Natural & Great Pty Ltd v Lane Cove Business Park Pty Ltd

Supreme Court of NSW|2022-02-28|Before: Ward CJ, Ms J, Parker J

Judgment

HER HONOUR: Before me for hearing on 28 February 2022 was an application by the defendant in this matter (Lane Cove Business Park Pty Limited) by notice of motion filed on 16 February 2022, seeking an order (pursuant to rr 36.15 and 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and the Court's inherent jurisdiction) in effect to discharge an ex parte interlocutory injunction that was granted by Parker J on 10 February 2022 in the duty list (and extended twice, by consent, on a without admissions basis, on 14 February 2022 and then on 18 February 2022) and which was due to expire at 5.00pm on 1 March 2022.
The basis on which a discharge of the injunction was sought was, in essence, alleged non-disclosure of material facts to the duty judge on the ex parte application. Following the hearing of the application, I ordered that the injunction be discharged with effect from 5.00pm on 2 March 2022 and made orders against the plaintiff (Natural & Great Pty Limited) for indemnity costs in relation to the proceeding to date and the notice of motion. These are my reasons for so doing.

Background

The defendant is the registered owner of certain premises in Lane Cove on which there is a commercial kitchen facility from which the plaintiff carries on the business of preparation and supply of ready-made meals primarily targeted towards the health and fitness industry (see the affidavit affirmed 10 February 2022 of the sole director and secretary of the plaintiff, Mr Mark Richerdson, at [5]-[8]). The plaintiff also prepares and supplies certain foods to an Italian restaurant located in Barangaroo.
Mr Richerdson has deposed (see his 10 February 2022 affidavit at [9]) that the plaintiff occupies the Lane Cove premises pursuant to a lease dated 21 December 2016 between the defendant, as lessor, and Impero Foods Pty Ltd (Impero), a company of which Mr Richerdson is also the sole director and secretary and which is associated with the plaintiff (Impero) as lessee, the benefit of which lease was assigned to the plaintiff by a Deed of Assignment and Consent to which the defendant was a party (that deed being entered into on or about 12 July 2018).
Prior to the assignment of the lease to the defendant, Impero undertook in 2016 certain works at the premises, including the installation of the commercial kitchen facilities (2016 Works). The defendant consented to those works. For the purposes of the 2016 Works, lmpero obtained a complying development consent (CDC 16/12) to install the commercial kitchen facilities. Impero engaged a private certifier, Mr Erol Urludag, in connection with the 2016 Works. However, it appears (see Mr Richerdson's first affidavit of 10 February 2022) that an occupation certificate was not issued following completion of the 2016 Works.
Pausing here, in its written submissions on the present application the plaintiff asserts that there is no suggestion that the defendant was unaware of the state of works and of the lack of an occupation certificate; and contends that the defendant collected rent for the best part of four years in the knowledge of those matters. As I will explain shortly, it is certainly the case that by the time of the events the subject of the present dispute the defendant was aware that there was not an occupation certificate in respect of the premises - indeed that was the subject of a Notice of Breach of Covenant issued in October 2021. When it became so aware is not known to me. In any event, the significance of any earlier forebearance in insisting upon an occupation certificate for the 2016 Works to the present application is not apparent.
In about November 2020, consent was obtained from the defendant for the undertaking of further works at the premises (said to be at a cost of approximately $2.5 million) and for that purpose a second complying development consent was issued (CDC 20/18). Those works were completed in mid-2021 (the 2021 Works) and again it appears to be common ground that no occupation certificate had (or indeed has) yet been obtained. Mr Urludag was again appointed as the certifier. Since the completion of the 2021 Works, the plaintiff has been in occupation of the premises.
The plaintiff appears to contend that all relevant certifications in respect of the works have been obtained but there still seems to be an issue as to the need for a Building Information Certificate and Development Application to be lodged (and there has recently been a Notice issued by the Council in respect of these works to which I will refer in due course).
It is relevant here to note that pursuant to cl 7.1(e) of the lease the lessee was obliged to "comply with all laws and all legal requirements concerning its use and occupation of the Premises including any notices or orders which may be given by any Authority"; and cl 8.3 required the lessee to ensure that any alteration or additions to the Property were undertaken "in accordance with the laws and requirements of authorities".
Under the lease, it was an event of default (entitling the lessor to re-enter and take possession of the premises) if there was: a failure to pay rent for 7 days after becoming due and payable; or if the lessee failed to observe any other term of the lease within a reasonable time after service of written notice specifying the failure.
The term of the lease expired on 17 January 2022. However, cl 19 of the lease provided an option to renew, exercisable in writing no later than six months prior to the expiration of the lease (i.e., on or before 17 July 2021). (I note that Mr Richerdson in his second affidavit affirmed 23 February 2022 has calculated that the option remained exercisable until 19 July 2021 on the basis that 17 July 2021 was a Saturday: see at [30].)
On 19 July 2021, Impero executed a notice of exercise of option for a further term. Of course, by then Impero no longer held the benefit of the lease; it having been the subject of assignment to the plaintiff (a matter to which the defendant's solicitors drew the plaintiff's attention in a letter dated 27 August 2021, there expressly reserving the defendant's rights in that regard).
On 11 September 2021, the defendant's solicitors requested the plaintiff to provide "the" notice of exercise of option to renew, signed by the plaintiff for the defendant's review and approval "in lieu of the Impero Foods Pty Limited Notice" (the plaintiff places emphasis on these last quoted words). Following this, the plaintiff executed a notice of exercise of option in its own name (albeit that this was clearly not within the time required for exercise of option under the lease). The defendant's solicitors informed the plaintiff that they would refer the document to the defendant for instructions.
Pausing here, by this stage it must have been apparent from the communications (and the plaintiff was thereby on notice) that there was at least a potential issue as to the validity of the exercise of the option for a renewed term of the lease (a matter relevant when considering the complaint here made of non-disclosure of material matters to the duty judge) even though it seems that this was not expressly raised until a letter of 14 February 2022.
Meanwhile, it appears that there was default in the payment of rent (an email from the defendant's solicitors to the plaintiff's in-house General Counsel on 17 January 2022 refers to a failure by the plaintiff to make any rental or outgoings payments since August 2021; see also Mr Richerdson's first affidavit at [29] in which he refers to negotiations in relation to rent relief from early 2021). (The defendant claims that $77,251.10 was due and payable as at 16 February 2022. Some of that amount seems to have been conceded - and was paid to the defendant in the context of the orders made on the injunction application; part of the amount claimed has been paid into Court pending the resolution of the dispute - again, in the context of the injunction application to which I will refer shortly.)
By letter dated 11 October 2021, the defendant served a Notice of Breach of Covenant under s 129 of the Conveyancing Act 1919 (NSW) (Conveyancing Act), stating inter alia: The Landlord notifies you that you are in default of: 1. clause 7.1(e) of the Lease in that you have failed to provide to the Landlord an occupation certificate issued under the Environmental Planning and Assessment Act 1979 (NSW) authorising your use of the Premises following completion of alteration works carried out by you and being the works the subject of the Building Construction Certificates copies of which are annexed and marked "A" (Works). 2. clause 8.3(c) of the Lease in occupying the Premises after completion of the Works without having obtained a required occupation certificate. 3. clause 8.3(d) of the Lease in having failed to comply with the requirement and direction of the Landlord to obtain and provide to the Landlord an occupation certificate before occupying the Works carried out by you to the Premises. …
The notice specified that the breach was to be remedied within seven days.
On 18 October 2021, by email from the defendant's solicitors, the defendant extended until 31 December 2021 the time for the plaintiff to obtain an occupation certificate.
On 18 November 2021, Mr Urludag (as noted, the private certifier retained by the plaintiff), forwarded to Lane Cove Council two Written Directions Notices, one for each of the two CDCs. In respect of the first CDC (CDC 16/12), Mr Urludag noted against the entry "description of non-compliance" that "[t]he tenancy has been occupied without an Occupation Certificate and therefore not in accordance with the conditions of consent". The certifier indicated that "Council may be considering issuing an Order". Mr Urludag made the same remarks in the second notice, in relation to the second CDC (CDC 20/18). (These two notices are documents that the defendant says should have been drawn to his Honour's attention.)
Mr Richerdson's evidence in his first affidavit is that: since completion of the 2021 Works, the plaintiff has been obtaining the relevant certificates required to enable Mr Urludag to issue an occupation certificate in respect to the Property (see [18]); following receipt of the Breach Notice it continued to take steps to do so (see[19]); and that the plaintiff required "a fire safety certificate" in order for it then to be in a position to seek the issuing of an occupation certificate by Mr Urludag (see at [22]).
Pausing here, Mr Richerdson made other references in his first affidavit to a "fire safety certificate" (see [23], [31]) or "the relevant fire safety certificate" (see [25], [30]). This would appear to be the genesis for at least some of the confusion in relation to the issue of the so-called "fire safety certificate". In cross-examination on the present application (T 43.10-14) Mr Richerdson was at pains to explain that his present understanding is that there is no such thing as a "fire safety certificate"; rather, he says that the relevant document is a "fire safety statement" (though this was not made apparent in his earlier evidence nor in the submissions made to the duty judge on 10 February 2022).
