For Respondents 1 & 2: Mr Cosgrave instructed by Arnold Bloch Leibler

For Joined Party: Mr Evans instructed by Deacons Graham and James

1. The Chadstone Shopping Centre has a most interesting history. Originally, what is now the Centre formed part of a convent, reformatory and industrial school. In the late 1950s part of that property was purchased by the then Myer Emporium Group and Melbourne's first regional shopping centre, mall or super-mall, call it what you will, was established. Since that time, there have been changes of ownership and a continuing process of expansion and redevelopment.

2. This proceeding arises out of what has been described as Stage 20. This apparently entails the now completed demolition of the old Myer's store which was the original part of the Centre and its replacement with other retailing outlets, including David Jones and smaller retailers. The Myer's store is now located elsewhere in the Centre.

3. In about 1991 a company called Opstyle Pty Ltd commenced carrying on business at Shop 87 of the Chadstone Shopping Centre. Opstyle carried on business as retailers of nature, environmental and scientific related books, gifts, toys and general merchandise. It conducted its business under the name Nature's World. Opstyle apparently did not prosper and in due course the present applicant, Nature's World (Chadstone) Pty Ltd purchased the business of Opstyle from administrators appointed pursuant to the terms of the Corporations Law. That company took an assignment of Opstyle's lease and ultimately received a new lease of the premises itself.

4. The landlords of the Centre are now Perpetual Trustees Ltd and Bridgehead Pty Ltd. No evidence before me has gone into the details of the basis on which these companies are the owners of the Centre. It is common ground however, that the beneficial ownership resides with what might be described as the Gandel Group of Companies.

5. According to Mr Newton, who is one might say, the Principal of Nature's World, his company became interested in moving to part of what I have described as Stage 20 of the on-going redevelopment of the Centre. This stage was itself divided into a number of stages and the interest which Nature's World had was in Stage 1 of Stage 20.

6. Initially Mr Newton says that in or about April 1998 a co-director Mr Paton was approached by a representative of the landlord's management, a Ms Rose Davies. The purpose of this approach was to invite Nature's World to move its tenancy to Stage 1 of the Stage 20 redevelopment. It seems that this was of some interest to Nature's World because changes within the layout of the Centre rendered the place where it then operated a less satisfactory location than it had previously been. According to Mr Newton, in the course of the meeting which he had with Ms Davies:

"I told Davies that whether or not the applicant was interested depended on the rent and the future location of the Australian Geographic at Chadstone. [I interpolate that at that time Australian Geographic Pty Ltd was lessee at Shop 407 of the Chadstone Shopping Centre and according to Mr Newton was his company's principal competitor.]"

Returning to Mr Newton's affidavit, sworn the 22nd of October this year at paragraph 12., he continued:

"I asked her whether or not Australian Geographic would be relocating to the new shopping precinct. Davies told me no. She told me and Paton that she had offered a store on the lower ground floor to a representative of Australian Geographic who had advised her that it was not interested because Australian Geographic had plans on foot for an expansion in Sydney. Davies then added that only one or other of the applicant and Australian Geographic would be given the opportunity to relocate to a larger premise at Chadstone. We also told Davies that a larger store would enable us to do greater business over the peak trading period and in particular at Christmas time."

7. Mr Newton was apparently led to believe that the new precinct or Stage 20 redevelopment would be open in November 1998 and would be a lifestyle precinct in its upper level. The second stage, Stage 2, would be a homewares precinct. Based on these assurances says Mr Newton, his company went into possession of Shop B106 in about October 1998, completed fit-out works and opened for business on the 19th of November 1998.

8. Nevertheless, Mr Newton says he remained uneasy as to the intentions of Australian Geographic. This led him to write a letter to the management of Australian Geographic asserting that a representation had been made that Australian Geographic would not move to the same area as his company and stating that, if necessary, an injunction would be obtained to prevent this occurring. A Mr Gregory replied on behalf of Australian Geographic in the following terms:

Good morning! Firstly my apologies for not getting back to you earlier after your recent telephone call but I have been travelling extensively.

Thanks for your courtesy note dated the 19 May 1999. I have had discussions with the Gandel Group regarding Chadstone but nothing has been resolved at this stage. I will keep you posted."

