but that is not the case because the language again referred to two separate leases.

38. That paragraph of the pleading pleaded that the guarantee operated in respect of all three units. However, it did so consistently with how the contractual arrangements had been pleaded earlier, on the basis of two separate leases: one which had an express guarantee executed, and the other which incorporated the guarantee by implication from a reference in the HoA to “standard terms”.

39. The same distinction is seen in how the case was run. The appellant provided numerous transcript references confirming that the respondent ran a case that the HoA was an agreement which was entered into, not an agreement to agree. The HoA was a contract with the company which effectively incorporated the previous terms of the lease.

40. However, when each of those transcript references are read in the context of the arguments that were being put, it is clear that what was being argued was that the HoA created a binding lease in respect of Unit 3. Examples of the contextual language include: (a) From the opening submissions: Then in 2011 there was, we say, a lease entered into and this is a point of contest of Unit 3. The principle reason for the point of contest is that whereas there was a lease in quite customary form for units 1 and 2, unit 3, what we contend is the lease took place as a result of a heads of agreement document which contained a significant – again, we submit – provision in the heads of agreement document saying that it would be subject to the usual terms of – form of lease. (b) From the closing submissions: I’ll go now directly to the unit 3 leasing arrangement … My submission is that whilst the parties may have subsequently intended to reach some more formalised agreement, there was the basis of an agreement which they entered into … That picks up the heads of agreement, that was the offer from the landlord. The heads of agreement effectively incorporate by reference the lease that we’ve just seen there on page 680. The lease includes a guarantee and the [principals] of the company who entered into the lease evidently proceeded to enter into the lease and enter into the premises.

41. The confusion appears to have arisen because of the fine distinction between incorporating an earlier lease and incorporating the terms of an earlier lease. However, fairly understood across the pleadings, evidence and oral submissions, it is tolerably clear that the respondent’s case was not that the HoA ever overtook the formal lease for Units 1 and 2. It was that the terms of the formal lease for Units 1 and 2 were incorporated in the lease agreement for Unit 3, and that included the incorporation of the guarantee.

42. That leads me to conclude that there was no denial of procedural fairness because the magistrate’s findings accorded with the manner in which the case was run.

The magistrate was correct to conclude that the HoA did not replace the original lease

43. Turning to consider the substantive aspect of Issue 1, I have not discerned any error in the findings of the magistrate. I agree that the HoA was initially emailed in contemplation of a formal sublease of all three units, but that what the parties objectively proceeded upon was the continuation of the original lease for Units 1 and 2 and a separate lease for Unit 3 based on the same rent as that being paid for Units 1 and 2. That is, there was a new binding agreement created, but only in respect of Unit 3.

44. The original lease and the subsequent communications tell the story. The original lease for Units 1 and 2 was executed on 21 July 2011 and backdated to commence on 1 May 2011. The relevant terms of that are summarised as follows: (a) The term of the lease was three years. (b) The premises being leased measured 554 square metres, comprising Units 1 and 2 on Sublease Plan No. 6403. (c) The total annual rent payable for the premises was $70,000 per annum excluding GST. (d) The rent payable by the lessee was to increase annually at a fixed rate of 4%, to be applied on 1 May 2012 and 1 May 2013. (e) The lessee was to bear a 56.93% share of the total sum of all increases in taxes, charges and expenses (outgoings) (as specified in Item 10(1)) relating to the premises; (f) Clauses 30 and 34 imposed repair, maintenance and make good obligations upon the Company, which included an obligation to repair any damage caused to the premises and reinstate the premises to its condition at commencement of the lease. If the Company failed to do so, then the respondent could cause the repair, maintenance and make good of the premises and seek reimbursement of the associated costs from the Company. The Company was also responsible for the make good and repair of any damage caused to the premises. (g) Clause 54 provided for the removal of property belonging to the Company from the premises and allowed the respondent to make a claim against the Company for the costs it incurred in removing, storing or selling any abandoned property. (h) The appellant, together with the other two directors of the Company, were named as joint and several covenantors, guaranteeing the performance of the Company’s obligations under the lease, including payment to compensate the respondent for “all losses, damages and costs” (clause 18(1) of the Units 1 and 2 lease).