On 8 December 2021, following the provision by the plaintiff (or its accountant) of certain financial information, the defendant issued a rent relief proposal. This was in the context of the regulations that were or had been applicable to rent relief for commercial premises during the pandemic. The defendant's property manager (Mr James Leggett) set out, in a letter addressed to Impero, the agreement by the defendant to reductions in the net rental (during the period from commencement of the prescribed period on 13 July 2021 as defined in the relevant regulation); and he sought the plaintiff's acknowledgement of receipt of those terms by signing and returning a copy of the letter. The relevant period of rent relief was stated to be 13 July 2021 until 31 October 2021.
By email on 10 December 2021, the defendant's solicitor sent to Ms Burger (the plaintiff's General Counsel) the rent relief proposal for approval, signing and return by the tenant and advised that the tenant "must re-commence rental payments".
By email on 22 December 2021, the defendant's solicitor wrote "following up" the return of the signed letter and reiterating the need for the tenant to recommence rental payments. (It appears that this fell on deaf ears).
The defendant says that, under cl 8 of Schedule 5 of the Conveyancing (General) Regulation 2018 (NSW) (i.e., the COVID-19 Pandemic Special Provisions), the plaintiff was obliged to renegotiate the rent in good faith. However, the defendant points out that the defendant's rent relief proposal was neither signed by the plaintiff nor was it the subject of any counter-proposal by the plaintiff (notwithstanding complaint from the defendant's solicitors on 17 January 2022).
On 4 January 2022, the defendant's solicitor sent Ms Burger an email noting that the time period to provide the required occupation certificate had not been complied with, relevantly stating that "[m]y client returns to office on 10 January 2022. I expect to receive instructions from my client at that point that they intend to proceed to exercise their rights as a result of the Notice of Breach of Covenant having not been complied with, without further notice"; and requesting that the tenant attend to payment of rental. The email expressly reserved the lessor's rights under the Notice of Breach of Covenant.
Pausing here, in the context of this communication, the submissions fervently made to the duty judge on 10 February 2022 (to the effect that the lock-out on 9 February 2022 was without notice and had come as a surprise to the plaintiff) are problematic to say the least. As at 4 January 2022, the plaintiff (through its solicitors) was clearly on notice of the expectation by the defendant's solicitor that instructions would be received from the defendant to proceed to exercise rights under the Notice of Breach of Covenant without further notice. That can only have been understood as notice of anticipated instructions to terminate the lease (whether by re-taking possession or otherwise).
In response, on Wednesday 5 January 2022, Ms Burger advised that she had "followed up" with her client and hoped to receive a status update by the week's end. (That was hardly a response designed to induce confidence in the defendant that some positive action would be taken in a timely manner to address the concerns that had been raised.)
On 10 January 2022, Ms Burger advised that the plaintiff was "aiming to obtain the Occupation Certificate no later than 31 January 2022 (blaming the delay on the onset of Omicron on or about mid-December 2021, which it was said had meant that the plaintiff had been "unable to ensure the onsite attendance of tradespersons to complete the necessary work" (there seemingly suggesting that further work was to be completed - as opposed to mere certification of compliance)). In the email, Ms Burger sought confirmation that the defendant would desist from taking any steps to exercise their purported rights in respect of the Notice of Breach of Covenant (there clearly cognisant of the threat of such action). As to rental arrears, Ms Burger advised that the accountant was "back from leave" and would review the rental arrears calculations and verify the quantum payable (to my mind hardly consistent with what the duty judge was told, namely that there were ongoing rental negotiations - there seem to have been no negotiations whatsoever).
The response from the defendant's solicitor that same day was that the matter had been referred to his client for instructions and that all rights were reserved. It must have been apparent to Ms Burger that no confirmation in the terms that had been sought (i.e., to desist from taking any steps to enforce the Notice of Breach of Covenant) had there been provided. The defendant's solicitor went on to say that "[w]ithout suggesting it would necessarily make a difference to [his] client's ultimate actions in the matter", the provision of information as to the steps taken to obtain the occupation certificate since the works were completed might assist.
Information of that kind was provided by Ms Burger (who had in turn been provided that information by Mr Urludag) on 12 January 2022. By way of an "update" on the status of the application, Ms Burger (at point 14 of her email) identified eight matters requiring certification in relation to fire safety. Items 1 and 7 thereof were as follows: 1. Automatic Fail Safe Device - BCA 2019 Amendment No 1 Clause D2.21 … 7. Exit Signs - BCA 2019 Amendment No 1 Clauses E4.5, E4.6, E4.8 and AS 2293-1-2005
Relevantly, Item 7 is what is now referred to as a "fire exit certificate". Item 1 also has relevance because, on Mr Richerdson's evidence, the plaintiff had installed an electric roller door as part of the work contemplated by CDC 20/18. This was the subject of evidence by Mr Richerdson in his 23 February 2020 affidavit as to a discussion with a fire safety consultant - Mr Rawlings - concerning the need for a certificate in relation to this item.
There was a further request by the defendant's solicitor for information in relation to this on 12 January 2022. The response from Ms Burger (some five days later on 17 January 2022) was that she would "endeavour" to obtain that information.
By email on 17 January 2022 at 2.18pm, the defendant's solicitor advised that the defendant remained concerned in relation to the continuing failure to provide the occupation certificate. There was a continued reservation of rights in that regard. In relation to the issue of rent, the email stated that the rental relief proposal remained without substantive response (something that Mr Richerson initially resisted in the witness box on the present application but ultimately conceded). It was also there noted that the plaintiff had failed to make any rental or outgoings payments since August 2021.
On 3 February 2022, the Council's compliance officer (Mr Lynch) sent an email (a copy of which is exhibited to Mr Richerdson's 10 February 2022 affidavit and which his Honour certainly saw). The email was addressed to Mr Richerdson's executive assistant (Giorgia Ragusa) and apparently responded to a request for a Certificate of Compliance in relation to the commercial kitchen facilities), stating: … Unfortunately, the use of the Premises is illegal as the Principal Certifier engaged by the occupant or landowner failed to issue an Occupation Certificate. Furthermore, there is outstanding matters related to a second Complying Development Certificate that was issued incorrectly (by the same Certifier). Council is aware that the Principal Certifier issued a Written Directions Notice, pursuant to Section 6.31 of the Environmental Planning and Assessment Act 1979, on 18 November 2021, in relation to these matters. Thus, Council cannot provide you a Certificate of Compliance for the Commercial Kitchen. The occupant or landowner will first need to complete a Building Information Certificate for all Building Work(s) that have occurred under the two Complying Development Certificates and then seek a Development Application for the 'Use' of the Premises. Council sought representations from Mr Mark Richerdson in November last year, however, have not received any response... [which somewhat belies the proposition put to Parker J on 10 February 2022 that his client had taken reasonable steps to obtain an occupation certificate and that it had not sat idly by "and just let this matter go into the Never-Never" (T 8.1-3).] …
The email stated that if Council did not receive any response related to the illegal occupation and use within a reasonable timeframe the Council may be required to issue an order requiring the tenant to stop using the premises.
Pausing here, there is no doubt that the duty judge saw this email (see the transcript of 10 February 2022). Relevantly, however, the duty judge seems to have focused on the issue of a fire safety certificate (no doubt because that was the matter to which reference was made in Mr Richerdson's affidavit and also for occupational safety issues); not the issue of unlawful occupation by reference to an outstanding occupation certificate per se nor the requirement for a building Information certificate for all works and the need for a development application for use of the premises. It is significant that this was not in terms drawn to his Honour's attention. It is hardly for a busy duty judge to be expected to be in a position to discern, for example, the difference now articulated by Mr Richerdson or his advisers between the relevant fire or other certificates. What is relevant is that what his Honour was being told (as is very clear from the transcript to which I will refer in more detail shortly) was in effect that this was some simple administrative matter that could be satisfied by provision of a simple form, which, in the context of the short minutes subsequently provided to his Honour, must have been understood to be a fire exit certificate, which once received would resolve any issue as to the lawfulness of use or occupation. This was simply not the case.
The event which precipitated the plaintiff's ex parte application to the duty judge was the retaking of possession of the premises by the defendant (by the disablement of the locks to the premises) in the evening of 9 February 2022.
As is clear from the above, this followed correspondence between the parties as to issues in relation to the rent payable under the lease (the defendant having claimed that the plaintiff was in arrears of rent and the plaintiff having claimed rent relief having regard to the current COVID-19 pandemic). However, the defendant re-took possession not in reliance on the claimed rental arrears but due to issues raised in relation to the lawfulness (or otherwise) of the plaintiff's occupation or use of the premises.
The plaintiff's evidence is that arrangements had been made for Mr Rawlings to inspect the premises on 10 February 2022 (apparently now said to be for the purpose of obtaining a fire exit certificate although Mr Richerdson's affidavit referred to a fire safety certificate) but that this could not take place due to the disablement of the locks by the defendant. There is no suggestion that the defendant had been informed in advance of this arrangement.
Pausing again here, the submissions made to the duty judge as to there having been an orderly process of working to obtain the occupation certificate (or whatever document was required from the Council) gloss over the fact that the defendant seems largely to have been in the dark as to steps being taken in that regard and was constantly having to press for information pertaining to the occupation certificate (or lack thereof). It is also inconsistent with the Council's complaint as to a lack of response from Mr Richerdson (to which I have referred above).