9. Nevertheless, Mr Newton continued to be troubled. He says that he had a further conversation with Ms Davies in the latter part of June or very early July. In paragraph 22 of his affidavit he said:

"I asked her what were the respondents [that is the landlords] doing with Australian Geographic, were Australian Geographic relocating? Davies said they had not done a deal with Australian Geographic but that they had had a talk to them. I said that this would end up in a fight. I said we have an understanding. She said "even if I did say that Australian Geographic weren't going to relocate our plans have changed and we can't predict the future."

10. Mr Newton's unease and concern were further increased when in mid-August he saw a sign in the construction area for the new shopping precinct at Shops B135 and 136 stating Australian Geographic. He says that it is common practice for such a sign to be placed in the construction phase indicating the tenant that would move in in due course. On the 6th of October 1999 it seems that the applicant's solicitor Mr Ray Barrett had a meeting with the representatives of the landlords. According to Mr Newton:

"It was confirmed for the first time that the respondent's have granted a lease to Australian Geographic in respect of I believe Shops B135 and B136 in the new shopping precinct."

11. Mr Newton says that the grant of this tenancy if carried into effect has the potential to cut his company `s retail turnover by as much as 20%. The applicant company says that in the circumstances the landlords have engaged in misleading and deceptive conduct by making representations as to future conduct for which there was no reasonable basis.

12. Through the applicant's Counsel, Mr Cameron, it relies upon Section 51A of the Trade Practices Act 1974 of the Commonwealth of Australia and Section 10A of the Fair Trading Act 1985 of the State of Victoria. Those sections respectively provide in virtually identical terms that it amounts to misleading and deceptive conduct to make representations as to the future without a reasonable basis and further, the burden lies upon the representer to establish that reasonable grounds existed in the precise form of injunctive relief sought was reformulated. In this hearing, the applicant seeks injunctive relief upon an interim or interlocutory basis. The document dated the 1st of November 1999 formulates the interlocutory injunction which it seeks in the following terms.

"An interlocutory injunction restraining the respondents [that is the landlords] from:

(a) Granting a lease to Australian Geographic Holdings Pty Ltd (Australian Geographic) for Shops B135 and 136 Chadstone Shopping Centre 1341 Dandenong Road Chadstone the premises and/or

(b) Delivering up possession of the premises to Australian Geographic and/or

(c) Permitting Australian Geographic to conduct any business from the premises for the purposes of retail sale of nature, environmental, adventure and discovery products."

13. It is common ground that some form of offer or invitation with respect to the tenancy or proposed tenancy complained of by the applicant was despatched from Australian Geographic to the landlords dated the 14th of July. It is unnecessary for me to follow the somewhat uncertain course which this offer or invitation and its consequences have since followed. It is common ground that the deal has been done and that at the very least there is some form of enforceable agreement to lease in existence between the landlords and Australian Geographic Holdings Pty Ltd.

14. In those circumstances a question arises as to whether there would be any purpose or point in granting injunctive relief to restrain an event which has already occurred. Ultimately I did not understand Mr Cameron to press for an injunction in the form of the first of the various formulations which he placed before me.

15. Secondly, the evidence was and it was uncontradicted, that possession of the new premises has been delivered to Australian Geographic at least for the purposes of fit-out. Again, if that is correct, an injunction in the form of the second formulation would likewise be inappropriate.

16. Ultimately as I understood Mr Cameron's submission, he said that an injunction should go in accordance with the third option which he put, namely one prohibiting the landlords from permitting Australian Geographic to conduct any business from the premises for the purpose of retail sale of nature, environmental, adventure and discovery products.

17. It was common ground that in a general sense this Tribunal has jurisdiction to grant injunctions of the sort which the applicant now asks for. Such jurisdiction is to be found in the Section 38(a) of the Retail Tenancies Reform Act 1998 and if that were not regarded as sufficient, Section 123 of the Victorian Civil and Administrative Tribunal Act 1998. Once again I did not understand it to be beyond question that for the purposes of the Victorian Civil and Administrative Tribunal Act the word "interim" used in Section 123 is to be regarded as the expression interlocutory as used in the general equitable principles as to injunctions. Further, it was common ground that for the purposes of considering whether such an interlocutory injunction would be granted, the test applied was to consider, first, whether the applicant had shown a serious question to be tried as to the relief sought on an interlocutory basis and secondly, that if the answer to that was yes, to consider whether the balance of convenience favoured the grant of the interlocutory injunction in the circumstances. What seemed to me to be an initial problem with the interlocutory relief sought was this - the basis upon which it is sought is that this applicant has been the victim, so it said, of misleading and deceptive conduct. I should indicate that whilst I have summarised what Mr Newton said on the subject, Ms Davies and other deponents on behalf of the landlord have sought to put a different complexion on matters.

