The Contest between Mr Elali's and Mr Ramsey's Evidence
30Firstly, as to Mr Elali's evidence. At one point in his cross-examination Mr Elali was asked to focus on what Mr Ramsey had said to him about the defendants' leasing intentions. He replied saying that the defendants were, according to Mr Ramsey, "looking to rent out the property for two years". Mr Elali agreed that Mr Ramsey did not say to him that they "will rent it out for two years".
31Mr Elali struck the Court as an intelligent man, used to the nuances of commercial negotiation. The difference between words such as 'will' and 'looking to' were not lost on him. In my view on his own evidence he understood that he was getting a general declaration of goodwill from the Mahrs but not any kind of commitment upon which a commercially-minded individual could rely to order his or her affairs.
32And in my view Mr Ramsey also said to Mr Elali, in their conversations that the maximum term that the Mahrs had said to Mr Ramsey that Mr Elali could have in writing was a 12 months lease. Mr Ramsey conveying his instructions from his principals in this way would put a person such as Mr Elali on notice that the Mahrs were prepared only to bind themselves to a 12 months lease, and no longer.
33Mr Ramsey gave an account of the conversations between himself and Mr Elali which were in different words but were largely consistent with most of what I have set out above from Mr Elali's affidavit. Mr Ramsey said that Mr Elali expressed to him a view that in a longer term than 12 months would be of interest to Mr Elali and his wife and that he would check with Mr and Mrs Mahrs as to what term would be available. He got those instructions and they were consistent with what Mrs Mahrs indicated that she said to him. Mr Ramsey's evidence was that he told Mr Elali that the Mahrs would only agree to a 12 month maximum.
34I find Mr Ramsey said what he claims, for two main reasons: first, because it is consistent with Mrs Mahr's evidence, which I accept; and secondly, because it is consistent with what he later did. I accept his evidence when he says that a 12 month lease was on offer and said to Mr Elali that the owners "did not want to lease for more than two years", that there was "a good opportunity of leasing for two years" but that they "were only prepared to sign a lease for 12 months". In my view he was clearly conveying through these statements, in his evidence, which I accept, that Mr Elali had a 12 months lease but he would have to take his chances with respect to a two year lease, although currently things looked fairly good in that direction. Mr Ramsey says, and I accept, that Mr Elali then said that he agreed and wanted to go ahead with the lease.
35After those statements, in my view, it was quite clear that Mr Elali was prepared to sign a 12 month lease on the basis that he would assume the risk that he would not get a longer lease. But the prospects looked good at that time and that he still might get a two year lease, if the Mahrs' attitude did not change. Were it otherwise, in my view, a man of Mr Elali's apparent commercial sophistication would have asked for a longer-term lease.
36When asked in the witness box why he did not ask for a longer lease he said that he assumed that all that was available under the residential tenancy agreement was a 12 month period and that that was what he was used to. To some extent that evidence may be consistent with common experience: leases more than 12 months are rare. But as the standard form of residential tenancy agreement I have indicated makes clear there does not appear to be any 12 months limitation, in the standard form. It is surprising that Mr Elali did not ask for a confirmation of the longer term, if he thought that that was what was available. Moreover, if he thought, as he says he did, that it was important that the lease be for two years, and if he had wanted to press the point rather than take the risk, in my view he is not someone who would have been afraid to ask for a two year lease then and there. But he did not, in my view, because he did not believe that it was available on what Mr Ramsey had represented.
37Mr Smith of counsel submitted that I should accept Mr Elali's evidence. First he emphasises the general consistency between Mr Ramsey and Mr Elali's evidence. He points out that Mr Ramsey was cross-examined and largely agreed with much of what was stated in paragraphs 9 and 11 of Mr Elali's affidavit of 17 December 2013, apart from the last two lines. Secondly, he points out that there was not too much of formal reliance evidence that sometimes appears in these affidavits and that this instead was a fairly blunt unvarnished account of their conversation.
38As to the second point Mr Smith rightly points to the fact that the affidavit does not contain apparent exaggeration. But that is not to escape the fact that much of the difference between Mr Ramsey and Mr Elali emerges from evidence that they both gave orally in addition to what was in that affidavit. And this oral evidence made it clear that only a commitment for a 12 month lease was available. I accept all Mr Ramsey's oral evidence where he declined to accept the correctness of those last two lines of paragraph 11 of Mr Elali's affidavit.
39The effect of this, in my view, is that the representations of a two-year lease or, as the way the case is now put, of non-termination of a lease after 12 months, were not representations that were made. Really, even on Mr Elali's own evidence, there was no indication from Mr Ramsey that the Mahrs would not insist on their strict rights to terminate the lease after 12 months. Nor, in my view, was Mr Elali entitled to draw such an assumption from anything that was said to him. Nor, in my view, did he rely upon any such thing.