Ex parte application

On 10 February 2022, the plaintiff sought and obtained an ex parte injunction (on the usual undertaking as to damages). The application came before the duty judge (Parker J) at about 2.30pm that day. Then, as now, the duty list was not being conducted in person given the exigencies of the current pandemic. Rather, his Honour dealt with the matter via audio visual link.
It is clear from the transcript that his Honour had not had the opportunity to review in advance the material contained in the exhibit to Mr Richerdson's affidavit (see at T 3.3; T 3.15) (and the defendant says that his Honour was not taken to all of the documents in that exhibit). Mr Richerdson was present in the virtual court room (but not present in the same room as Counsel for the plaintiff) and accepted in cross-examination on the present application that he had heard various of the matters raised by Parker J as to the plaintiff's obligation of disclosure (see for example at T 15.16, 15.31-34, 15,39-47,16.1-7, 17.27-40, 19.9-14).
The application was put by Counsel for the plaintiff as one in relation to a case presently framed as an application for relief against forfeiture (although there was some resistance to the proposition that there be payment of the claimed arrears as the price of any such injunctive relief on that basis - and some debate with his Honour as to the worth of any undertaking as to damages if the plaintiff could not meet that relatively small amount).
It is clear that at the outset his Honour was concerned to understand the reason for delay (if any) in the matter and what had happened between the parties. It is also clear that his Honour was at pains to impress upon the plaintiff (through its legal representatives but also through its officer(s) present in the virtual court room) the obligation of full disclosure and candour and the consequences of non-compliance with it.
In support of the application, reliance was placed on Mr Richerdson's first affidavit. At [29]-[31], Mr Richerdson there deposed that: 29. I do not agree that there are rental payments owed by Natural & Great in the amount as alleged by Mr Drayton. Since approximately early 2021 Natural & Great and LBP [the defendant] have been in negotiation with respect to rent relief being provided as a result of the Covid-19 pandemic and pursuant to the relevant legislation enacted by the New South Wales government. Those negotiations are ongoing. 30. As a result of Natural & Great being locked out of the property, Mr Rawlings was unable to complete his required inspection. I am advised by Mr Rawlings that he is available to conduct his inspection immediately upon Natural & Great being able to re-enter the Property. Assuming Mr Rawlings does not identify any issue requiring further works, I am informed by Mr Rawlings and verily believe that the relevant fire safety certificate can be issued within 24 hours. 31. I am advised by Mr Urludag that he is unsure as to whether he is able to issue an occupation certificate or it must now be issued by Lane Cove Council. Once a fire safety certificate has been issued, Natural & Great will be able to submit all certificates required for the issuing of an occupation certificate (to either Mr Urludag or Lane Cove Council) within 5 business days.
Relevantly, I note that Mr Richerdson deposed that he was informed by Mr Rawlings and verily believed that the "relevant fire safety certificate" could be issued within 24 hours, and that he was advised by Mr Urludag that Mr Urludag was unsure as to whether he was able to issue an occupation certificate or if it must now be issued by Lane Cove Council. Mr Richerdson continued on to depose that once a fire safety certificate had been issued the plaintiff would be able to submit all certificates required for the issuing of an occupation certificate to either Mr Urludag or Lane Cove Council within five business days.
The matters to which his Honour raised issue in the course of the interlocutory application on 10 February 2022 included the issue as to rent. This was raised in the context of the question of delay. His Honour was informed (at T 8.39ff) that: The first thing is that that rent is rent that arises during the relevant period of the COVID legislation and it is the subject of, on my client's view, negotiation and an obligation, on the landlord's part, to negotiate. The landlord will no doubt say there is no relief available, it is payable, but there is a dispute about that. The second thing […] I will say about that is that there has been, so far as I am aware ‑ I have not sighted a breach notice in respect of that rent ‑ it is referred to in the most recent correspondence from the defendant's solicitors, but it is not in the breach notice that was issued in October, that was acted upon when the landlord re‑entered. That's my understanding.
His Honour asked what basis there was for saying that the breach notice was invalid and Counsel for the plaintiff responded that "I am not in a position to suggest that the breach notice is invalid" (T 9.8) (although I note that in submissions on the present application there is now a submission that the breach notice is invalid). In any event, his Honour queried the position, in circumstances where his Honour understood the summons to be seeking damages for wrongful termination of the lease. Counsel for the plaintiff then said (at T 9.21ff): The termination would be wrongful in circumstances where there is a course of conduct embarked on between the parties in relation to the provision of the certification and the defendant has, on one view of it ‑ and I don't have a full understanding of the matter at the moment ‑ but it appears that there is an argument available that the defendant has allowed the plaintiff to remain in occupation, notwithstanding the Occupation Certificate issue and ‑ rather, has required the Occupation Certificate to be provided within certain time stipulations, which have shift[ed] from time to time, and the last exchange of correspondence, it may ultimately be contended, was not sufficient to suggest to the plaintiff that it would not be afforded more time to obtain the Occupation Certificate. So it may be that there is an estoppel argument available; a waiver argument would be difficult, having regard to the time ‑ the terms of the lease.
In response to his Honour's observation that he had just been told that an estoppel argument was not made based on the correspondence, Counsel for the plaintiff said (at T 9.38-45) that: I don't make an estoppel argument based on the correspondence - … ‑‑as to occupation. Well, it may be based on the course of conduct that predates the correspondence, when read together with the correspondence.
His Honour observed (at T 9.47ff) that: … You had better take me to that, because the correspondence is completely clear. No promises are made at all, in the correspondence that I have been taken to, and on the material that I have been taken to it would be hopeless to argue that there was something wrong. You have accepted, quite properly, that this is your client's problem. Now, that doesn't mean that your client may not have a claim for relief against forfeiture.
There was then some debate as to the issue in relation to the payment of funds into Court as part of the price for an injunction to be granted, in the course of which Counsel for the plaintiff said (at T 12.11ff): … I don't understand there to be a dispute that the period referrable to those arrears, if they are arrears, is when the COVID legislation was in place and therefore I would submit it is plainly a case where there's a negotiation that the parties are obliged to undertake, and I'm instructed that that is occurring and will occur.
I interpose here to note that on the present application the defendant says that this was not full disclosure, particularly in circumstances where there had been no substantive response to the rent relief proposal issued on 8 December 2021. Certainly, there is no evidence to support the proposition that there was any ongoing negotiation - rather, the defendant had been pressing (unsuccessfully) for a response from the plaintiff. A response to the effect that an accountant will verify calculations on return from leave is hardly negotiation.
Counsel for the plaintiff went on to say (at T 12.17ff): I'm trying to give your Honour some comfort and telling your Honour that if this were relief against forfeiture on the basis of non-payment of rent, of undisputed rent which falls outside any COVID period, it would be being paid this afternoon but that is not what it is, but that's the best that I can do for your Honour. I should say one last thing. The position may be different on Monday but doing this urgently, and my client obviously not signing up to something where he has told the Court he is going to do something, the director of my client, and then defaulting, rather I am frankly telling your Honour what is capable of being done in the immediate short term. … … I can just say that, and it's negotiated with this landlord, as it has a right to do, in relation to a [sic] amount of asserted arrears, but it's accepted that it will be an undisputed amount this afternoon.
Counsel for the plaintiff sought from his Honour a regime for the plaintiff to regain occupation of the premises overnight (or by close of business the following day), to have occupation over the weekend and then have the matter return on Monday. Counsel said that "[i]n the interim, a substantial payment would be made of rent which would bring it up-to-date, as far as the plaintiff was concerned" but he accepted that there was a dispute as to another amount. It was submitted that this was "not perfect, but for one business day it is sufficient".
There was also debate about whether (in circumstances where there seemed to be an issue as to the ability to pay an amount of around $80,000) the plaintiff was good for the undertaking as to damages that was being proffered. As to this issue, it was accepted by Counsel for the plaintiff that "If we have an argument on Monday, because the defendant comes, I will, no doubt, have a harder task". His Honour then enquired as to what rent had been paid and for what period; and there was debate as to the applicability of the COVID rent relief regulations.
Then (at T 15.3) his Honour asked whether there was a dispute about the validity of the renewal, to which the response from Counsel for the plaintiff was "No, not so far as I'm aware". His Honour queried this, saying (at T 15.7-9) that: That can't be. I find that hard to understand because, if the defendant had issued some sort of default notice and purportedly terminated, it doesn't seem consistent with the exercise of the option. …