45. In December 2012, negotiations for the sublease of Unit 3 of the premises commenced between the respondent and the appellant on behalf of the Company. The particulars of those negotiations are sufficiently summarised in the primary judgment at [20]-[24]: 20. In December 2012 – when the negotiations commenced, the relationship between the participants with respect to Units 1 and 2 was governed by the lease agreement and guarantee as executed in mid-2011. The lease term had not yet expired. The negotiations commenced with a telephone conversation between the defendant and Mr Pucci, a director of the plaintiff. The defendant indicated that the Company would like to lease Unit 3. A week or so later, Mr Pucci then sent an email to the defendant, which stated (emphasis added): Further to our conversation the other day please find attached a copy of the Heads of agreement proposal for MRI in relation to the Fyshwick operations of MRI. As agreed the key points are as follows: • Rate $138.00 / per sqm based on lettable area • Term 4 years commencing 31 Jan 2012 (sic) with a three year option • Sinking fund set at $1,000 by way of bank guarantee (over the term of the lease) 21. The Heads of agreement proposal document attached to the email contained a table with listing items in the first column, the plaintiff’s proposal in the second, and provided space in the third for the Company’s response. Relevantly, the table proposed the area and rent for the new arrangement. In doing so it included all three units, but specified separately the area and rent figures for Unit 3. It also proposed a four-year term with a commencement day 31 January 2013 and that the lease would be documented in accordance with the plaintiff’s ‘usual form of lease consistent with the Commercial and Retail Act 2001’ (sic). 22. The following month in January 2013, the defendant responded by email, stating that the Company was not convinced that taking over Unit 3 was a long-term option. He went on to acknowledge the Company had applied some pressure on the plaintiff to have the previous tenant vacate Unit 3, but all its waste needed to be stored undercover, in accordance with the required standard. The defendant then proposed two options. First, a 3 plus 3-year lease with the plaintiff installing an undercover area and another door in the existing units. Secondly and in the alternative, no modifications, current rent rate, and the Company leasing Unit 3 on a month-to-month basis until alternative accommodation was found. Then the Company would move out and be responsible for subleasing Units 1 and 2 and end the lease on Unit 3 with one month’s notice. Clearly, this second option proposed a separate lease agreement for Unit 3. 23. Ten days later, Mr Pucci responded to the defendant and the other directors of the Company. That email noted the keys to Unit 3 had been handed over to the Company that day, indicated further information was required in relation to option 1 and that, rather than ‘wait until we can come to an agreement’, immediate access to Unit 3 had been provided to the Company because it was empty and the Company had a pressing need for additional space. The email went on to propose the rent for Unit 3 and observed that the figure was ‘consistent your option B’ (sic). (As described above, that second option had proposed a lease on a month to month basis, with termination on one month’s notice.) The email also suggested the plaintiff would be in a position to ‘finalise long term arrangements’ around mid-February. Mr Pucci did not receive a response to that email. 24. There was no other evidence about the content of those negotiations. The following day, Mr Nappo – another director of the plaintiff, emailed the first invoice for Unit 3. That invoice related solely to Unit 3, and not the other two units, and for an amount consistent with the amount of rent for Unit 3 discussed during the negotiations. Subsequently, the plaintiff continued to invoice the Company separately for the first two units and Unit 3.

46. There was no challenge to the summary of the negotiations, and it accords with the evidence before the court on this appeal.

47. The contents of the HoA itself are also relevant when considering the appellant’s argument. The key features of that document were as follows: (a) The document is titled ‘Premises: Unit 3/78-80 Townsville, Fyshwick Block 22 Section 32 Division of Fyshwick’. (b) Notwithstanding that the document header was specifically limited to Unit 3, the ‘Lessor Proposal’ in relation to ‘Area’ and Rental’ includes references to Units 1 and 2. The respondent’s proposal for the rental of Unit 1 & 2 was ‘$76,452 plus GST’. Although this was greater than the annual rent initially payable in respect of those units specified in the Units 1 and 2 sublease, the amount appeared to be broadly consistent with an annual 4% per annum increase that had occurred since that date. (c) The key terms are displayed in tabulated form, each with two adjacent columns titled, ‘Lessor Proposal’, and ‘Response on behalf of MRI Australian (sic)’, allowing the respondent to propose the details of each term and the appellant to respond to each proposal, respectively. (d) The lessor proposed a lease term of four years, commencing on 31 January 2013. (e) Similarly, the ‘Lessor Proposal’ in relation to ‘Outgoings’ is stated as ‘100% this reflects an increase from 56.93%’, which is a reference (and increase) to the percentage as specified in the Units 1 and 2 sublease. (f) Whilst the document omits reference to other key terms which are ordinarily stated in a general form of lease, the ‘Lessor Proposal’ beside ‘Documentation’ provides that ‘[t]he lease document will be in accordance with the Lessor’s usual form of lease consistent with the Commercial and Retail Act 2001.’