18. It is fair to say that the substance of their affidavits is that Ms Davies only indicated in a general sense that at that stage Australian Geographic had not committed to a tenancy and she did not purport to promise, warrant or represent what might happen in the future. Obviously it is not appropriate at this interlocutory stage to seek to determine questions of credibility and accuracy of recollection between those deponents.

19. What troubled me is this. When relief is being granted by way of damages for misleading and deceptive conduct, it is clear subject only to a recent decision of the High Court of Australia in Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 73 ALJR 12 that the proper fixation of quantum of damage is to be by reference to the tort measure, that is, with a view to putting the victim of the misleading and deceptive conduct in the same position as he would have been had that conduct not occurred; not the contract measure which puts the victim of the misleading conduct in the same position as if the misleading and deceptive conduct were true. So much appears from the decision of the High Court of Australia in Gates v City Mutual Life Assurance Society (1986) 160 CLR 1.

20. If relief were granted by way of an injunction interlocutory or final, in the terms now sought, would this applicant not be gaining in the form of an injunction. In effect the contract measure of damages rather than the tort measure? In answer to this objection Mr Cameron referred me to a number of authorities of the Federal Court of Australia in proceedings under the Trade Practices Act. He referred to Brown v Jam Factory [1981] FCA 35; (1981) 53 FLR 340; Higgins v Centrepoint Freeholds [1981] FCA 15; (1981) 36 ALR 23; Hayden v Jackson (1988) ATPR 40-845. In each of these instances the Federal Court granted injunctions against landlords restraining them from evicting tenants who according to the findings of the Court either final or interlocutory, either had been or arguably had been victims of damage caused by misleading and deceptive conduct. The objection based upon the misleading and deceptive conduct in substance was to be regarded as impeaching the demand for the rent and therefore perhaps excusing the tenants from non-payment of the contractual rent. These authorities do not seem to me directly to meet the point which I raised. I will nevertheless for the purposes of this decision assumes that the form of interlocutory relief sought is not objectionable upon the ground which I have just described.

21. It is appropriate therefore for me to return to the third formulation of the injunctive relief sought. I asked Mr Cameron what step could the landlords take or what act could they abstain from taking in the circumstances which I have already described which would amount to a performance of the injunctive obligation which this formulation placed upon them? With all respect to Mr Cameron I do not believe that he gave me a direct or satisfactory response. He said that in a general sense the landlord was obliged, if such an injunction were granted, to abstain from permitting Australian Geographic Holdings from undertaking the actions referred to in the formulation of the injunction.

22. Mr Cosgrave in reply said that there was no legal means whereby his client having entered into a tenancy obligation to Australian Geographic could achieve that result. If it is correct that possession has already been delivered it could only be by some trespassory act on the part of the landlords that Australian Geographic Holdings could be restrained from doing the things which this applicant asks them to be restrained from doing. In that regard one has to consider whether in the circumstances it is appropriate for injunctive relief to be granted which would appear to require action either by way of breach of contract or trespass. At page 408 of Dr Spry's works Equitable Remedies Fifth Edition, and following on to page 409 the learned author states:

"Furthermore ordinarily a court of equity does not require the commission of acts which would otherwise constitute a breach of trust or which would give rise to a breach of contract with a third person or which are against public policy."

23. Dr Spry was there speaking of the issue of grant of injunctions. He does continue however to say that this is not an absolute rule but ultimately a matter of discretion.

24. I might refer also to a decision of the English Court of Appeal in the matter of Warmington v Miller [ 1973] QB 877. A tenant entered into an oral agreement to grant a sub-lease. At first instance the Court granted the decree of specific performance. The head lease under which this tenant operated prohibited the grant of such a sub-lease without the permission of the landlord. Such permission had not been forthcoming. The Court of Appeal reversed the decision. According to the head note, the Court would not in exercise of its discretionary power grant specific performance where to do so would result in the defendant breaking its contract with a third party. Since the execution of the sub-lease by the landlord would result in a breach of the covenant contained in this head lease the Court would not grant specific performance to grant another lease.