There were then instructions obtained by Counsel for the plaintiff via a text message to say that the option had been "purportedly exercised" in June last year (which it was noted would predate the notice); and a reference to cryptic instructions ("a bit like being half pregnant") that it was not "completely accepted" (see at T 15.25-29). Counsel for the plaintiff went on to say "but in any event, until re-entry my client certainly asserted and understood that there was a further lease that had been entered into pursuant to the exercise of the option".
Significantly, for the purposes of the present discharge application, in response to this his Honour said (at T 15.31-34): I hope your client understands that if there's anything that your client knows that might lead the Court or might militate against the Court granting this injunction ex parte, it's your client's affirmative obligation to disclose it.
His Honour made clear that he did not doubt that Counsel for the plaintiff understood this (and I interpose here to note that on the present application the defendant does not accuse Counsel for the plaintiff of any deliberate non-disclosure) but went on to emphasise (at T 15.39-47) that: … I'm just saying because I know that there are officers of your client who are on the line who are monitoring these proceedings. They need to appreciate that it's not enough to put forward a case and to have counsel present a case to the best of counsel's ability based on what counsel knows. It is the client's obligation, and it is an obligation of affirmative disclosure, not an obligation to just answer questions honestly when asked by the Court if the Court is clever enough to think of them.
Counsel for the plaintiff reassured his Honour that "the officers have heard what your Honour has said" (at T 15.49). His Honour then emphasised (at T 16.1-8) that: I hope they appreciate that if there is a failure to comply with that obligation that it will be open to the defendant to ask the Court to discharge the injunction even if otherwise an injunction would have been justified. Let me make that clear, that even if the granting of the injunction was justified the Court often takes the position that if there has been a failure to disclose material matters then the injunction will be discharged, no ifs, no buts, immediately.
Counsel for the plaintiff acknowledged this, saying that "It is close to as of right, I respectfully agree" (see at T 16.9) (though, I note that the present discharge application was nevertheless resisted even though non-disclosure was ultimately conceded - see below).
There was further debate about the question of rent. At T 17.28ff, his Honour observed that even though, on the evidence, the immediate cause of termination was not the payment for rent, for his part, a tenant in the position of the plaintiff in making an application of this sort was "really obliged to disclose fully the rental position because it could be inferred that payment or non-payment of rent was a critical matter from the point of view of the landlord" and noted that even if the landlord was restricted by COVID regulations from terminating on the grounds of failure to pay rent, the legislation still allowed the landlord to terminate on other grounds and that non-payment of rent would be arguably a reasonable motivation for the landlord to do so.
His Honour then turned to the question of the necessary consents and said that those were important. His Honour asked whether the "non-existence of those consents" meant there was any difficulty in the conduct of the business or any restriction on the conduct of the business (at T 17.42-45). Counsel for the plaintiff answered this by saying "[n]ot in a practical sense. That's the first point" (see at T 17.46). When asked what that meant, Counsel for the plaintiff said (at T 18.1-3): If your Honour allows my client back into the business tomorrow, for example, the absence of the consent won't stop him from making his food and putting it in boxes and sending it out.
His Honour said (at 18.5ff): That may only be because no one is prohibiting him from doing it but you are not asking the Court to give you an injunction to do something that is illegal or contrary to the terms of the lease. … No, really you can't. The Court is not going to allow itself to be made the instrument of continuation of the business if the continuation of the business is unlawful.
Counsel for the plaintiff did not accept that the continuation of the business was unlawful and his Honour went on to say (at T 19.9-14): I know you're not accepting that, but I'm asking for full disclosure from you and by all means take instructions. There are two issues. One is, is there some difficulty with illegality in terms of compliance of council conditions of consent for development, that is, is there a problem with having failed to comply or fail to comply with fire regulations or the like. This is a workplace after all.
His Honour then distinguished between legal requirements generally (council regulations, employment law and the like) on the one hand and what the lease itself required, noting that often leases required that any activity at the premises be conducted lawfully and in accordance with all relevant consents). After taking instructions, Counsel for the plaintiff said (at T 19.42ff): … your Honour asked me a question which I'm obliged to address and that is the issue in relation to the illegality or otherwise of any continuing occupation by the plaintiff absent an occupation certificate. The issue is somewhat complicated by the attitude that's been taken by the council because I can tell your Honour that the council is aware of the issue, the first point. The second point is the council has sent correspondence to my client copying in the landlord which ultimately appears to have perhaps precipitated action by the landlord. That correspondence, with the greatest of respect to the author, is unclear as to the attitude taken by council. It uses the word "illegal" in terms of my client's occupation and suggests that in the absence of an occupation certificate the continuing occupation is illegal which, of course, is an opinion expressed by the author who is the compliance officer who is not determinative of the issue. But the author, it would seem on a fair reading of the email which is at page 235 of the exhibit, suggests that a form needs to be filled out by the landlord and that is important because there is not a notice given that my client is no longer permitted to occupy the premises which would be within the powers of council, rather the suggestion to remedy the situation appears to be filling out a form which is attached to that email. So I can tell your Honour that there is a concern that's been raised by council, but council is aware of the situation and has not required the vacation of the property and rather has suggested that certain administrative steps be taken. Whether that, returning to your Honour's issue, amounts to a situation where the Court would somehow sanction the illegal occupation of the premises, I can say to your Honour that that is an open question and it would be a concern. But the Court would take comfort again in the short term of council being aware and sending correspondence as recently as 3 February so within the last week or a week ago, addressing its knowledge of the issue.
At this point what his Honour was looking at (i.e., the email found at p 235 of the exhibit to Mr Richerdson's first affidavit) was the 3 February 2022 email from Council's compliance officer, to which reference was made above. His Honour expressed the concern that what was missing was a fire safety certificate; and his Honour was reassured by Counsel for the plaintiff (at T20.24-27) that: So am I, but that's what's being provided first thing tomorrow and if necessary I'm sure that I would get instructions to offer your Honour an undertaking that if the certificate is not forthcoming tomorrow morning my client will not use the premises.
His Honour then indicated that "on that basis" he would grant the injunction but that there should be undertakings both as to the payment of the money (in relation to the rent) and that if the certificate was not obtained (there, clearly referring to the fire safety certificate that had been discussed) no commercial activity would take place.
What was then discussed was for Counsel for the plaintiff to seek instructions on the undertakings; and Counsel for the plaintiff suggested that he would propose some short minutes of order that reflected this, which would be sent through to chambers. His Honour acceded to this and at the conclusion of the ex parte hearing, his Honour then invited the plaintiff to submit short minutes of order encapsulating the undertakings that his Honour had in mind which would be given by the plaintiff.
At 4.28pm, the plaintiff's solicitor sent draft short minutes of orders to Parker J's Associate. Order 4 recorded the undertakings that the plaintiff gave. It is noted that the undertaking was framed that: until a fire exit certificate is issued in respect to the premises, the Plaintiff will not use the premises for any commercial purpose.
It is significant that the undertaking was framed by reference to a "fire exit certificate" in circumstances where the debate to that point (and Mr Richerdson's own affidavit) had referred to a fire safety certificate. It appears that there was some amendment to the draft short minutes made by his Honour (but the change from fire safety certificate to fire exit certificate was not of his Honour's making). The significance of the difference appears to be that a fire exit certificate per se would not have rendered lawful any then unlawful occupation by reason of the absence of an occupation certificate (it being but one of a number of certificates that might be required and the relevant document for an occupation certificate being a fire safety "statement" or, as Mr Richerdson originally described it, certificate).
Mr Richerdson in cross-examination made clear that it was he who had advised the plaintiff's solicitor that the document required was a "fire exit certificate"; although he was not sure when.
His Honour's Associate replied, at 4.46pm, indicating that a sealed copy of the orders would be available via the online registry.