48. The appellant submitted that the consequence of the HoA being legally binding upon the parties is that it replaced the Units 1 and 2 lease and discharged the guarantee of the Company’s obligations with respect to all three units.

49. The appellant relied on the legal characterisation of the HoA following Masters v Cameron [1954] HCA 72; 91 CLR 353, in which the High Court, at 360, identified three categories of case applicable where parties have agreed upon terms of a contractual nature: 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.

50. The appellant argued that the HoA fell within a category 1 agreement, arguing that the parties had finalised all the terms of their bargain, as contained in the HoA, and intended to be immediately bound by those terms.

51. I do not disagree that the entry into possession of Unit 3 in February 2013 perfected an agreement that was binding, evidenced by the subsequent payment of rent. I also accept the appellant’s submission that the essential elements of a lease were proposed in the HoA. However, the flaw in the appellant’s argument was to assume that the HoA was the complete agreement. It was in fact only part of the documents evidencing the terms of the bargain struck between the parties. To the extent that there is a reference in the HoA to Units 1 and 2, that proposed form of lease was not how the parties proceeded, as seen from the subsequent emails summarised in the extract from the primary judgment above. The email of 11 January 2013 was only directed to Unit 3. The lack of documentary formality is consistent with the negotiations becoming limited to Unit 3. Further indicators that the contractual leasing arrangements were separate is seen by the subsequent separate invoicing of the units, with Unit 3 being invoiced separately from Units 1 and 2, as well as the termination of each lease being at different times.

52. The appellant submitted that there was nothing in the evidence to suggest that the parties had agreed either expressly or impliedly to carve out parts of the HoA. However, it is not a case of carving out terms in order to make sense of the agreement. The subsequent communications and conduct demonstrate that the negotiations evolved from the initial proposal in the HoA of a single lease covering all three units for a four-year term, to a lease limited to Unit 3.

53. The appellant further relied on the Ankar principle as to the liability of a surety being strictly construed (as to which see Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; 162 CLR 549 at 560-561), arguing that the alteration of the lease in respect of Units 1 and 2 by the HoA that was binding on the parties discharged the guarantee. The Ankar principle undoubtedly operated in the appellant’s favour insofar as it confined any liability of the appellant to that arising with respect to Units 1 and 2. However, that does not overcome the hurdle that the lease itself for Units 1 and 2 was not varied. There was no evidence, for example, that even the percentage of outgoings payable was increased. The lease for Units 1 and 2 simply continued on the same terms as those originally documented between the parties on the same holding over basis. The evidence did not support the discharge of the guarantee in respect of Units 1 and 2.

54. Accordingly, no error is made out on Issue 1.

Issues 2 and 4: Joint trespass by the appellant – the omission to act can amount to direct procurement of the tort

55. Resolution of these issues starts with the trespass by the Company that was committed after the lease had been terminated on 7 February 2021. Prior to that date, the Company had permission to occupy the land. Trespass includes the physical intrusion into land by tangible objects, be they persons or things: Miller v Jackson [1977] EWCA Civ 6; QB 966 at 978. As seen in cases such as Konskier v B Goodman Ltd [1928] 1 KB 421, companies may be sued in the tort of trespass for allowing rubbish to remain on a premises after their lawful right to occupy (through lease or licence) has ceased if the company has failed to remove the rubbish for a period of time beyond that which is considered reasonable.

56. Applying Konskier at 426 and Cumberland Consolidated Holdings Limited v Ireland [1946] 1 KB 264 at 271, the Company committed a continuing trespass because: (a) It placed the e-waste on the land with the respondent’s consent. (b) There was a withdrawal of consent effected by the termination of the lease (February 2021). (c) The withdrawal of consent created a duty upon the Company to remove the e-waste within a reasonable time. (d) The e-waste was substantial, to the point where it impeded (interfered with) the enjoyment of the respondent’s right of possession of a substantial part of Unit 3. (e) Although there is no hard and fast rule as to what constitutes a “reasonable time”, the waste was still present on Unit 3 when the Company was put into voluntary liquidation on 30 August 2021 (and indeed, was still apparently on the site in November 2022 when Mr Samsudin prepared a supplementary report as to the cost of removing the waste taking into account inflation). On any view, the waste was not removed within a reasonable time.