25. That case is significantly different from the one before me. By the very nature of things the covenant in the head lease was entered into before the oral agreement to grant the sub-lease. For that reason alone it might be thought that the landlord whose lease would be breached had a far greater entitlement to complain being as it were first in time than would Australian Geographic Holdings Pty Ltd, which became involved in this precinct after the present applicant and further was made aware of this applicant's objection to its negotiations and proposal to undertake a leasing arrangement. In that regard I think it is appropriate to refer again to the fact that in stating the principle to which I have just referred, Dr Spry said that it did not constitute a blanket prohibition upon the grant of specific equitable relief, rather it was a discretionary matter to be considered. In my view it is a very proper matter to consider.

26. I return therefore to the issue as to whether in the circumstances it has been demonstrated that there is a serious question to be determined. Certainly Mr Newton has deposed to facts which would appear to give rise to some form of relief against the landlords if what he says is true. This account of events is significantly contradicted but it is not appropriate at this stage to seek to determine what the truth is, merely whether there is some serious question to be tried.

27. What I have said however about the form of the injunction sought raises doubts in my own mind as to whether there is a serious issue to be tried as to whether relief in this form could be granted ultimately as final relief. I say that for the reasons which I have already given. I will however despite the misgivings which I have expressed assume for the purposes of this decision that there is a serious question to be tried as to whether this relief would be forthcoming ultimately as final relief.

28. That then brings me to the issue of balance of convenience. I have already referred to the evidence of Mr Newton as to his belief that his company may lose up to 20% of an $800,000 turnover in the company's present tenancy. That clearly is a significant factor to be considered. Against that there is evidence filed on behalf of Australian Geographic Holdings Pty Ltd which I ordered to be joined as a party to these proceedings pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 to the effect that it has incurred perhaps 25% of a $267,000 fit-out expense. Further, the tenancy in dispute here is a fairly large one and the landlords have said that there may be serious difficulty in obtaining an alternative tenant. An alternative tenant would not be available on any view before the proposed opening of this stage of the redevelopment. This according to the landlord would expose it to a very substantial loss in rental and further providing a gap tooth appearance to the redeveloped precinct and would set back the general promotion of that portion of the Centre.

29. Moreover Mr Cosgrave draws attention to the standing of the applicant company as a $2 the whole of whose assets are subject to a fixed and floating charge in favour of its bank, National Australia Bank Ltd.

30. Mr Cameron said in reply that if this issue, namely the ability of the applicant to stand behind any undertaking as to damages which it might give if the price of getting this injunctive relief were to be the killer point the difference between the injunction being granted and not granted, I should so indicate that he would take the opportunity of obtaining further instructions in an attempt to offer some more substantial security for the undertaking.

31. Both Mr Cosgrave and Mr Evans have stressed as amongst the considerations relative to the balance of convenience that in their submission the applicant has been guilty of significant delay. They drew attention to the fact that the applicant as long ago as May of this year was seriously uneasy as to events on this front and in correspondence with Australian Geographic itself made reference to the possibility of the applicant seeking an injunction. By way of response Mr Cameron says that the letter from Mr Gregory which I have quoted in full promised to "keep Mr Newton posted". To that extent, he, Mr Newton, was given a false sense of security. On the other hand it must be said that events in June and July, when there were discussions with Ms Davies where she specifically refused to offer any assurances to as what might or might not happen with Australian Geographic and Mr Newton's seeing the sign in the building works area indicating as he thought that Australian Geographic was about to take up a tenancy in the disputed shop area show that there was no ground for the applicant to be lulled into any false sense of security. In my view the submissions made in that regard by Mr Cosgrave and Mr Evans are convincing and further whilst the promise by Mr Gregory to keep this applicant posted was to some degree lulling it into a false sense of security, Mr Gregory could have complied literally and conscientiously with that obligation by informing the applicant company of a done deal immediately after it was done. Even if he had taken that step the present applicant would have faced many of the same difficulties as it now faces and which I have already described, that is, seeking to restrain and obstruct a lease which has already been granted.

32. If Mr Newton was lulled into a false sense of security in May by the correspondence from Mr Gregory he could scarcely have been reassured by his conversation with Ms Davies which is deposed to in paragraph 22 of his affidavit.

