OXS Pty Ltd v Sydney Harbour Foreshore Authority and Minister for Planning and Environment

Judgment 1On 15 - 18 and 22 July 2014, I heard proceedings in which the Plaintiff, OXS Pty Ltd ("OXS"), brought various claims against the First Defendant, Sydney Harbour Foreshore Authority ("SHFA"), and the Second Defendant, the Minister for Planning and Environment. I delivered judgment on 26 August 2014 ([2014] NSWSC 1174) and ordered that OXS's claim against the Minister for Planning and Environment should be dismissed and that OXS should pay the Minister's costs of the proceedings as agreed or as assessed. I held that a large part of OXS's claim against SHFA failed. However, OXS succeeded in a claim that two representations made by SHFA (namely, the Ministerial Decision Representation and the Further Ministerial Decision Representation, as defined in the judgment) were misleading or deceptive, which would lead to recovery of damages in respect of wasted expenditures to a maximum of approximately $14,000. I indicated that I would hear the parties as to that claim and as to costs, as between OXS and SHFA, following the delivery of judgment. 2The matter was relisted on 9 September 2014 to allow the parties an opportunity to address those matters. On that date, the parties indicated that certain orders could be made by consent to give effect to my judgment, as follows: "All claims for relief within the Statement of Claim are dismissed except for the relief claimed in paragraphs 21, 22 , 23 and 25 and damages under paragraphs 11 and 15 (but only under s 62D of the Retail Leases Act 1994 (NSW)) in a sum less than $14,038." 3The matters that would remain for determination after that order was made are OXS's claim for interest under s 100 of the Civil Procedure Act 2005 (NSW), its claim for costs on an indemnity basis or alternatively costs, its claim for such further or other order as the Court thinks fit and its claims for damages under paragraphs 11 and 15 of the Statement of Claim, which respectively relate to claims for damages under ss 236 and 237 of the Australian Consumer Law and under s 62D of the Retail Leases Act. An order in this form, which would dispose of some aspects of the claim while reserving the issues that remain to be determined, is apparently sought because SHFA had previously given certain undertakings which operated until the determination of the proceedings, or aspects of them. There seems to be no reason in principle why the Court could not have made an order dismissing particular claims, enumerating them individually, while reserving the remaining matters for determination, and the substance of the order sought has that effect although it does so by identifying the matters that remain by exception to the matters that are dismissed. I will therefore make orders in this form, subject to resolving several other aspects of the orders that are in dispute between the parties. 4The first issue that remains in dispute is that OXS also seeks declarations in the terms of paragraphs 8, 9 and 13 of the relief sought in the Statement of Claim as follows: "8. A declaration that [SHFA] carries on business in New South Wales in leasing or licensing land pursuant to the Sydney Harbour Foreshore Authority Act 1988 (NSW). 9. A declaration that [SHFA], in trade or commerce, engaged in misleading and deceptive conduct or conduct likely to mislead or deceive, in contravention of s 18 of the Australian Consumer Law. 13. A declaration that [SHFA] engaged in conduct, in connection with a Retail Shop Lease, that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 62D of the Retail Leases Act 1994 (NSW)." OXS submits that these declarations appropriately give effect to the Court's findings that SHFA had engaged in misleading or deceptive conduct in respect of the Ministerial Decision Representation and the Further Ministerial Decision Representation (as defined in the judgment). OSX submits that, absent such declarations, there would be difficulty in proceeding to a determination of OXS's damages in respect of that matter. 5SHFA contends that a declaration should not be made in the form of paragraph 8 of the relief sought by the Statement of Claim, in respect of whether SHFA conducts business in New South Wales in the relevant respect. SHFA points out that, first, OXS had not pleaded that SHFA was bound by the Australian Consumer Law, although SHFA had not taken that point for the purposes of the particular case and it was therefore not necessary for the Court to decide it. It seems to me that the Court should not make a declaration as to a matter that was not the subject of contest before it and was not determined by it. It also seems to me that there is no utility in making such a declaration, when any claim for damages can be established by reference to the findings that I have made in my judgment and the order sought by the parties which expressly reserves OXS's claim to damages in an amount less than $14,038 in that regard. Accordingly, I do not propose to make a declaration in that form. 6OXS submits that declarations should be made in the form of paragraphs 9 and 13 of the relief sought in the Statement of Claim, to the effect that SHFA engaged in misleading or deceptive conduct. SHFA responds that the suggested declarations are sought in general terms and without reference to the particular findings in that respect in my judgment. SHFA points out, and I accept, that a declaration should not be made where, as here, it would merely be prefatory to an order for damages: Attorney-General (NSW); Ex