57. The next issue is whether the appellant was a joint tortfeasor, or merely a director of a Company that trespassed and then became insolvent. I have arrived at the same conclusion as the magistrate because I agree that the circumstances of the director’s involvement in the conduct constituting the trespass was sufficient to attract liability as a joint tortfeasor.

The appellant’s argument

58. The appellant submitted that: (a) Trespass is committed by entering onto land or putting goods on land without consent. The state of mind of the trespasser is wholly irrelevant: see Plenty v Dillon [1991] HCA 5; 171 CLR 635, where the fact that police officers entered onto land believing they were entitled to remain on it was irrelevant. (b) The act must be a positive act. I took that to mean an intentional or voluntary act, consistent with authorities to the effect that there is no liability if there is no voluntary act on the part of the appellant: Smith v Stone (1647) Style 65; 82 ER 533, cited by Gibbs J in Public Transport Commission (NSW) v Perry [1977] HCA 32; 137 CLR 107 at 132 as a well-established principle. (c) The form of trespass in consideration here was a continuing trespass. The initial act of placing goods on the land occurred with permission. It was the failure to remove them after the permission had ended that gave rise to the Company’s tort. That is, here the tort arose by omission. (d) Again, there is no occasion to inquire into the state of mind of the trespasser, or what the trespasser did or did not know.

59. The appellant then argued that two things follow from these legal propositions: (a) A joint tort, as opposed to ancillary liability, can only occur when the joint tortfeasors fail to remove the goods, not when they first allow the goods to be placed on the land with the consent of the owner. The trespass comprises only the failure – an omission – rather than any act or thing done. (b) There is no occasion when considering a joint trespass arising by leaving goods on land to inquire into the mind, knowledge or belief of the trespasser. It might be otherwise where a different joint tort is in question, but trespass does not depend on knowledge.

60. Based on those propositions, the appellant drew a distinction between acts and omissions as being the critical reason why he was not a joint tortfeasor here. The appellant submitted that a director cannot be liable as a joint tortfeasor unless he (in this case) does something more than acting as a director. He must do something that makes him an invader of the landholder’s rights in addition to the company: Keller v LED Technologies Pty Ltd [2010] FCAFC 55; 185 FCR 449 at [83]; O’Brien v Dawson [1942] HCA 8; 66 CLR 18 at 32.

61. The appellant submitted that upon termination of the Company’s lease, he did nothing beyond engaging as a director of a company, where that entity failed to remove the waste material. The tort of trespass by omission is incapable of rendering a person who did not do anything in connection with that failure jointly liable, and the appellant did not do anything that made him become an actor in that omission.

62. The appellant submitted that the magistrate’s error was to impermissibly elide the distinct concepts of allowing goods to accumulate at a time when the Company was lawfully in possession of the land, and the subsequent failure by the Company to remove the material after the tenancy had been terminated. His Honour considered the actions of the Company (primary judgment at [48]) as one continuum. The trespass involved only the failure to remove, not the actions which gave rise to the placing of the goods on the land in the first place. The applicable law for determining whether a director is to be held jointly responsible for tort

63. The above argument requires some knowledge of what is required before a director will become also liable for a tort, and then consideration of how those principles interact when the essence of the tort is one of an omission to do something.

64. The test has been described in different ways. As recorded by the magistrate (primary judgment at [36]), the requirements for liability to jointly attach to a director were set out in JR Consulting & Drafting Pty Ltd v Cummings [2016] FCAFC 20; 329 ALR 625 at [350] and Hashtag Burgers Pty Ltd v In-N-Out Burgers, Inc [2020] FCAFC 235; 385 ALR 514, where the court stated at [136]: ... the director must be shown to have directed or procured the tort and the conduct must, clearly enough, go beyond causing the company to take a commercial or business course of action or directing the company’s decision-making where both steps are the good faith and reasonable expression of the discharge of the duties and obligations of the director, as a director. The additional component required is a “close personal involvement” in the infringing conduct of the company and inevitably the quality or degree of that closeness will require careful examination on a case by case basis.

65. The director must be acting beyond his or her proper role as a director: see JR Consulting at [351]. The director’s knowledge is relevant when determining the question of ‘close personal involvement’: Hashtag Burgers at [138].