Council's position

Meanwhile, however, at 4.12pm, the compliance officer at Lane Cove Council, Mr Lynch, sent an email to Mr Urludag, the plaintiff's certifier, saying: Good Afternoon Erol, As advised in our previous correspondence, you failed to issue an Occupation Certificate for the original Complying Development Certificate and then issued a second Complying Development Certificate to make alterations to the original in contravention of the Environmental Planning and Assessment Act 1979. Council has determined that you have not fulfilled your obligations as Principal Certifier and therefore all Building Work(s) associated with your Complying Development Certificate(s) are invalid. I have drafted the Notice of Intention to issue a Stop Use Order of the Premises which will be served after final approval is given. Council will require an application for Building Information Certificate and a Development Application for the Use/Activity of the Premises to be lodged within twenty-eight (28) days. Should you have any questions or require further assistance, please do not hesitate to contact me.
That email was copied to Mr Richerdson. The defendant emphasises that Parker J was not informed of it (before or after the entry of the 10 February 2022 orders).
Counsel for the plaintiff had informed his Honour (at T 6.32-40) that: I can submit to your Honour that that is plain, that it has progressed substantially, and to the point where, if my client had not been locked out overnight, the final inspection, on my instructions, was to take place today. That was arranged before any locking out. There was to be a fire safety person attend the premises this morning for the purpose of obtaining the final certification, which would have dealt with the matter and, at least on my client's view of the world, would have then given rise to the issue of the long-awaited occupation certificate.
Moreover, although the defendant's solicitors had written on 4 January 2022 anticipating receipt of instructions on 10 January that the defendants would exercise its rights under the s 129 Conveyancing Act notice, the plaintiff's Counsel told Parker J that, since 31 December, the plaintiff "had taken steps to remedy the issue and the defendant … has not given any further warning that it would seek to re-enter the premises".
In the course of submissions on the present application, the defendant submitted that it should be inferred that Mr Richerdson would have promptly become aware of the 4.12pm email given the situation at the time. However, Mr Richerdson's evidence in cross-examination (which had somewhat of the ring of truth to it) was to the effect that Mr Richerdson, being very stressed by the application before the Court, was otherwise occupied at 4.12pm and not reading emails on his laptop.
In any event, that email came through on 10 February 2022 and Mr Richerdson accepted he would have seen it at the latest on the following day. Relevantly, the email referred to failure to issue an occupation certificate for the original complying development certificate, the issue of a second complying development certificate, and a determination that the obligations of the principal certifier had not been fulfilled and that all the building works associated with the complying development certificate were invalid. The email said that the officer had drafted a Notice of Intention to Issue a Stop Use Order of the premises which would be served after final approval is given and noted that council would require an application for building information certificate and a development application for the use or activity of the premises to be lodged within 28 days.
It appears from the submissions made on the present application, that the plaintiff contends that there was no obligation to draw the 4.12pm email to the attention of the Court (or seemingly the defendant) on the basis that this improved the plaintiff's position (see below) and in circumstances where there was by then a consent regime in place. (It seems to me that the reliance placed on the without admissions consent regime misapprehends the import of obligations of disclosure in relation to ex parte applications).

11 February 2022 inspection of premises

On 11 February 2022 (wrongly noted in Mr Richerdson's 23 February 2022 affidavit as taking place on 10 February 2022 but corrected by him in cross-examination), Mr Rawlings attended the property. Mr Richerdson deposes that this was for the purpose of carrying out works required in order for Certificate No 7 - the fire exit certificate - to be satisfied. Mr Richerdson has deposed (at [17]) that, on that occasion, Mr Rawlings raised an issue as to the installation of the roller door expressing the opinion that it was not compliant - an issue relating to Certificate No 1 in the list of certificates said to have been required for an occupation certificate to issue. (Mr Richerdson has since deposed that as at 23 February 2022 an interim certificate had been issued by Credible Fire and he was anticipating a final Certificate No 1 by 25 February 2022 (on completion of the necessary works)). However, Mr Richerdson's understanding (at [22]) is now that an occupation certificate can no longer be issued in respect to the respective works and that a building information certificate must be lodged (though he describes this (at [25] of his affidavit) as presenting "an administrative issue which Lane Cove Council considers can be rectified by its proposed procedure").
The plaintiff's solicitor has deposed that on the same day (11 February 2022) he spoke to Mr Lynch at the Council and received an assurance that the plaintiff could continue operating from the property and that "it just needs to complete the relevant forms to ensure administratively everything is correct". In that conversation, Mr Lynch is said to have advised that the process would take seven to 14 days (and that the first complying development certificate was in effect invalidated by the subsequent development certificate being issued without an occupation certificate being in place). Mr Lynch is said (by the plaintiff's solicitor) to have advised that Council could issue a Notice of Intention to Issue a Stop Use Order "but other than that it will only take further steps if that notice were ignored and it didn't hear anything further".
I interpose to note that it is somewhat ironic that at one point in the plaintiff's submissions Mr Lynch's opinion as to the illegality of use was not accepted by the plaintiff and yet reliance is here placed on what Mr Lynch said as being of comfort to the plaintiff.

Extensions of the injunction

As noted above, the interlocutory injunction (which was initially expressed to continue until 5 pm on 14 February 2022) was extended twice. On each occasion the Court has expressly noted that: the defendant's consent is given without admissions and without prejudice to its rights to have the injunction restraining the defendant discharged; and upon any application for the injunction to be extended, the plaintiff shall bear the onus of persuading the Court that the order should be continued.

16 February 2022 request for provision of the certificates

On 16 February 2022, the defendant's solicitor requested provision of the certificates referred to in item 14 of the 12 January 2022 email sent by Ms Burger (see above) (other than the fire exit certificate) and provision of a copy of the "fire safety certificate" (if one had been obtained).
In response to this, the plaintiff's solicitors expressed their disagreement with the proposition that "the fire exit certificate" was one of a number of certificates which had to be provided; asserted that the fire exit certificate provided on 11 February 2022 was the certificate referred to in the court orders; and said: As detailed in our letter dated 15 February 2022, references to the "fire safety certificate" were made in the context of that term being used in Mr Richerdson's affidavit of 10 February 2022. More specifically the court was advised that the plaintiff needed to obtain one further "fire certificate" in order for it to have all necessary "fire certificates" to obtain an occupation certificate.
With respect, that is not what the duty judge was told in terms (see extracted transcript above); and how his Honour would be expected to have understood this in the absence of proper explanation is not made clear.
The letter went on to enclose a Fire Safety Statement and an attached Final Fire - Installation Certificate, which it was said completed what the plaintiff understood was needed for it to be able to obtain an occupation certificate. How this is consistent with the conversation with Mr Lynch to which the plaintiff's solicitor has deposed is also not made clear.

Notice of Intention to Serve Development Control Order

On 24 February 2022, Lane Cove Council issued to the defendant a Notice of Intention to Serve a Development Control Order pursuant to s 9.36 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) (the Notice of Intention). The covering letter noted that a failure to comply constituted an offence pursuant to s 9.37 of the EPA Act. The notice stated: TAKE NOTICE that LANE COVE COUNCIL (Council) intends to give to you a development control order in terms of Item No 1 in the table to Part 1 of Schedule 5 the Environmental Planning and Assessment Act 1979 (EPA Act) to: 1. Cease undertaking the Activity of commercial occupation in the Building until such time that a planning approval is granted to carry out this activity. on terms set out in the Order annexed to this Notice as the Annexure marked with the letter "A" (Order) for the reasons set out in the Order in circumstances where the Premises are being used for a purpose for which a planning approval is required but has not been obtained. 1. An occupation certificate has not been obtained by any consent authority. 2. Building is being used in a manner that constitutes or is likely to constitute a life-threatening hazard or threat to public health or public safety, and 3. A building requiring a planning approval has been erected without approval.
The Notice of Intention advised that the defendant had 28 days to make representations.
The plaintiff says that, on receipt by it of a similar notice, it re-listed the matter to draw this to the attention of the duty judge (then Henry J). I cannot, however, see anything on the transcript from 25 February 2022 in which this was expressly drawn to her Honour's attention.

