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Representation: Counsel Mr M J Walsh SC (Appellants/Cross Respondents) Mr P Walker SC (Respondent/Cross Appellant)

Solicitors Mills Oakley (Appellants/Cross Respondents) Donohue & Co (Respondent/Cross Appellant)

File Number: ACTCA 22 of 2017

Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Refshauge ACJ Date of Decision: 28 April 2017 Case Title: Tuggeranong Town Centre Pty Limited v Benda Hungerford Pty Limited (No 2) Citation: [2017] ACTSC 88

Burns J:

1. I have before me an application in proceedings in which the respondent and cross-appellant to an appeal, which is due to be heard in the Court of Appeal commencing next Wednesday, 9 May 2018, seeks an order that pursuant to r 5416(2) of the Court Procedures Rules 2006 (ACT), the respondent and cross-appellant be granted further time to file and serve a notice of contention in the form attached. The proposed notice of contention is in the following form. It contends that the order of the primary judge should be confirmed on the grounds:

2. At or before the assignment of the lease of the Giving and Living Shop to the Respondent, the First Appellant was required to serve the Respondent with a Disclosure Statement in accordance with s 30 of the Lease (Commercial and Retail) Act 2001, and form AF 2003-4, and it did not do so. The obligation emerged because the term of the lease was extended on 4 November 2003 for two years. (Reasons for Judgment pars [26]-[29]). 2. The disclosure required in section 5 of the Form would, if the First Appellant had complied with it, informed the respondent of the First Appellant’s plans to undertake works at the Tuggeranong Hyperdome. The First Appellant did not supply any such disclosure to the respondent. 3. The First Appellant’s failure to provide the Disclosure Statement was a relevant circumstance upon which this Honourable Court might also rely which supports the conclusion that the First Appellant had engaged in misleading and deceptive conduct.

3. It is clear that the absence of a disclosure statement was an issue which was raised in the proceedings at first instance by the applicant. The pleadings in the proceedings before the primary judge were amended in order to include a complaint that such a disclosure statement had not been provided as required by the Leases (Commercial and Retail) Act 2001 (ACT). The primary judge allowed the amendment of the pleadings to allow the applicant to raise that issue, noting that it raised a new cause of action. There does not seem to be any dispute that in amending the pleadings in the way in which it did before the primary judge, the applicant sought to raise a new cause of action, be it based upon breach of statutory duty.

4. Ultimately, his Honour dealt with that issue in his final judgment. It is of some significance that his Honour found that he was not satisfied on the balance of probabilities that the evidence was sufficient to establish that the events which had occurred constituted a surrender and re-grant of the lease. His Honour went on to note that no submissions had been made by the applicant at the close of the case before him in support of the claim for breach of statutory duty. His Honour was entitled to treat such a claim as having effectively been abandoned.

5. As such, his Honour did not deal with the argument which is now sought to be raised by the applicant in the Court of Appeal. As I have noted, before the primary judge, the alleged absence of a disclosure statement was said to be relevant on the basis that it supported a cause of action based upon breach of statutory duty. It is proposed now by the applicant to use the alleged absence of a disclosure statement in a different way, being a particular of the allegation that conduct engaged in by the landlord, for want of a better description, was misleading and deceptive.

6. That was an argument which was never raised before the primary judge and, as such, the primary judge did not have an opportunity to consider it. It was also an argument which was not raised on the pleadings before the primary judge and, as such, there was no attention given in the evidence to the suggestion that any absence of a disclosure statement was relevant in such a way. Senior counsel for the respondent to the present application has informed me that if the pleadings before the primary judge had been such as to raise this issue, he would have cross-examined Ms Hungerford in relation to these issues.

7. Senior counsel for the applicant has submitted that, in reality, the application is nothing more than an attempt to give a different legal characterisation to something that was already raised in the proceedings below. I do not accept that submission. I also note that the present application comes very late in the day. As I have already indicated, the appeal is due to be heard commencing next Wednesday and is set down for three days. The subject matter of these proceedings occurred over 10 years ago. The decision by the primary judge was given on 28 April 2017. As I understand it, an appeal was lodged on or about 26 May 2017 and subsequently an amended notice of appeal was filed on 14 November 2017.

8. At that time, again, as I understand what has been put to me, senior counsel appearing on behalf of the applicant to the present proceedings was senior counsel who appeared in the proceedings before the primary judge. It is not without significance that senior counsel who appeared before the primary judge and who sought to make no submissions to the primary judge about any issues arising from the absence of a disclosure statement also apparently sought to take no issue in the appeal proceedings in relation to that matter.

9. I accept that as a consequence of the illness of senior counsel who appeared in the initial proceedings before the primary judge, new senior counsel has been briefed, and he has apparently taken a different view to that which was taken to previous senior counsel; however, in my opinion, there has been no sufficient explanation for the delay in making the present application, in addition to which it raises issues that were not raised before the primary judge, and the primary judge was not given an opportunity to deal with it. I am not satisfied that it does not raise issues of fact that may have been subject to a different approach in terms of cross-examination in the primary proceedings.

Orders

9. For these reasons, I propose to decline to exercise my discretion to allow the notice of contention to be filed.

10. The applicant will pay the respondent’s costs for the application.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Burns.

Associate:

Date: 14 August 2018