66. Elsewhere the requirement for director liability has been described as arising where the director “has engaged in the deliberate, wilful and knowing pursuit of a course of conduct that is likely to constitute infringement or which reflected an indifference to the risk of it”: Mentmore Manufacturing Co Ltd v National Merchandising Manufacturing Co Inc (1978) 89 DLR (3d) 195, discussed in Keller at [273].

67. In Killer Queen, LLC v Taylor [2024] FCAFC 149; 306 FCR 199 the court drew the authorities together at [104]-[106]: 104. Where a director of a company is involved, the cases demonstrate that liability of a director for procuring a tort of the company is a form of joint liability, the director and the company being joint tortfeasors. In Keller v LED Technologies Pty Ltd [2010] FCAFC 55; 185 FCR 449 (Keller FC) the Full Court, comprised of Emmett, Besanko and Jessup JJ, expressed different views as to the circumstances in which a director would be liable as a joint tortfeasor for the acts of the company. It is not necessary for present purposes to dwell on those differences, which were concisely summarised by Besanko J in Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2013] FCA 1255; 97 ACSR 127 at [142]–[146]. In JR Consulting & Drafting Pty Ltd v Cummings [2016] FCAFC 20; 329 ALR 625 (JR Consulting FC) the Full Court, after citing the principle set out in The Koursk [1924] LRP 140; 18 Lloyd’s Rep 153, said at [335] (per Bennett, Greenwood and Besanko JJ): 335. As a matter of foundation principle then, in order for a director to be regarded as a joint tortfeasor with the company of which he or she is a director, there must be concurrence in the acts of both the company and the director causing the damage rather than coincidence of roles comprised of the company as an entity doing something and a director discharging duties as a director of the company doing that thing. This may be the implicit principled source of the notion articulated in the line of authority to the effect that the director must act, engage, so as to “make” the tort of the company “his or her own”, that is, a demonstrated concurrence in the acts giving rise to the civil wrong causing the damage in suit rather than a coincidence of rolls. 105. The Full Court reviewed the differing tests set out by the Court in Keller FC and concluded at [350]–[351] (per Bennett, Greenwood and Besanko JJ): 350. We suspect that there is ultimately not a great deal of difference between these lines of authority as the director must be shown to have directed or procured the tort and the conduct must, clearly enough, go beyond causing the company to take a commercial or business course of action or directing the company’s decision-making where both steps are the good faith and reasonable expression of the discharge of the duties and obligations of the director, as a director. The additional component required is a “close personal involvement” in the infringing conduct of the company and inevitably the quality or degree of that closeness will require careful examination on a case by case basis. That examination might show engagement by the director of the kind or at the threshold described by Finkelstein J in Root Quality at [146] (as earlier discussed) which would undoubtedly establish personal liability in the director or a less stringent degree of closeness (perhaps described as “reckless indifference” to the company’s unlawful civil wrong causing harm), yet sufficiently close to demonstrate conduct of the director going beyond simply guiding or directing a commercial course and engaging in (perhaps vigorously) decision-making within the company as a director. 351. Ultimately, the question, on the facts, is what was the conduct of the director said to go beyond the proper role of director so as to descend into the realm of “close personal involvement”? 106. The passage from JR Consulting FC above was followed and applied by the Full Court in Hashtag Burgers Pty Ltd v In-N-Out Burgers, Inc [2020] FCAFC 235; 385 ALR 514 at [136]–[138] (per Nicholas, Yates and Burley JJ) and decisions of the New South Wales Court of Appeal: Anchorage Capital Master Offshore Ltd v Sparkes [2023] NSWCA 88; 11 NSWLR 304 (per Ward P, Brereton JA and Griffiths AJA); Marino v Bello (No 3) [2022] NSWCA 181; 408 ALR 650 at [15] (per Brereton JA, Macfarlan JA agreeing at [1] and Kirk JA agreeing at [25]). What constitutes a “close personal involvement” as opposed to involved within the proper role as a director

68. It is clear from those authorities that what constitutes conduct sufficient to attract liability as a joint tortfeasor is a question highly dependent on the facts of the case. However, some guidance is provided by the circumstances considered in the authorities.

69. A helpful example is seen in Hashtag Burgers, a case about trademark infringement and passing off, where the Full Court of the Federal Court of Australia identified (at [140]) five matters that led it to conclude that the directors in that case were joint tortfeasors. They were: (a) The directors in question were sole directors. (b) The directors alone made decisions as to the company’s management. (c) The directors alone received the profits derived from it. (d) There was no significant difference between the way that the two individuals operated the business before incorporation and the way in which they operated it through the corporate vehicle after it was formed. (e) The directors were knowingly involved in the company’s wrongdoing.