Legal Principles

A high standard of candour and responsibility is required of parties who seek ex parte orders. Spry states in this regard in The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (6th ed, Sweet & Maxwell, 2001) (Spry) that: Where an application is made ex parte, the obligation of the plaintiff is not merely not to mislead the court by expressly or impliedly making representations that are untrue, as is otherwise ordinarily the case in an inter partes proceeding, but in addition he is under the duty of disclosing to the court all matters which are within his knowledge or would have been discovered by proper enquiries, and which are material to the proceedings at hand and tend in favour of the absent party. A matter is regarded as material for these purposes either if it is relevant to the existence of a power to grant an injunction or if it is one of those circumstances that the court takes into account in exercising its discretion. Furthermore, the better view is that it does not have to be shown that the undisclosed matter in question would, if established, have been decisive, for one reason or another, against the party who has not made a proper disclosure. It is sufficient that it is relevant and of such a nature that it might have been regarded by the court as of weight; and so, for example, it has been said to be appropriate to enquire whether there has been "any misstatement or omission of any important facts."
In Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213 (Savcor) Gillard AJA agreed with the summary of the principles by Gibson LJ in Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350; [1988] 3 All ER 188 (Brink's Mat) at 1356, stating at [36] that: In Brink's Mat Ltd v Elcombe, Ralph Gibson LJ conveniently summarised the principles. His Lordship noted that "the material facts are those which it is material for the judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers." His Lordship observed that the applicant must make proper enquiries before making an application. If a material non-disclosure is established the court would be astute to ensure that the plaintiff obtaining an ex parte order without full disclosure is deprived of any advantage he may have derived, and further that whether a fact not disclosed "is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the facts to the issues which were to be decided by the judge on the application." His Lordship pointed out that the innocence or otherwise of the non-disclosure and the failure to understand its relevance are important factors to take into account. [footnotes omitted]
See also the summary of principles by Beach J in Orpen v Tarantello [2009] VSC 143 at [27]; and the test of mutuality discussed in Lake Macquarie Conveyancing Pty Ltd v Carr [2021] NSWSC 1295. In Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955, Allsop J, as his Honour then was, said at [38]: In an ex parte hearing, it is the obligation of the party seeking orders, through its representatives, to take the place of the absent party to the extent of bringing forward all the material facts which that party would have brought forward in defence of the application: Thomas A Edison Ltd v Bullock(1912) 15 CLR 678 at 681-82 per Isaacs J. That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not mis-stating the position. It means squarely putting the other side's case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders. It is not for the Court to search out, organise and bring together what can be said on the respondents' behalf. That is the responsibility of the applicant, through its representatives.
As Parker J made clear when the matter was before him in the duty list, the need for candour is particularly acute on duty judge applications, where there is often insufficient time to review affidavits and documentary evidence in detail.
As to the consequences of non-disclosure, these are seen as providing a deterrent effect (see AAMAC Warehousing and Transport Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 970 where Slattery J noted that the normal result of non-disclosure was the discharge of the order, although the Court retains a discretion); and see Rees J in Showcase Realty Pty Ltd v Circosta [2021] NSWSC 355.
The defendant emphasises that while there is jurisdiction to order a fresh injunction in the place of any injunction which might be discharged, the fact of non-disclosure is relevant to the exercise of that jurisdiction. In Savcor (at [88]), their Honours endorsed the statement in an earlier edition of Spry to the effect that: Here in deciding whether, despite a material non-disclosure, an injunction should be granted or continued, as the case may be, the court takes into account the conduct of the plaintiff, the importance of the relevant undisclosed fact and the hardship or prejudice that may be caused according to whether relief is granted or refused, as well as the desirability, as a matter of public policy, that full disclosure should be made to the courts on ex parte applications. If a non-disclosure is not innocent, but the plaintiff has acted culpably, the court is particularly reluctant to grant an injunction or continue an existing injunction, but this also is a discretionary consideration, of more or less weight according to all the circumstances.

Defendant's submissions as to non-disclosure

The defendant's application to set aside the injunctive relief granted on 10 February 2022 is put on both of the bases identified in Garrard (t/as Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 (Garrard) by Mahoney AP as giving rise to rights which may justify the discharge of the order: first, a breach of the duty of candour; and, second, where the party has not been heard on the application. The defendant contends that the injunction granted was entered against good faith and in its absence. (Pausing here, as adverted to earlier, the defendant was on notice of the application and its solicitor observed the proceeding but did not appear on the application, which was of course its decision and a neutral factor as Parker J there noted; and there is no dispute that it was not relevantly heard on the application.)
The defendant submits that the plaintiff breached the obligation imposed on it in fundamental respects, and in the face of repeated statements from the duty judge that it give full disclosure. Further, the defendant maintains that the plaintiff acted culpably.
The defendant emphasises in this context that Parker J was assured that compliance could be attained by filling out a form and that the Lane Cove Council had not required the plaintiff to vacate the premises. Complaint is made that the only document that his Honour was shown bearing directly on the Council's position was Mr Lynch's email of 3 February 2022; and in particular that his Honour was not shown Mr Urludag's notices dated 18 November 2021, which made plain that no occupation certificate had been issued in respect of both CDCs.
The defendant says (and in essence it is now conceded) that it was not correct to inform the duty judge that only a form had to be filled out to regularise the position, referring in this context to Mr Richerdson's supplementary affidavit, affirmed on 23 February 2022, where Mr Richerdson refers to the discussion with Mr Rawlings (albeit not until 11 February 2022) who informed him that the plaintiff might need an additional certificate (Certificate No 1 in the list of certificates referred to in the information provided on 12 January 2022) and that, as at the date of swearing that affidavit, the final certificate required for this item had not been obtained. (The proposition that there was only one form to be filled out is in any event inconsistent with the information on 3 February 2022 that contemplated the lodgement of a building information certificate and development application).
Further, the defendant emphasises that his Honour plainly stated that he required the plaintiff to procure the issuing of a fire safety certificate (not surprisingly since that was the terminology used in Mr Richerdson's own affidavit) whereas the orders forwarded to his Honour's Associate stipulated the provision of a fire exit certificate. The defendant notes that those certificates are not synonymous; that a fire safety certificate (or, as it seems it is properly known, a fire safety statement) issues upon other certificates (namely certificates of compliance, including the fire exit certificate) being issued. The defendant emphasises that an occupation certificate cannot be issued without a fire safety certificate (or statement); and it is noted that Parker J was not told of the legal and practical differences between the two certificates, nor was his attention drawn to the fact that the short minute of orders emailed to him did not reflect what he had required during the course of argument on the application. The defendant says that those differences have had real consequences in the events which have occurred (in particular, as I apprehend it, the issue of the Council Notice of Intention on 24 February 2022).
In addition, complaint is made that the plaintiff did not inform Parker J of the Council's email sent at 4.12pm (which it is said falsified such assurances as his Honour had received, not least because the Council had concluded that all building works associated with the two CDCs was invalid). It is noted that the third paragraph of that email undermined the contention that merely a single form had to be completed, Mr Lynch having notified Mr Urludag that an application for a Building Information Certificate and a Development Application had to be lodged.
The defendant submits that it should be inferred that the 4.12pm email was read by the plaintiff's agents promptly (if not before the conclusion of the hearing or before the short minutes were forwarded to his Honour) because Mr Richerdson would have been attentive to incoming communications about planning matters, having regard to what his Honour had said during the ex parte hearing. Further, it is noted that Mr Richerdson, in his affidavit affirmed on 23 February 2022, dealt with the subject matter of that email without asserting when he received it (it being suggested that his failure to give evidence in chief on this issue permits a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference to be drawn - the defendant citing Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-9).
The defendant submits that the plaintiff was obliged to correct any statement which it had made to the Court upon realising it was mistaken (a fortiori if this was before orders had been made) and there is complaint that, by not so doing, the position is that the defendant would not have become aware of the Council's position in a timely manner but for its challenge to the continuation of injunctive relief.
Whether or not the plaintiff formed the view that the Council's notification did not threaten its right to continuing possession, the defendant contends that this was a matter which should have been brought to the attention of the Court, noting that materiality is to be decided by the Court and not by the assessment of the plaintiff or its legal advisers (see Savcor at [36]) and that it was the plaintiff's affirmative duty to present all the material facts which the defendant would presumably have brought forward in its defence (without sifting that information).
The defendant says that, not only did the plaintiff fail in its duties, but also the defendant was disadvantaged because no fire safety certificate (or statement) has been issued (though I interpose to note that it appears from the plaintiff's evidence that the position in this regard may have changed). In any event, it is noted that the defendant has now received the Council's Notice of Intention, which exposes it to potential penalty.
As to other matters, the defendant says that that it was incorrect to suggest, as the plaintiff did, that the defendant had not negotiated any rent relief, or that the negotiations were occurring. The defendant says that, on the contrary, what had occurred is that the defendant had proposed the terms of future payments having regard to the plaintiff's figures, only for the plaintiff to ignore its proposal for over two months. It is also said that it was not open to the plaintiff merely to assert its belief about the validity of the exercise of the option and that the communications in relation thereto should have been provided to the duty judge. It is said that, had that been done, his Honour would have apprehended that there was a substantial doubt (at a minimum) in relation to this issue. (Indeed, it is noted that one of the occasions where his Honour emphasised the importance of full disclosure occurred in the context of the plaintiff's counsel's assertion of his client's belief). Again, the defendant submits that it was not for the plaintiff to determine what it considered to be material; and that, having regard to the email exchanges, the duty could only be discharged upon its putting before the court the documents for the duty judge to assess.
Thus, the defendant contends that the injunction originally ordered by Parker J should be discharged by reason of the non-disclosures. In that regard the defendant points to the fact that his Honour more than once emphasised the importance of disclosure as a condition of the Court granting relief. It is said that, critical to the grant of relief, was his Honour being satisfied that the Court was not being asked "to do something that is illegal or contrary to the terms of the lease"; whereas it is said that this is precisely what occurred.
As to the consequence of the planning issues that have arisen, the defendant pointed to the affidavit from a Building Regulation and Fire Safety Engineer, Mr Harriman, as to the consequences of the fact that no occupation certificate was obtained for the commencement of a change of building use for the whole or any part of an existing building. Suffice it to note that the defendant is concerned that the ongoing occupation of the premises is unlawful; and says that this, in turn, involves a breach of cll 7.1(e) and 8.3(c) of the lease. I do not propose here to summarise the matters the subject of Mr Harriman's affidavit (noting that objection was taken to Mr Harriman's evidence insofar as it purported to state matters of law and I read parts of it as simply his understanding). However, the relevant matter to note is that no potential issues of this kind were drawn to his Honour's attention; his Honour being clearly left with the impression that there was no more than an administrative issue to be dealt with (that involved the mere filling out of a simple form).
The defendant emphasises that the duty of the plaintiff was to disclose to the duty judge the communications to which reference has been made (whether or not the undisclosed matters would, if established, have been determinative in relation to the application for interlocutory relief.
The defendant says that it has been prejudiced by the non-disclosure, having been denied possession of the premises; and now being the exposed to a penalty and the subject of the Council's Notice of Intention. In addition as noted above, the defendant says that Parker J was given a false impression that the plaintiff was attentive to the issue of rent when this was not the case; and his Honour was not precisely informed of the problems attending the plaintiff's status as a tenant arising from the correspondence about the option.
The defendant thus seeks a finding that the non-disclosure on the part of the plaintiff was culpable (in the sense considered in the authorities referred to above).