rel Corporate Affairs v Australian Softwood Forests Pty Ltd [1979] 2 NSWLR 73 at 76 per Hutley JA (with whom Reynolds and Samuels JJA agreed); PW Young, C Croft and ML Smith, On Equity, (2009, Lawbook Co) at p 1084. It also seems to me that, as SHFA points out, there is no utility in a declaration which does not relate to particular conduct undertaken at a particular time in particular circumstances so as to resolve any particular dispute between the parties. It also seems to me that the findings that I have made are sufficiently set out in my judgment and would not fairly be reflected by declarations of the generality sought by OXS. Accordingly, I do not propose to make declarations in that form. 7OXS also seeks to have paragraph 24 of the Statement of Claim stood over for further argument, which sought an order that, if OXS's claims against the Minister were unsuccessful, SHFA should pay the Minister's costs of the proceedings. SHFA responds that that issue has already been addressed in paragraph 156 of my judgment and order 2 made on that date, as recorded in my judgment, as between OXS and the Minister. Paragraph 156 of the judgment reads as follows: "OXS submits that SHFA should pay the Minister's costs of the proceedings since it was "wholly responsible" for the Minister's participation in the proceedings, because the Minister's Defence and Statement of Reasons had only emerged after the commencement of the proceedings and SHFA had not admitted OXS's pleading that no decision was made by the Minister. I do not accept that submission. OXS, not SHFA, joined the Minister as party to the proceedings; the Minister's position and its basis was apparent for several months prior to the trial; and OXS pursued its alternative case to trial after the relevant facts had emerged and pursued that case at the trial although no-one, including OXS, sought to establish its basis. That case was not required by SHFA's non-admission of OXS's pleading that no decision was made, since OXS could have discontinued its case against the Minister after the absence of a basis for it emerged and simply relied on the ministerial briefing note to establish that the Minister made no relevant decision. Although it is not necessary to my decision as to costs as between OXS and the Minister, I would add SHFA's non-admission does not seem to me to have been unreasonable, so far as it was seeking to preserve a case (which was properly open to it, although it has not succeeded) that the Minister's involvement in the briefing note supported the advice given in the August 2011 Letter. That is a matter that may be relevant to the position as to costs between OXS and SHFA, but does not seem to me to support an order that SHFA pay the Minister's costs of an unsuccessful claim by OXS against the Minister as to which it had no substantive involvement." [emphasis added] 8Mr Mutton, who appeared for OXS in respect of the hearing as to the form of orders, contended that OXS had not yet had the opportunity to make submissions as to the issue raised by paragraph 24 of the Statement of Claim. I do not accept that contention. OXS had in fact addressed that matter in paragraphs 102-106 of OXS's written submissions at the hearing, and I referred to its submissions in that respect in paragraph 156 of the judgment. Mr Free, who appeared for the Minister, in turn addressed the Minister's position as to costs in the course of oral submissions at the hearing. I acknowledge, however, that Mr Henskens had sought, in oral submissions (T297), to reserve the opportunity to make further submissions as to the question of an order for costs as against the Minister and OXS has not had the opportunity to make those further oral submissions. 9As my judgment had made clear, I have only determined the question of costs as between OXS and the Minister at this point, and the question of costs as between OXS and SHFA is to be the subject of further submissions. An application by OXS for an order, for example, that SHFA indemnify it for the costs that it is required to pay the Minister is still open to it on that basis. However, if OXS now seeks to reopen the orders for costs which have been made as between it and the Minister on the basis that it should have been allowed the opportunity for the further oral submissions it had sought to make as to that issue, then the proper course seems to me for it to make an application to reopen the judgment by reference to the principles in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1992) 176 CLR 300 at 302-303, Wentworth v Wentworth [1999] NSWSC 638 at [13]-[18] and Wentworth v Rogers [2002] NSWSC 921 at [8]. Notice of such an application would need to be given to the Minister and such an application can be made returnable when the matter is next listed before me. I will not include a reference in the orders to paragraph 24 of the Statement of Claim, where any further submissions by OXS as to the Minister's costs of the proceedings are better addressed by such an application. 10Accordingly, I make the following orders, substantially by consent, as between OXS and SHFA: "All claims of relief within the Statement of Claim are dismissed except for the relief claimed in paragraphs 21, 22, 23 and 25 and damages under paragraphs 11 and 15 (but only under s 62D of the Retail Leases Act 1994 (NSW)) in a sum less than $14,038." The parties also sought to have the proceedings listed on a further date for argument as to costs and directions as to the next steps in the proceedings and I have relisted the matter for that purpose.