The necessary close connection existed here

70. There is no error in the magistrate’s reasoning set out above. In particular, I agree with the finding at [48] of the primary judgment that “The [appellant’s] role across the Group and beyond the Company meant that he stood apart from the Company and directed or procured the stockpile as a separate entity. This was not a case of the defendant merely directing the company’s decision-making from within. It is clear the defendant’s vision and interests extended beyond the Company, to other companies and arrangements within the Group.”

71. I do not agree with the appellant’s submission that knowledge and intention are entirely irrelevant to the question of joint liability for trespass of this kind. As seen above, the extension of liability for a company’s trespass to a director operates from different legal principles, where knowledge, intention and matters of acting in good faith are considered relevant. Although the application of the principle is factually dependent, the principle itself does not change depending on the nature of the tort. Thus, it does not matter that knowledge is not an element of the tort of trespass or that continuing trespass arises through omission rather than action.

72. I also do not accept that the actions of the director in causing the waste to be placed on Unit 3 prior to the termination of the lease were irrelevant to the question of whether the appellant subsequently became a joint tortfeasor in trespass. As the respondent submitted, the appellant’s conduct after termination of the lease did not occur in isolation.

73. The appellant’s role in the Company and the personal connection to the Company may be viewed holistically because the conduct of a director prior to the tort arising may shed light on factors such as their degree of control in decision-making, their personal involvement in the activities of the company, how the business operated and what they knew about the wrongdoing.

74. Accordingly, while the appellant is correct that the tort itself has a temporal restriction, in that the tort is not committed until a reasonable time has passed after consent for the items to remain on the premises has been withdrawn, that does not prevent consideration of activities that occurred prior to the tort occurring. It is permissible to consider circumstances leading up to the commission of the tort for the different purpose of assessing the conduct of a director and whether the Company’s omission or failure to act was the decision of a director properly acting in good faith in the interests of the company, or whether that omission was something beyond the proper role of director, descending into the realm of close personal involvement.

75. In this case, the features of the appellant’s conduct that were pleaded as amounting to the sufficient close personal connection with the wrongdoing were: (a) The appellant was a director. (b) The appellant caused the Company to collect, stockpile and abandon the e-waste contrary to the license it held under the Waste Management and Resource Recovery Act 2016 (ACT) (Waste Act). (c) Since abandoning the e-waste, the appellant, as a director of the Company, failed to comply with requests for the Company to remove the e-Waste. (d) As executive officers within the meaning of the Waste Act, the appellant was required personally to take reasonable steps to ensure that the Company did not commit an offence against the Waste Act.

76. Those particulars could have been more expansive but were sufficient to disclose the respondent’s case as to why it maintained that the appellant should be jointly liable.

77. Usually, the nature of the items being left on a property might be thought to be inconsequential to whether a continuing trespass arose, save insofar as concerns an assessment of whether the items were sizeable enough to amount to a deprivation of the enjoyment of the land.

78. Here, the nature of the goods was significant, in that the goods in question were hazardous waste. Safe disposal of the waste was the Company’s core business. The storage, removal and disposal of the waste could only be by a licensed premises. The license attached to the business but could only be issued in respect of the land from which the business operated, which itself had to be authorised to store waste. The waste could only be transported to a lawful place that can accept it and the transportation carried out by a licensed transporter. The responsibility for that was upon the owner of the waste as well as the transporter: s 109 of the Waste Act.

79. The appellant’s conduct – his decision-making and involvement – in managing the hazardous waste that ultimately became the wrongdoing when it was not removed was thus an issue properly for scrutiny in this case. When considering the director’s conduct and whether it travelled beyond the ordinary and proper decision-making of a director of a company, it need hardly be said that acting in good faith in the company’s interest includes complying with regulatory requirements. That is why the respondent focussed so heavily on the appellant’s involvement with the reduction of the e-waste prior to the lease being terminated. The failure to process, reduce or move the hazardous waste occurred over a period of years and it was really that continued failure that put the Company in the position of wrongdoing after termination and provided the requisite direct procurement in the circumstances of this case.