33. Mr Cameron referred me to a number of authorities on the issue of delay, notably a decision of Hill J, of the Federal Court of Australia MIPS. Computer Systems Pty Ltd v MIPS Computer Resources Pty Ltd [1990] FCA 348; (1990) ATPR 41-050 Gollel Holdings v Kenneth Maurer (1987) ATPR 40-790 and BM Auto Sales Pty Ltd v Budget Rent a Car System Pty Ltd (1976) 12 ALR 363, 372. All of those authorities are examples of substantial delay, in some cases 12 months and in another case 12 years where applicants or plaintiffs have nevertheless been held entitled to interlocutory relief despite the very long delay in bringing their proceedings. Those authorities are all cases in which defendants or respondents had been or arguably had been making use of trade names in a misleading and deceptive fashion. The judges in one way or another all said that it was unrealistic for a defendant finding himself in such a position to assume that the mere fact that the holder of an entitlement to goodwill or copyright did not take immediate action could not be the basis for an inference that such person consented to or approved what the defendant was doing. Here whilst the alleged delay is a very minor one by comparison with the delays referred to in the authorities relied upon by Mr Cameron, the context is very different.

34. The urgency of taking action in circumstances where once a lease is granted there are serious conceptual and legal difficulties with restraining that lease are obvious. Further the grant of a retail tenancies lease has an obvious concomitant of fit-out expenditure and to the knowledge of this applicant is in any event part of a major redevelopment and promotion scheme for the Centre. Action was called for immediately and promptly. In late June or early July when Ms Davies declined to offer any sort of reassurances and in effect said that her employers or principals were going to proceed as they may be advised, it was incumbent in my view upon this applicant to move swiftly even if it had not moved before. Mr Evans observed that had action been taken then, it would have been possible for his client to avoid incurring a lot of the expenditure which is now put in jeopardy and called into question. I might also observe that even although no Counsel made reference to it, had action been taken in July it may have been possible for this Tribunal to have this matter proceed to a final determination before now, avoiding entirely the difficult issues of balance of convenience which arises when interlocutory relief is sought in circumstances where the case for the applicant is for reasons I have already given, less than overwhelming and less than obviously unanswerable. In my view these matters are very substantial balance of convenience issues which point against the grant of interlocutory .

35. I should also note that both Mr Cosgrave and Mr Evans have drawn attention to a letter dated the 15th of June 1999 which is the first exhibit to Mr Newton's principal affidavit. That letter was written in the context of a discussion as to rent abatement and is addressed to Ms Davies of Gandel Asset Management. Mr Newton refers to some three considerations which to his mind made the offer which Ms Davies had evidently made to him of a $30,000 rent abatement as being a pittance in the context of those concerns. The three concerns mentioned are customer traffic substantially down on landlord's expectations; inadequacies of disclosure document; detrimental effect of tenants and lease alterations. This last heading is a reference to the very issue which is before the Tribunal today and there is nothing in the letter to suggest that this is not being dealt with by the terms of the letter to the very same extent as every other issue. The proposal which Mr Newton put to the landlords was this:

"1. The landlord reimburse Nature's World (Chadstone) 50% of the first year's occupancy cost;

2. The landlord provide space for a Nature's World outpost kiosk on the upper level mall to trade for four weeks prior to Christmas each year for the term of the lease at no cost."

"The proposal we believe is fair and that addresses all of our concerns both immediate and longer term."

36. For reasons I have already given there is no ground for thinking as a matter of objective construction of the document that all does not cover the issue that is before me today.

37. Mr Evans referred me to a decision of Vice Chancellor Sir William Page Wood as he then was in the matter of Senior v Pawson (1866) 3 Eq Cs 330, 336 as indicating that the existence of a compromise proposal such as this one indicating a willingness to accept a monetary sum was a significant factor in balancing the issues of convenience in determining whether specific equitable relief should be granted. I should say that I do not doubt that if the case made by these applicants is successful as to fact and is able to avoid the legal concerns which I have raised, that in considering whether specific equitable relief should be granted, there is no doubt that damages would not be an adequate remedy. That is that there would be jurisdiction to grant a final injunction if all else was established.

38. In considering the balance of convenience however I think it proper to consider what would be the result if this applicant were left solely with its right to damages and the ability to seek a permanent injunction at the ultimate hearing. The only basis on which Mr Cameron could say that damages would be an inadequate remedy is that there would be difficulty in quantification.