Plaintiff's submissions

The plaintiff filed two sets of submissions: the first set dealing in substance with its contention that there should be a continuation of the interim regime pending determination of the substantive rights of the parties in respect of the lease, including issues as to whether the defendant is entitled to terminate the lease; whether the plaintiff is otherwise entitled to relief against forfeiture of the lease; and whether the plaintiff has validly exercised the option to renew contained in the lease; (the supplementary set dealing with the issue of disclosure).
As to the continuation of the interim regime, the plaintiff (as it did in essence before the duty judge) submits that there is a serious question to be tried in relation to the claims for relief against forfeiture and damages and/or specific performance arising from what it characterises as the defendant's forcible self-help and invalid termination. It also notes that in the final hearing specific performance is sought of the parties' agreement for a renewal of the existing lease (on the basis that the plaintiff has validly exercised the relevant option).
The plaintiff submits that the principal factors which inform the exercise of the discretion in the present case are strongly in its favour, namely that: the plaintiff will likely suffer irreparable damage if the interim injunction is discharged; the countervailing prejudice to the defendant is said to be less serious; and it is submitted that the plaintiff's continuing occupation of the premises (subject to certain conditions set out in its submissions) will maintain the status quo pending final resolution of the respective parties' rights and obligations. Complaint is made that the defendant's approach to this application is an attempt to procure final relief in respect of the plaintiff's ongoing rights of occupation of the premises.
In the plaintiff's supplementary written supplementary submissions, it contended that: there was no non-disclosure (the plaintiff arguing that it could only disclose what it knew and understood); and that the suggestion that the plaintiff deliberately misled the Court has no foundation.
The plaintiff maintains that its case is encapsulated by the characterisation of Hodgson CJ in Eq, as his Honour then was, in Sky Shine Pty Ltd v Lenjade Pty Ltd (2001) NSW ConvR 55-974; [2001] NSWSC 56 (Sky Shine) at [27] namely that: The plaintiff is in effect seeking to reverse the effects of the forcible self-help indulged in by the defendant, so that the Court can determine the rights of the parties, rather than having that matter pre-empted by the forcible action of the landlord.
The plaintiff contends in this regard that the defendant's position in the present case is perverse. It says that the defendant consented to the 2016 and 2021 Works (both of which were approved by Council) (a matter which seems to me to be beside the point in relation to the subsequent events - the granting of approval to conduct works is quite a different matter to complacency as to the lack of an occupation certificate on completion of those works). The plaintiff says that the defendant appears to have been fully aware of the "impugned certification issues" since 2016 or 2017 (though it is not clear on what basis this is put), yet has "gone about collecting rent and deriving a further commercial benefit from the plaintiff's improvements made to the Premises" (again, the collection of rent is hardly relevant to the present issue and it is a moot point as to the improvements - noting that the defendant maintains that it wishes the property to be made good and the unlawful occupation issues resolved).
The plaintiff argues that the timing of the defendant's steps to terminate the lease calls into question the bona fides of its actions (noting that the issue of the breach notice followed only a matter of weeks after the service of the amended notice regarding the plaintiff's exercise of the option). (This is little more than speculation; and is beside the point in the sense that, if the occupation is unlawful, the defendant can hardly be criticised for wanting this to be rectified.)
Further, the plaintiff seems to attach significance to the fact that the defendant's actions have occurred in the context of the plaintiff's "successful application for relief" under the Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2021 (NSW), which it is said has provided for both a rent reduction and a moratorium precluding termination by the defendant for monetary default (yet the plaintiff itself has been dilatory in relation to the rent relief proposal and even apart from such relief was in default in payment of rent on any view).
Finally, it is said that the defendant "has been entirely complicit in any illegal activity" as the owner of the premises. That seems to me to be an extraordinary proposition in light of the chronology of events set out above. However, the plaintiff goes further and submits that "the importance of the total absence of evidence regarding the defendant's state of knowledge cannot be overstated". The relevant question for the purposes of the present application is what should have been known to his Honour by the plaintiff on its ex parte application.
The plaintiff submits that it is readily apparent that the defendant wants the plaintiff out of the premises and is doing whatever it can to achieve this (including by reference to the matters set out in the plaintiff's submissions) and the plaintiff says that the defendant's attitude to the present application "is demonstrative of a litigant using the Court processes as a vehicle to obtain a commercial windfall, namely the eviction of a tenant following a drastic improvement to the demised premises". The plaintiff maintains, in contrast, that its conduct bespeaks a constructive and cooperative approach to remedying the outstanding planning law issues. (I beg to differ having regard to the chronology above).
The plaintiff places weight on the decision in Sky Shine for the proposition that the continuation of the present injunction is not necessarily impermissible on the basis that it would amount to an endorsement of illegal conduct (pointing also to s 9.46 of the EPA Act). It is noted that in Sky Shine, an injunction was granted in circumstances where his Honour was prepared to proceeded on the basis that the tenant's occupation of the subject premises was illegal. There, the evidence was that the relevant Council was aware of the illegal use of the demised premises; and his Honour granted an interlocutory injunction but imposed conditions which facilitated the rectification of the legal breaches (referring to the statutory predecessor to s 9.46 and to the decisions in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 and ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67).
The plaintiff's first set of submissions then sets out the arguments on which it relies for the contention that there is a serious question to be tried as to: the claim for relief against forfeiture, the claim that the lease was invalidly terminated (including the submission that the breach notice was not a valid notice and hence no right of re-entry had accrued at the time of the forcible re-entry); the claim by the plaintiff for specific performance of the option agreement; and as to the issue of balance of convenience. (It is not necessary here to delve further into those submissions as the application for continuation of the injunction was overtaken by the decision on the discharge application.)
As to the supplementary submissions, the plaintiff's initial position (as adverted to above) was that there was no non-disclosure on the basis that the plaintiff could only disclose what it knew and understood; and that there was no foundation for the submission that there had been deliberate non-disclosure (those submissions focusing on the proposition that the defendant's submission was based on a misunderstanding as to the chronology of events).
It is submitted that the issue of disclosure should be approached with reference to the context in which the application came before the Court. Complaint is made that while there is a recognised duty of candour this obligation should be upheld "whilst recognising that an artificial dissection of the transcript of an urgent hearing … lends itself to an overcritical approach to the question of disclosure". It is said that due recognition ought to be given to legal complexities and possible inadvertence by parties and their representatives in the context of an urgent hearing.
The plaintiff emphasises the circumstances of "extreme urgency" in which the application was brought, noting that: the plaintiff had been locked out of its premises with no notice; the plaintiff required urgent access to conduct its business, or otherwise risk the spoiling of about $300,000 worth of fresh produce; and submitting that the plaintiff had collated the best information that it had available within a period of hours and presented that information to the Court. It is submitted that if there was material to which the Court should have been taken to, it was the fault of the plaintiff's counsel, not of the plaintiff itself; that the failure was inadvertence and that the plaintiff was not culpable in that regard.
As to the specific allegations relating to non disclosure, the plaintiff says the following.
First, that the evidence relied upon by the plaintiff at the hearing on 10 February 2022 made clear that no occupation certificate had been issued in respect to the 2016 Works or the 2021 Works. It is said that this was clearly understood and acknowledged by the Court.
Second, as to when the plaintiff learnt of the further certification required (Certificate No 1), the plaintiff argues that Mr Rawlings attended at the Premises after the conclusion of the hearing before Parker J (at which time he provided the advice as to the matter the subject of Certificate No 1) and hence this was not known to Mr Richerdson at the time of the hearing on 10 February 2022.
It is said that the explanation provided by Mr Richerdson on this issue is at odds with the serious contention that the plaintiff acted culpably.
Third, as to the various terminology used to describe the "fire safety certificate", the plaintiff emphasises the references in Mr Richerdson's affidavit to the "relevant" fire safety certificate.
It is submitted (and I would accept) that the use of the term "fire safety certificate" by both Counsel for the plaintiff and his Honour was as a result of the wording adopted in Mr Richerdson's affidavit. However, the plaintiff goes on to argue that what was represented to his Honour was that a final certificate was required to obtain an occupation certificate, that this was outstanding and that it would be obtained by the plaintiff.
As to the change to "fire exit certificate", the plaintiff says that it is to be inferred that his Honour reviewed the submitted orders and did not consider it necessary to reconvene the hearing (as had been foreshadowed) in relation thereto. (This begs the question as to what his Honour was told with respect to the difference between those two such certificates, which was in effect nothing.)
As to the 4.12pm email from Council, the plaintiff says that this did not alter the position as was conveyed to his Honour by way of Council's email of 3 February 2022. The plaintiff says that, if anything, the email improved the plaintiff's position as it provided further evidence of Council's state of knowledge and further established that Council did not take the view that the plaintiff had immediately to cease use of the premises.
Finally, it is said that, to the extent that the plaintiff mischaracterised the position, it is said that this was a product of inadvertence (on its part and by its Counsel).