80. The appellant was directly involved in the decision-making that resulted in the Company failing to process or move the waste before and after termination. This is seen by the following: (a) The appellant was one of two directors originally named as being the “person who is to have day-to-day control of the waste transport business” in the application for a waste facility license under the Waste Act. (b) There are references to conversations and meetings with the appellant in emails between the Company and the regulator. The appellant is copied into significant correspondence, including where the appellant and another director on behalf of the licensee made representations in October 2018 about transitioning to a new location and transferring the glass stockpile to a facility which can lawfully accept it, and, in December 2020, working towards a solution by way of a bespoke system to extract the lead from the glass and provide a complete recycling solution. (c) In October 2018, one of the directors names the appellant as having a joint understanding about the provision of financial assurance and what was required under the conditions of the licence. (d) After the termination of the leases, the appellant became the main contact point with the regulator in communicating about the intentions of removing the waste. The emails to the regulator disclose that the Company was part of the MRI Group which was being sold. Due to a loophole in the contract, only two of the three entities which made up the MRI Group were taken over, and the Company was excluded from the sale, with no resources to remove the waste.

81. The appellant’s involvement in seeking to delay the payment of financial assurance needs to be explained further because it carried a separate significance in the circumstances of the tort presently under consideration. The payment of financial assurance was imposed as a condition of the waste facility licence to protect against the risk of abandonment of waste at the facility. The likely failure to remove waste (that is, the commission of the tort) by any company conducting a hazardous waste management business at a licensed premises was a known risk. The risk of abandonment of the waste at the premises was referred to a number of times by the regulator when contemplating what to do about the Company’s failure to pay the financial assurance. The point of drawing attention to this is to assist in understanding the direct connection in the particular circumstances of this case between conduct prior to termination and the Company’s wrongdoing. Ultimately, the Company did not pay the assurance and as these proceedings demonstrate, the known risk materialised.

82. In this case, I agree with the magistrate that the corporate structure was also relevant to a consideration of the appellant’s personal involvement. In short, all roads lead to the appellant. The associated corporate entities, collectively described as the MRI Group, included: (a) the Company, (b) MRI PSO Pty Ltd, and (c) MRI (Aust) Pty Ltd.

83. Prior to being placed into liquidation in 2021, MRI (Aust) Pty Ltd wholly owned MRI PSO Pty Ltd. It was MRI (Aust) Pty Ltd that provided the bank guarantee (in the amount of $19,250) for the Company as beneficiary in 2011 for the original lease of Units 1 and 2.

84. The appellant was a 60% shareholder of the Company. This was demonstrated by the following: (a) The shareholders in the Company were Mark Dawes (40%) and a company of which the appellant was a director, Jureada Pty Ltd (60%). (b) The shareholders of Jureada were the appellant (50%) and another company ACN 108 180 856 (50%). (c) The appellant was a 100% shareholder and director of ACN 108 180 856.

85. Jureada (in effect, wholly owned by the appellant) was also the majority shareholder of MRI (Aust) Pty Ltd. The appellant was entitled to the majority of the Company’s profits as well as those of MRI (Aust) Pty Ltd.

86. The evidence before the court from the operations manager during the relevant time, who was not cross-examined, was that the appellant was the managing director of MRI (Aust) Pty Ltd, the CEO of MRI PSO Pty Ltd, and made all the key decisions for the MRI Group. He also provided directions as to the business running of the Company.

87. As outlined in the primary judgment at [45], the unchallenged evidence before the court was that the Nyrstar facility in Port Pirie, South Australia was the only facility in Australia approved to accept CRT Glass (glass with lead in it). In 2016, the appellant gave a direction to the Company that no more glass e-waste was to be sent to Nyrstar for processing. This was because MRI (Aust) Pty Ltd’s account with Nyrstar had not been paid and Nyrstar would not accept any further glass from the Company until all invoices had been paid. From that time on, no waste was transported from the Company’s licensed site at Fyshwick to South Australia. That was the cause of the massive stockpile on Unit 3.

88. Drawing all this together, the appellant’s involvement quite plainly extended beyond acting as a director of the Company in good faith in the Company’s interests after the leases were terminated. The appellant was personally involved because he was financially invested as the majority shareholder in the Company and in the parent company which directed operations in Canberra. He was directly connected because he was the person nominated as being responsible for the day-to-day control of the waste transport business and the evidence of both the operations manager and the emails demonstrate the appellant’s direct involvement in that regard. He was not merely a director of the Company; he was the person who directly managed the existence and size of the stockpile by reference to other financial concerns of companies in which he was financially invested.