39. Finally I should note that the Court of Appeal in the matter of Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318 said that it is proper in weighing the balance of convenience to consider the strength of the serious question to be tried which is to be the basis for the grant of the interlocutory relief. I have accepted that there is a serious question to be tried but I regard the case being put by the applicants for reasons that I have already given as being less than overwhelming and not manifestly unanswerable. That to my mind is also an issue for the balance of convenience pointing away from the grant of an injunction.

40. In summary the factors which I have mentioned including the standing of the applicant to meet the undertaking as to damages all point against the grant of an injunction as a matter of the balance of convenience. I should say that whilst the financial standing of the applicant is a significant factor, it is not so significant that were this concern removed, I would be minded to come to any different conclusion. In the circumstances I think it is proper for this applicant to be left to his remedy of damages and not be granted any interlocutory relief of the sort which Mr Cameron has asked for.

41. I have just given my reasons for refusing to grant the interlocutory injunctive relief by the present applicant. Consequent upon that, both Mr Cosgrave on behalf of the respondent landlord and Mr Evans on behalf of the joined party Australian Geographic Holdings Pty Ltd, have sought orders that the applicant represented by Mr Cameron should pay their costs. They say in substance that they have been brought here unnecessarily and the rejection of the relief which has been sought demonstrates that they should never have been.

42. Mr Evans says that there are grounds for perhaps adopting an approach to costs more akin to that in court given that this is to some degree an unusual proceeding, being one for interlocutory relief not a simple finding determination.

43. Mr Cosgrave says that this application was vexatious because a fortnight before it had commenced a meeting attended by the applicant's solicitor made the situation crystal clear and yet the applicant delayed for a further 14 days after the situation was made crystal clear to its solicitor.

44. By way of response Mr Cameron on behalf of the applicant referred me to Section 109 of the Victorian Civil and Administrative Tribunal Act. He relies upon the presumption set out in sub-section (1) of that Section that costs lie where they fall. He notes that there has been some inconsistency of opinion in this List as to how in retail tenancy matters Section 109 should be applied. Section 109 is very lengthy, it is already past the usual hour for luncheon adjournment and I will not further prolong these reasons by quoting it in full.

45. When Mr Golvan QC addressed a Leo Cussen Institute seminar upon the Retail Tenancies Reform Act 1998 and the new Tribunal jurisdiction in these matters, he said that in his opinion Section 109 granted the Tribunal absolute discretion over costs. I respectfully adopt what Mr Golvan said in that regard.

46. In so far as I have in the past said that in general terms proceedings in this List, when analysed as to their nature and the nature of these proceedings is a matter which the Tribunal has specifically authorised and required to consider in making costs determination these proceedings are to be found to be by way of commercial litigation. This would suggest that the approach in the courts of costs following the event has much to commend it and should generally be applied. There is nevertheless I think a certain remaining bias against costs being ordered and I think that even accepting to the full everything that I said in the infamous decision of Malthall and Illiopoulous v Bevendale Pty Ltd (No. 2) (1998) V ConvR 58-528 perhaps a rather more merciful code on costs could be applied here.

47. I was not referred by any Counsel to authorities in court as to what the usual practice there is in making awards of costs in applications for interlocutory injunctions. According to my understanding and I accept that it may be a defective one, the usual practice in court is that where a plaintiff or applicant seeks an interlocutory injunction and succeeds, the costs are reserved. Where such an applicant or plaintiff fails and fails on the basis that he, she or it has not demonstrated that there is a serious question to be tried, the unsuccessful applicant or plaintiff is ordered to pay the costs. As I understand it however this iron rule of costs following the event is not universally applied where the failure to obtain interlocutory relief is based not upon lack of demonstration of a serious question to be tried but rather based upon the balance of convenience. I expressed misgivings as to the strength of the serious question to be tried here but did proceed upon the basis that there was one but denied the interlocutory relief based upon the balance of convenience. That being the case even in court there would be no clear and indisputable argument that costs should follow the event. I think there is ground for a greater reluctance to permit this to occur in the Tribunal. In my view this is a difficult and complex issue and it is perhaps another example of how most difficult conceptual issues tend to blow up in interlocutory proceedings. It will to my mind be far clearer where ultimate merit lies and where the burden of costs if any should be shifted when the entire merits of this matter are determined, accordingly I propose to reserve the costs of today's application, leaving them to be determined as part of the ultimate wash-up of the proceeding.