Determination

It cannot be overstated that practitioners appearing on ex parte applications, as noted already, are subject to a particular duty of candour and frankness to the Court, to bring under the notice of the Court all facts material to the determination of the applicant's right to that injunction (Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; [1912] HCA 72 at 681-682). The duty is a demanding responsibility (Surefire Holdings Pty Ltd v Oxley Sportsdrome Pty Ltd [2001] QSC 85). Lack of awareness of the importance of those facts is no excuse (Garrard). Nor, indeed, is lack of awareness of the existence of those facts, so long as those additional facts would have been known had the applicant made proper enquiries (Brink's-Mat at 1356). The paramountcy of the duty of candour is clear from the foregoing authorities. Accordingly, applicants on ex parte applications are encouraged to "err on the side of excessive disclosure" (see Columbia Picture Industries Inc v Robinson [1987] Ch 38 at 77 per Scott J).
In the present case, his Honour squarely put the plaintiff on notice of his Honour's concern as to various issues, including issues of illegality of use or occupation of the premises, in particular in the context of the fire safety issue. His Honour was being assured that there was no practical issue because Council was not taking steps to require the plaintiff to vacate and that there was only an administrative exercise to be carried out. It seems to me that there was clearly relevant information not disclosed to his Honour and, although the plaintiff's written submissions in emboldened text disavowed the suggestion that there had been any non-disclosure of facts, in oral submissions it was conceded that particular facts had not been drawn to his Honour's attention (see the transcript of the proceeding on 28 February 2022 at T 79.43-45).
The Court has a discretion to set aside an order made ex parte when the applicant has failed to make sufficient or candid disclosure (Lazard Brothers & Co v Midland Bank Ltd [1933] AC 289 at 307 per Lord Wright). In Spry, as to the discretion to set aside an order in circumstances of material non-disclosure it is said (at 498): If a non-disclosure is not innocent, but the plaintiff has acted culpably, the court is particularly reluctant to grant an injunction or continue an existing injunction, but this is also a discretionary consideration, of more or less weight according to all the circumstances.
I consider that, for the reasons that I have set out, the non-disclosure warrants the discharge of the injunction that had been granted. I cannot condone a failure to comply with the duty of full disclosure and candour on ex parte applications.
The only issue that now remains for determination, in light of the orders that I made on the last occasion, is the issue as to whether, as the defendant contends, the conduct of the plaintiff was culpable, in the sense of culpable non-disclosure.
Culpability is a core consideration in the exercise of the Court's discretion to set aside the order (see for example Palaris Mining Pty Ltd v Short [2012] QSC 224 at [39] per Applegarth J; and Berg Engineering Pty Ltd v Tivity Solutions Pty Ltd [2019] QSC 68 at [88] per Jackson J).
Culpability has been considered to include conduct that is deliberately misleading. In Savcor, for example, the Court defined culpability at [33]: … The approach is different if the plaintiff has acted culpably in the sense that the omission to disclose relevant matters was done deliberately to mislead the court.
The passage from Spry, quoted earlier, tends to suggest that culpability (juxtaposed with innocence) exists on a spectrum. Indeed, an earlier passage in Savcor (at [29]) refers to the high degree of culpability where a party deliberately sets out to mislead the court, which tends to suggest that (a lesser degree of) culpability may nonetheless be present where a party has acted carelessly, recklessly, or adopted a cavalier attitude with respect to the party's obligations of disclosure.
I consider that culpability in this sense includes not only the deliberate or intentional misleading of the Court, but also the adoption of a careless, reckless or cavalier attitude to the paramount duty of full and frank disclosure by the legal professionals bringing the ex parte application. This approach appears to me to be supported by the decision of Hughes J in Vinod Chopra Films Private Ltd v John Doe [2010] FC 387, where the Federal Court of Canada set aside an Anton Piller order on the basis of the plaintiff's culpable conduct, being the leading of "careless", "inadequate" and "misleading" evidence. Hughes J there cited the passage from Celanese Canada Inc v Murray Demolition Corp [2006] 2 SCR 189; [2006] SCC 36 in which Binnie J held that "[t]he motions judge necessarily reposes faith in the candour and complete disclosure of the affiants, and as much or more so on the professional responsibility of the lawyers participating in carrying out its terms". The carelessness and inadequacy of the evidence, in this context, appears to refer to careless, reckless, or cavalier non-disclosure on the part of the applicants (and their legal representatives) as opposed to a deliberate non-disclosure.
Culpability is of further relevance in determining whether the applicant should be permitted to make an application de novo. On this point, Spry says the following (at 498): Where the general rule is applied, and the interlocutory injunction in question is either refused or dissolved, as the case may be, the plaintiff nonetheless does not become anathema for all purposes. He may, if he wishes, make an application de novo; but on any further application it may be appropriate that the proceedings should take place on notice, rather than ex parte … In such cases, the degree of culpability of the plaintiff and also prospective hardship through the grant or refusal of relief are considerations of particular importance, as well as any advantage that the plaintiff may have improperly obtained by reasons of his non-disclosure.
I would conclude, on the issue of culpability, that the plaintiff's conduct in the present case, in failing to make full and frank disclosure, was culpable; insofar as Parker J made repeated and pointed enquiries of the plaintiff, through its counsel, reminding the plaintiff of its obligations concerning disclosure in circumstances where the plaintiff was well and truly on notice of the concerns of the Court, in relation to illegality of occupation and matters such as the rental arrears and validity of the exercise of the option. I accept that Mr Richerdson, as a lay person, would not be expected to understand fully the judicial process and that Mr Richerdson would rely on his legal representatives for advice, but Mr Richerdson was being told by the duty judge (very clearly) of the judge's concerns and of the possible consequences; and was seemingly better placed than most, in the virtual duty courtroom, to understand the ramifications of particular building issues or consent (even if not as cognisant of issues in relation to Occupation Certificates and the like, as he is now). Certainly his evidence in cross-examination (see T 39.15-22) suggested that as at 10 February 2022, or very shortly thereafter, he was aware of the distinction between a fire safety certificate and a fire exit certificate, to which his Honour was not taken.
In cross-examination Mr Richerdson made clear that he had drawn to his solicitor's attention the difference between the fire safety certificate (or fire safety statement, as he corrected this in the witness box) and a fire exit certificate, yet his Honour would have been forgiven for thinking that the only issue was as to whether there was a fire exit certificate available. The understanding of Mr Richerdson (and ultimately later of his solicitor) was that, even with the fire exit certificate, the property still remained without an occupation certificate and required a Building Information Certificate and a fresh Development Application (see, for example, T 57.44-50).
The thrust of the approach before his Honour seemed to be that this was a matter of great urgency because of what was said to have been an unexpected, or surprising, lock-out. Instructions were continually being sought as to matters in respect of which I accept that Counsel did not have full instructions. What his Honour was constantly being told was that further information could be provided, if necessary, on the Monday and that the urgency was in order to enable possession over the weekend. It seems to have been assumed that the information that it was said would or could be provided was (or would be) available but, by the time the matter came to the next duty judge on the Monday, no issues were raised in relation to the matters of which by then the plaintiff had become aware.
Insofar as the submission was that the plaintiff was not required to disclose something that amounted to a substantial improvement in the plaintiff's position (even assuming that the conversation on 11 February did so), I am not satisfied that this obviated the need for disclosure to his Honour (or the next duty judge hearing the matter) in relation to what had become apparent was a changed set of circumstances in relation to the occupation certificate; and I note the submissions that have been made as to the disadvantages to which the defendant is subject as a result of the Notice of Intention having been issued by Council and its exposure to liability in that regard.
For those reasons, on 28 February 2022, I discharged the injunction and I ordered indemnity costs of the proceedings to date and of the Notice of Motion.

Orders

For the above reasons, on 28 February 2022 I ordered as follows: 1. Order pursuant to rr 36.15 and 36.16(2)(b) of the UCPR, and the Court's inherent jurisdiction, that Order 4 made on 10 February 2022 be set aside. 2. Order that the plaintiff pay the defendant's costs of this notice of motion and the proceedings to date on an indemnity basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 March 2022

Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2021(NSW)

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