North East Solution Pty Ltd v Masters Home Improvement Australia Pty Ltd [2016] VSC 1

For the reasons which follow, each of these contentions should, in my view, be rejected.

Would agreement have been reached in relation to the Landlord's Works Costs?

264 Woolworths contend that a "further Sellars discount would need to be applied to reflect the fact that it is highly unlikely that an agreement in relation to the [Landlord's Works Costs] would in any event have been reached."[795] Woolworths say that there was no evidence to suggest that they would ever have "acceded to Mr Blake's insistent request that the payment be made up front."[796] The parties were unlikely, it is said, to reach agreement in relation to this important matter. Indeed, it is said that the evidence in the proceeding, even now, shows that the parties still cannot agree on the amount of the tenant's contribution towards the Landlord's Works Costs. This contention is, however, in my view, one of over-simplification and over-generalisation, to say the least. Rather, the evidence of Mr McDonald was that Rider Hunt had worked with Vaughan Constructions in relation to each Masters store Vaughan Constructions had built. With the exception of the Strathdale site, Rider Hunt's negotiations with Vaughan Constructions on behalf of Woolworths had always been satisfactorily concluded. Moreover, Mr McDonald said that, in his opinion Rider Hunt and Vaughan Constructions had a good working relationship and that, based on their track record, he considered it was likely that they would have been able to reach agreement. Thus, the only real question is what Landlord's Works Costs and contribution amount would have been agreed?