89. In the circumstances outlined above, which include the onerous requirements for removal of hazardous waste, it is no answer to say that the appellant was not a joint tortfeasor because following the termination he took no action other than in his capacity as a director and mere agent of the Company. That argument does not take full account of the circumstances brought about by the appellant through his controlling involvement, shareholdings and management of related companies. The action the appellant took was to attempt to sell the Company as part of a bigger sale of the MRI Group and when that did not come to pass, put the Company into voluntary liquidation. The result of that action was that the Company did not remove the waste, but the appellant’s conduct following termination is not properly characterised as a director’s mere omission to act.

90. On the contrary, to use the language of JR Consulting, the conduct of the appellant was not the reasonable expression of the discharge of the duties and obligations of the director. The failure to remove the waste (because of the Company’s financial difficulty after the lease was terminated) arose not from a decision that the appellant made as a mere director pursuing the Company’s interests, but from decisions that the appellant made in respect of related companies, with the appellant’s personal connection seen through his level of control and the shareholding structure.

91. The appellant’s involvement in causing hazardous waste to stockpile in Units 1, 2 and 3 was directly connected to what then became a failure to remove following termination, and a very expensive problem for the respondent. The closeness of the appellant’s connection to all of the circumstances which brought about the failure to remove the hazardous waste leads me to conclude that the direct procurement of the tort was properly attributable to the appellant. The material before the court demonstrated that the appellant caused the Company’s wrongdoing; without being sinister, he was the mastermind behind it.

92. The complaint described as Issue 2 is therefore not made out.

Issue 3: Inferences drawn by the magistrate that were not pleaded are not material

93. This complaint concerns an asserted failure to plead matters of the appellant’s knowledge and awareness, namely that: (a) the appellant had direct knowledge that there was a growing risk that the Company would become insolvent and abandon the stockpile of waste; (b) the appellant had direct knowledge that the stockpile which was accumulating was unsustainable; and (c) the appellant was aware there was an unpredictable month to month lease and by a company with precarious finances.

94. The appellant submitted that none of the inferences relied on by the magistrate (primary judgment at [43]-[48]) were pleaded as particulars of the allegation that the appellant directed or procured the trespass and had a close personal involvement with the actions constituting the trespass, and that in any event the appellant’s state of mind was wholly irrelevant to the alleged joint trespass.

95. It is true that these matters concerning the appellant’s knowledge were not pleaded. However, the respondent did not rely on them as the reason why the appellant was jointly liable. Having independently reviewed the evidence and drawn my own conclusions, the appellant’s knowledge of the matters listed above are not material to my finding that the appellant’s conduct demonstrated a sufficiently close involvement to attract liability as a joint tortfeasor. Accordingly, even if it is assumed in the appellant’s favour that it was not open to the magistrate to draw the above inferences about the appellant’s knowledge, they do not amount to material error. There is no cause for appellate intervention arising from the complaint described as Issue 3.

Issues 5 and 6 fall away in light of the findings on other Issues

96. Issue 5 concerned interest payable on lost rent. The appellant argued that the respondent had not established an entitlement to recover rent against the appellant. Such loss falls within the scope of damages able to be recovered by the respondent for the trespass. As I have found no error in the finding that the appellant was liable under the guarantee and jointly liable in trespass in respect of the losses for Unit 3, this issue falls away.

97. Issue 6 challenged the finding that the appellant should pay the costs of the respondent. Again, in light of my earlier findings, that issue is also resolved against the appellant.

Conclusion

98. As none of the complaints raised by the Amended Notice of Appeal have succeeded, the appeal will be dismissed. There is no reason of which the court is currently aware why costs would not ordinarily follow the event. In case there are matters either party wishes to draw to the court’s attention, I will make provision for the seeking of a variation to the costs order.

Orders

99. For the above reasons, the Court makes the following orders: (1) The appeal is dismissed. (2) The appellant is to pay the respondent’s costs. (3) In the event that either party notifies the Court within seven days of the making of this order that a different costs order is sought: i. Order 2 is stayed pending further order; ii. The parties are to file and serve agreed or competing short minutes of order and any submissions on costs within 14 days; and iii. Any replies on the question of costs are to be filed and served within 21 days; and iv. Any further consideration of the question of costs is to be determined on the papers.

I certify that the preceding ninety-nine [99] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: