Plaintiff v Defendant

Supreme Court of Victoria|2015-10-01|Before: CROFT J

The applicant's claim for compensation by way of exemplary damages for loss of goodwill, not having been pressed in the hearing is dismissed.

At no other point in either the reasons of Judge Lacava or the orders which his Honour delivered is mention made of the loss of opportunity to expand the business which resulted from the actions of the Defendant.

87 In any event, even if an issue estoppel did arise in this respect, it would not, in my view, have made any difference to the outcome of the proceedings before Senior Member Riegler. There is nothing to suggest any error of law with respect to the Plaintiff's claim for damages for loss of opportunity in this respect or that on the evidence, or lack of it, which was before the Tribunal, any finding or award of damages would have been other than mere speculation.

88 The further elements of this appeal question do not present as straightforward an application of the principles to which I have referred. While there is considerable overlap in both the issues and the evidence raised in relation to each element, I will deal with each in turn to the extent possible. Again, there can be no question that the dispute here is between the same parties as the decision from which it is said the estoppel is raised, nor can there be any real doubt that that decision is relevantly final. The difficulty in determining whether the findings relating to the uninterrupted years of the Plaintiff's business give rise to an estoppel is presumably the central thrust of the Defendant's submissions that the doctrine of issue estoppel is not relevant to these proceedings, as the issues in question arose under different agreements. For the reasons which I have indicated, this submission cannot be maintained, at least in the present circumstances. The fact that two proceedings which have enlivened a discussion on estoppel may have arisen under different agreements will not always be the decisive factor. What will be decisive here is whether (a) the question to be answered by the factual finding the subject of the alleged estoppel is the same, and (b) whether the findings of Judge Lacava regarding the uninterrupted years of the business established the legal justification for his Honour's decision. I turn to this latter question first.

89 In the Points of Claim brought before Judge Lacava, the Plaintiff made a number of claims for damages, including for the delay in opening the store, for the lack of running water, for not being able to access its allocated parking space from December 2006 until September 2009, for the loss of stock caused by flooding, and for loss of profits for each of the calendar years 2008 to 2011.[169] While a number of the claims were ultimately dismissed, a number of the more substantial claims were upheld. It is readily apparent from reading the findings of Judge Lacava that the interruption to the Plaintiff's business was "legally indispensable" to the conclusions which his Honour reached.

90 I turn now to the remaining elements of this Question 2.

(i) "Uninterrupted years" and calculating the growth rate

91 The Plaintiff submits "that 2007 was the only year of trading unaffected by any breach of the Lease by the Defendant. Instead the Tribunal regarded 2009 as an 'uninterrupted' year with the consequence that the poorer trading figures for that year were taken as a basis for reducing the Plaintiff's claim for loss of profit."[170]

92 The Defendant submits in response that Senior Member Riegler recognised that he was bound by Judge Lacava's findings as to the projected sales and cost of sales for the years up to and including 2011 and that those findings were not open to be revisited by the Tribunal.[171] Further, rather than revisiting those findings, the Senior Member was correct in treating the projected sales and cost of sales for subsequent years - including the appropriate growth rate to be applied in calculating those figures - as being open to determination on the evidence presented before the Tribunal.

93 Judge Lacava first made mention of it when his Honour said:[172]

The Trading & Profit & Loss Statements of the applicant for the calendar year 2008 show that the applicant's business dropped away significantly after the construction work began at the adjoining premises and never recovered. Mrs Spaleta said her customers just did not want to be in the store with all of the work going on. She said the customers just would not remain in the store for the hour needed to properly fit them with expensive bras. Being unable to provide her service, she said the applicant's business suffered. I accept that evidence

I agree the evidence shows 2007 to be the only unaffected year. From April 2008, the takings of the business plummeted as it was affected by the adjoining construction works and the problems of flooding that later beset the premises which were also a consequence of the construction works.

It is clear here that the 2007 year was the only year of the tenancy where the applicant appears to have been able to trade relatively unaffected by any breach of the lease of the respondent.

96 In my view, this last finding was an indispensable element of Judge Lacava's final finding as to the gross projected sales and cost of sales for each of the years up to and including 2011 - a finding which Senior Member Riegler accepted as binding in the second proceeding:[175]

[W]hat was found to be the Projected Sales in 2011 represents the springboard or platform upon which I am to calculate whether the Tenant suffered any further loss of profit in the years that followed.

However, the Senior Member continued:[176]

In forming that view, I accept that I am not bound to adopt the same methodology of calculation as was adopted by the Tribunal in the ... [Lacava decision].

97 After setting out Mr Fettes' findings in relation to the Australian clothing, footwear and accessories retailing market for the period 2008 to 2011, Senior Member Riegler acknowledged the Plaintiff's submission that it would be inappropriate to rely on Australian Bureau of Statistics ("ABS") data as its business was "unique and not necessarily analogous to other businesses within the Australian clothing, footwear and accessories retailing market."[177] The Senior Member then went on to say:[178]

However, Mr Fettes also pointed to the fact that in 2009, there were no business disruptions experienced by the Tenant. However, the gross sales for that calendar year had dropped by 21.8% from 2008. He states further:
1. The disruption from the building work concluded in August 2008. In September and October 2008 Versus recorded better results than they had in September and October 2007, this suggests that the effects of the disruption were over.
2. Sales in November 2008 were 37% lower than 2007 and sales in December 2008 were 27% lower than 2007.
3. That sales improved after the disruption, before declining again, suggests the cause of the decline from November 2008 was not the disruption in May to August 2008.
4. Given the mixed performance over the year, I believe that the most appropriate estimate of growth in 2008 would be the growth level recorded in the ... [ABS] for Clothing, Footwear and Accessories Retail sales (ABS series ID A 3350270 L). This was 0.987%
Further, when comparing the two uninterrupted years, namely 2007 and 2009, sales receipts have fallen. In particular, according to the data furnished by the Tenant, sales in 2007 amounted to $120,945. That reduced to $95,462 in 2009, leaving a deficit of $25,483. This represents a 21% drop in revenue. Interestingly, the sharpest decline occurred in the comparative December to January period of both years. As I have indicated, there is no evidence before me to explain why revenue dropped so significantly in 2009. It is not suggested that there were any business disruptions and it appears that the vicissitudes of the retail market resulted in less lingerie being purchased over the Christmas period in 2009, compared with what was purchased in 2007.

98 The Tribunal's assertion that there were "two uninterrupted years, namely 2007 and 2009" is plainly contrary to Judge Lacava's express finding that "the evidence shows 2007 to be the only unaffected year."[179] As I have already said, I regard Judge Lacava's finding as an indispensible finding of fact. Accordingly, to the extent that Senior Member Riegler accepted the Defendant's expert's evidence that both 2007 and 2009 were uninterrupted years, the Tribunal fell into error.

99 Notwithstanding this error, the Senior Member correctly continued to use Judge Lacava's projected gross sales for the years up to and including 2011 as the basis for the further projected gross sales for the years 2012 and 2013.[180]

100 However, the Plaintiff submits that the Senior Member's error tainted the Tribunal's subsequent finding as to the appropriate growth rate for calculating those further projections, contrary to the methodology used by Judge Lacava.

101 Judge Lacava's methodology applied a six per cent annual growth rate to the Plaintiff's 2007 trading figures in order to calculate projected sales for the years up to and including 2011:[181]

Whilst I accept the applicant's figures show an actual average rate of growth of 15.67% in the first four months of 2008, in my view, it is unrealistic to expect the business to continue to grow in sales at that rate. Four months is only a small period of time from which to estimate what sales would be over a period of four years. In my view, it is more appropriate to apply a growth rate of 6% to the 2007 sales figures and in my calculations of loss of profits I have used this figure.

102 Senior Member Riegler implicitly criticised that approach, preferring the evidence provided by the Defendant's expert, Mr Fettes:[182]

Therefore, I am of the view that to continue to extrapolate an arbitrary growth rate of 6% is without foundation and contrary to Mr Fettes' expert evidence. Regrettably, however, neither party have provided any evidence as to what growth rate should be adopted for the years 2012 and following. As indicated above, the Tenant's submission is simply limited to a contention that I should continue to add 6% to the Projected Sales for 2011, compounding for each year thereafter. On the other hand, the Landlord's [sic] submits that it would be unsafe to adopt that methodology.
Doing the best I can with the evidence before me, I am of the opinion that the projected growth rate for 2012 and 2013 should be calculated by reference to the ABS growth rate data applicable to the clothing footwear and accessories retail market, averaged over the four year period from 2008 to 2011. This equates to 0.59% ...

103 The Defendant submits that Senior Member Riegler was entitled to use a new methodology for projecting profit and loss for the 2012 and 2013 years on the basis that the projection was made in relation to a different lease and did not upset - and in fact relied on - Judge Lacava's binding finding as to the projected gross sales up to and including 2011.[183]

104 I regard it as significant that Judge Lacava had expressly rejected the Defendant's submission - on the evidence of its witness Mr Lavelle - that the ABS inflation rate should be used to calculate the growth rate. While I note that the ABS inflation figures referred to by Mr Lavelle in the first proceeding and the ABS clothing, footwear and accessories market figures referred to by Mr Fettes in the second proceeding were different, in my view Judge Lacava had explicitly rejected a market-based calculation of the Plaintiff's growth rate and instead directed his attention to the specific facts of the Plaintiff's business, so far as ascertainable:[184]

Mr Lavelle deals with how he arrived at this growth rate in paragraph 43 of his report. In short, it is the average inflation rate based on information published by the Australia Bureau of Statistics.
I reject the growth rate applied by Mr Lavelle. In my view, the inflation rate, being as it is, based on a basket of selected expenses, has little to do with the actual sales figures of the applicant's business. In my view, the growth rate adopted by Mr Lavelle is far too conservative and to apply it would result in unfairness to the applicant and not properly compensate it for its lost profits.
In my opinion, the actual sales figures, up until the time that the applicant's business was affected by the building works on the adjoining premises, were increasing at a rate well above the inflation rate, as is demonstrated by the first page of exhibit F-1.
In my opinion, based on the first four months of trading of 2008 and, comparing those figures with the same period in the previous year, the applicant could reasonably have expected its sales to continue to increase over the previous year at a rate of at least 6%. That rate is more than twice the inflation rate but, in my view, better reflects the way the applicant's business was headed so far as sales are concerned. I recognise it is considerably less than the 15.67% sought to be applied by the applicant.

105 I accept that Judge Lacava's finding as to the appropriate growth rate was a finding of fact based solely on the facts of the Plaintiff's business and not the broader market conditions cited by the Defendant's expert witnesses. That finding was an indispensible element of his Honour's calculation of the Plaintiff's projected gross sales and costs for the years up to and including the 2011 year that the Senior Member used as a basis for the 2012 and 2013 projections, and bound the Tribunal in the same way. If, in a different world, Judge Lacava had concluded that market-wide sales data was a component of the calculation, it may well have been open to the Tribunal to update that data with fresh evidence in subsequent years. But the relevant factual evidence relied on by Judge Lacava in characterising the Plaintiff's growth prospects remained on foot, in large part due to what is said to be the Defendant's conduct. Accordingly I do not accept the Defendant's submission that the Tribunal was entitled to recalculate the projected growth rate of the Plaintiff's business for the years 2012 and 2013 on the basis that this calculation was performed under a new lease and in respect of different years.

106 I am left to conclude that the Tribunal fell into error in its calculation of the Plaintiff's profit and loss insofar as it did not recognise that it was bound by Judge Lacava's finding that 2007 was the Plaintiff's only uninterrupted year of trading and by Judge Lacava's subsequent finding as to the appropriate growth rate to be applied when projecting the Plaintiff's gross sales.

(ii) The Plaintiff's inability to reoccupy the leased premises

107 The Plaintiff submits that Judge Lacava made a finding that the Plaintiff was unable to return to occupy the premises after May 2011, and that Senior Member Riegler did not recognise that the parties were bound by the finding and, had the Senior Member in fact done so, that finding would have contributed to a finding by the Senior Member that the Defendant had repudiated the lease by failing to remediate the premises.[185]

108 The Plaintiff cites several paragraphs of Judge Lacava's reasons in support of its submission:[186]

On 3 June, a report commissioned by the respondent from FBI (Atchison), was prepared. That report shows that on inspection of the premises on 27 May 2010 there was evidence of rising damp in the store area and mould in the store area and the shop. The existence of mould in the premises remains a significant issue that denies the applicant ongoing occupation and use of the premises.

109 His Honour goes on, citing various reports provided in evidence including reports based on sampling performed on 17 May 2011 and 21 October 2011:[187]

It is obvious from a reading of the reports on mould in the premises that they cannot be occupied until the mould is properly treated.

110 Further, regarding the decline of the Plaintiff's wholesale business:[188]

No wholesale is recorded for sales in the figures for 2011. The premises closed in May and the applicant has been unable to return.

Although the builder declared the premises to be fit for purpose in August 2011, the applicant has been unable to return to occupation because the building has mould in it. The respondent accepts this to be the case.

112 The Plaintiff acknowledged in its submissions that the Tribunal can be seen to have accepted that finding, at least in part, in the context of the Plaintiff's claim for electricity charges levied against the premises from January 2012 until the time the lease ended in April 2013:[190]

The fact that it [the tenant] was unable to resume occupation in early 2012 results from the failure on the part of the Landlord to effect remedial work in a timely manner.

However, the Plaintiff does not cite a specific instance in which Senior Member Riegler departed from Judge Lacava's finding, instead saying simply that the finding did not seem to have been recognised in the Tribunal's reasons.[191]

113 Taken together, it is apparent to me from his Honour's reasons as cited above that Judge Lacava found that the premises were unoccupiable, and that this was a continual, if not continuous, state of affairs. The Plaintiff submits that Judge Lacava's finding was a necessary component of the final determination in favour of the Plaintiff, and one that advances its claim that the Defendant repudiated the agreement. The Defendant submitted in oral argument by way of response that, first, the relevant findings had been accepted and had not been contradicted by any finding by the Tribunal, and secondly, Judge Lacava was not faced with any question of repudiation and therefore the Plaintiff's case could not be advanced by any such issue estoppel.[192]

114 Leaving aside the question whether the estoppel asserted by the Plaintiff would advance its position, for the reasons above, I am of the view that, following Barwick CJ in Ramsay v Pigram, it is immaterial in this instance that the cause of action in this proceeding is different.[193] I am also satisfied that the Tribunal was bound by the finding as to the continual unoccupiability embodied in the paragraphs of Judge Lacava's reasons cited above.

115 While it may be that this advances the Plaintiff's case elsewhere in this appeal, I accept the Defendant's submission to the extent that the Plaintiff's submissions have not demonstrated that Senior Member Riegler disputed, revisited or diverged from Judge Lacava's finding. Rather, the Senior Member's attention when determining the question of repudiation was directed away from the unoccupiability of the premises during the time described by Judge Lacava and - rightly or wrongly - towards the Defendant's later remedial efforts. The subsequent question whether the Tribunal misapplied the doctrine of repudiation is addressed below in relation to Question 3.

116 In my view, it follows that the findings of Judge Lacava with respect to the operation of the Plaintiff's business do bind the Tribunal in the subsequent proceedings and thus the Plaintiff's case would have been advanced with respect to the matters it relied upon for the purposes of this question - except with respect to the loss of opportunity claim for the proposed Sydney store.

117 The consequences of this position are considered in the reasons which follow with respect to the remaining questions raised by way of appeal; particularly, Questions 3 and 4.

118 The Plaintiff submits that the Tribunal misapplied the doctrine of repudiation by wrongly failing to assess the question of repudiation on an entirely objective basis, or by wrongly failing to regard the Defendant's failure to remediate the leased premises between May 2011 and April 2013 as a repudiation of the lease.[194]

119 The Tribunal found that "the evidence does not demonstrate that the failure to make the Premises fit for occupation by 27 March 2013 evinced an intention that the Landlord was not willing to perform its obligations under the Lease."[195] Rather, it was held that the Defendant had in fact been attempting to remediate the premises, "albeit at a pace that justifiably attracted criticism."[196] Accordingly, the Tribunal found that the Defendant had not repudiated the lease, and that the Defendant's correspondence dated 9 April 2013 - by which the Defendant confirmed the lease was at an end - instead evinced an intention on behalf of each of the parties to effectively mutually abandon the lease.[197]

120 The Plaintiff submits that the Tribunal's findings in this respect involved a misapplication of the doctrine of repudiation, a submission which rests upon four propositions.[198] First, that the Tribunal's analysis amounts to a subjective analysis of the Defendant's intention from the perspective of the Defendant, when what the doctrine requires is an objective analysis taken from the perspective of a reasonable person in the position of the Plaintiff. Secondly, the Tribunal fails to recognise that a persistent failure to perform a contract may constitute repudiation even though the party in breach may genuinely intend to perform at some future time. Thirdly, the Tribunal's analysis takes into account in assessing the Defendant's intention matters which occurred after the purported date of the repudiation. Finally, by characterising the Defendant's failings as merely being slow in effecting the remedial work, the Tribunal ignores the fact that by the date of the repudiation, the Plaintiff had been denied occupation of the premises for 22 months. While there is some degree of overlap between each of the Plaintiff's propositions, I will deal with each in turn, as far as practicable.

121 It is well established that the legal test with respect to repudiatory conduct is perspicuous,[199] and that repudiation is a serious matter which is not to be lightly inferred.[200] It was said in the oft-cited decision in Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd that what must be present to support a finding of repudiation is conduct, verbal or otherwise, which conveys to the innocent party the defaulting party's inability, or unwillingness, to perform the contract, or, an intention to perform it only in a manner substantially inconsistent with that party's obligations.[201]

122 In that case, Brennan J expressed the test as follows:[202]

The question whether an inference of repudiation should be drawn merely from continued failure to perform requires an evaluation of the delay from the standpoint of the innocent party. Would a reasonable person in the shoes of the innocent party clearly infer that the other party would not be bound by the contract or would fulfil it only in a manner substantially inconsistent with that party's obligations and in no other way? Different minds may easily arrive at different answers.

123 More recently, in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd, the High Court again framed the question of whether there has been repudiation by reference to how a reasonable person would view the conduct of a defaulting party:[203]

The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.

124 It is clear then that a finding of repudiation is not to be ascertained by an inquiry into the subjective state of mind of the defaulting party. As the Plaintiff's submissions on this first proposition to which I will refer shortly indicate, the reasoning of the Tribunal does suggest that the Tribunal did engage, at least in part, in a subjective analysis into the mind of the Defendant.

125 In determining how the lease came to an end, the Tribunal examined the steps which the Defendant says it was taking to remediate the premises. The Tribunal also looked at a number of the reports which had been prepared at various stages in regard to the moisture levels, and related mould issues, in the premises.[204] After conducting this review, the Tribunal made a number of comments which the Plaintiff says shows that the focus of the discussion surrounding how the lease was brought to an end was erroneously directed towards a subjective analysis of what was in the mind of the Defendant.[205] The passage by which the Plaintiff says the proper application of the doctrine of repudiation is impugned is as follows:[206]

I have set out the facts concerning the remedial work in order to determine whether the delay in achieving remediated Premises fit for re-occupation could be said to demonstrate that the Landlord has evinced an intention that it did not intend to be bound by the terms of the Lease. In my view, the evidence does not go that far. Although the parties have differing views as to the diligence or otherwise of the Landlord, I find that the Landlord was attempting to remediate the Premises, albeit at a pace that justifiably attracted criticism.
Consequently, I find that the evidence does not demonstrate that the failure to make the Premises fit for occupation by 27 March 2013 evinced an intention that the Landlord was not willing to perform its obligations under the Lease. That being the case, I find that the purported termination of the Lease by the Tenant was ineffective, insofar as it was based on the acts or omissions on the part of the Landlord.

126 Had the Tribunal applied the correct, objective, test, it would have been required to investigate what a reasonable person in the shoes of the Plaintiff would have inferred from the conduct of the Defendant in regard to the Defendant's intention to fulfil its obligation under the lease. While I will deal in greater detail with the significance of the delay which occurred in the Defendant's attempts to remediate the premises when I turn to consider the Plaintiff's second proposition, it is worth noting here that the issue of the delay is an important element in relation to the inferences which a reasonable person may have drawn from the Defendant's conduct. However, for present purposes, the critical factor here is that it cannot, in my view, be said, upon reading the reasons of the Tribunal, that the position of the Plaintiff, or at least a "reasonable person" in such a position, was given sufficient consideration. I think it is the case that, as the Plaintiff submits, the focus of the Tribunal was on the measures which the Defendant was taking and "processing", rather than how a reasonable person may view such measures as had actually been taken; with little progress towards addressing critical matters over a relatively long period of time. Depending on particular circumstances, it may be the case that focusing on the motive of the defaulting party may not always be a misapplication of or a failure to apply the objective test for determining whether repudiation has occurred, a point I will expand upon further.

127 It is important to take account - particularly in these present circumstances in which the waters are said to be muddied by the exercise of the option to renew the lease - of the particular attributes with which a reasonable person in the position of an innocent party may be endowed, as it would be incorrect to suggest that the "man on the Clapham omnibus" simply takes the place of the plaintiff.[207] Rather, all of the knowledge and information which the plaintiff actually possesses may be attributed to the reasonable person in order to determine whether it was indeed "reasonable" to view the conduct of the defendant as repudiating the agreement. As much was said by Etherton LJ in Eminence Property Developments Ltd v Heaney:[208]

[A]ll the circumstances must be taken into account insofar as they bear on an objective assessment of the intention of the contract breaker. This means that motive, while irrelevant if relied upon solely to show the subjective intention of the contract breaker, may be relevant if it is something or it reflects something of which the innocent party was, or a reasonable person in his or her position would have been, aware and throws light on the way the alleged repudiatory act would be viewed by such a reasonable person.

128 Importantly, this extract from Etherton LJ does not detract from the position that, although the test is objective, it does accommodate the subjective intent of the "contract breaker" so long as that intent is manifested to the other relevant party objectively. It must follow, though, that such "objective" statements of intent must be viewed against what the "contract breaker" actually does over time to address or remediate the breaches upon which the claim for repudiation is ultimately founded.

129 Thus, I turn now to consider the second proposition raised by the Plaintiff on this question on appeal; namely, whether the Tribunal's interpretation of the doctrine of repudiation failed to recognise that a persistent failure to perform a contract may constitute repudiation even though the party in breach may genuinely intend to fulfil their obligations at a later point of time.

130 In Laurinda, Mason CJ spoke of the fine line which exists between a reluctance to perform one's obligations in a timely manner, as opposed to a reluctance to ever perform those obligations. The Chief Justice said:[209]

There is a difference between evincing an intention to carry out a contract only if and when it suits the party to do so and evincing an intention to carry out a contract as and when it suits the party to do so. In the first case the party intends not to carry out the contract at all in the event that it does not suit him. In the second case the party intends to carry out the contract, but only to carry it out as and when it suits him. It is much easier to say of the first than of the second case that the party has evinced an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with his obligations and not in any other way. But the outcome in the second case will depend upon its particular circumstances, including the terms of the contract. In some situations the intention to carry out the contract as and when it suits the party may be taken to such lengths that it amounts to an intention to fulfil the contract only in a manner substantially inconsistent with the party's obligations and not in any other way.

131 In the same case, Deane and Dawson JJ examined a number of English authorities which discussed the circumstances where non-performance may constitute repudiation, again emphasising the importance of viewing the non-performance through the eyes of a reasonable person in the position of the innocent party. Their Honours said:[210]

An issue of repudiation turns upon objective acts and omissions and not upon uncommunicated intention. The question is what effect the lessor's conduct 'would be reasonably calculated to have upon a reasonable person.'[211] It suffices that, viewed objectively, the conduct of the relevant party has been such as to convey to a reasonable person, in the situation of the other party, repudiation or disavowal either of the contract as a whole or of a fundamental obligation under it.

...

It is not necessary for repudiation of a contract that the repudiator make plain that he will never perform his contractual obligations at all. What Lord Dunedin described[212] as the assumption of 'a shilly-shallying attitude in regard to the contract' and what Lord Shaw of Dunfermline[213] called 'procrastination ... persistently practised' can, in some circumstances, reach the stage of repudiation even though accompanied by assurances of ultimate performance at some future time. In that regard, the law was correctly stated by Lord Shaw in the following extract from his judgment in Forslind[214] which is directly in point to the circumstances of the present case:

If, in short, A, a party to a contract, acts in such a fashion of ignoring or not complying with his obligations under it, B, the other party, is entitled to say: 'My rights under this contract are being completely ignored and my interests may suffer by non-performance by A of his obligations, and that to such a fundamental and essential extent that I declare he is treating me as if no contract existed which bound him.' ... In business over and over again it occurs - as, in my opinion, it occurred in the present case - that procrastination is so persistently practised as to make a most serious inroad into the rights of the other party to a contract. There must be a stage when the person suffering from that is entitled to say: 'This must be brought to an end. My efforts have been unavailing, and I declare that you have broken your contract relations with me.'

Lord Shaw[215] went on to point out that 'the question whether the stage has been reached when procrastination or non-performance' constitutes repudiation is essentially one of fact. That question will, as has been said, only be properly answered in the affirmative when procrastination or non-performance has marked the stage of conveying to a reasonable person, in the situation of the other party, repudiation or disavowal either of the contract as a whole or of a fundamental obligation under it.

132 There is, with respect, a great deal of force in the words of Lord Shaw to which Deane and Dawson JJ have referred. Nevertheless, after considering the statement of Mason CJ in Laurinda, the Tribunal found that the present circumstances fell within the second category posited by Mason CJ; namely, that the Defendant evinced an intention to carry out repairs and remedial work as and when it suited it to do so.[216] The Tribunal went on to say:[217]

Therefore, it is necessary to look at the circumstances leading up to the purported termination of the Lease in order to determine whether the delay in effecting repairs and remedial work is reasonably explicable or whether the delay leads to the inexorable conclusion that the Landlord had no real intention of making the Premises fit for occupation.

133 Turning now to the third proposition, I find that again, while the Plaintiff's submissions on this point have some merit, they do not support the position that the findings of the Tribunal regarding repudiation were in error. It is true that the Tribunal did make reference to a number of events which took place after 27 March 2013, including reports which were dated 3 April 2013, 16 May 2013, and 14 August 2013, as well as evidence of airborne sampling of the premises conducted on 20 April 2013.[218] As the Plaintiff has correctly submitted, these are not matters which can be given any weight when considerations are made as to the Defendant's intention to fulfil its obligations under the lease, nor do they colour the circumstances which may be considered when one determines how a reasonable person in the position of the Plaintiff may infer what the Defendant's intentions may be regarding those obligations. However, rather than demonstrating that matters which occurred after the date of the alleged repudiation were taken into account by the Tribunal in assessing the Defendant's intention, the Tribunal explicitly stated that these later events did not assist with determining whether the termination of the lease was justified:[219]

I find that at some point prior to 14 August 2013, the Premises had been adequately remediated. In other words, given that there is no evidence to contradict the opinion expressed in the LRM Global report, the Tenant's claim that the Premises have never been made for fit for re-occupation is not made out.
However, the fact that the Premises may have been fit for occupation as at 14 August 2013 does not, necessarily, assist me in determining whether the Tenant lawfully terminated the Lease on 27 March 2013.

134 The final proposition on which this question on appeal is founded - that the Tribunal ignored the fact that the Plaintiff had been denied occupation of the premises for 22 months prior to purporting to accept the Defendant's repudiation - overlaps to some degree with the second proposition, that of delay.

135 In my opinion, the Tribunal made errors of law with respect to the first, second and fourth propositions advanced by the Plaintiff in this context and thereby failed to find that the Defendant had repudiated the lease. This failure to find repudiation flowed from too great significance being given to the asserted intention of the Defendant to rectify and address breaches - particularly in the context of the full picture of objective facts including those found with respect to the period Judge Lacava was considering, as a result of the application of ss 52 and 54 of the Act, as well as the matters the subject of Judge Lacava's findings discussed above in the context of issue estoppel. The whole picture provided by an appreciation of the relationship between and operation of ss 52 and 54 of the Act is of significantly breached "statutory covenants" throughout the original and renewed terms where the factors which were to be properly considered with respect to repudiation were not to be taken out of the picture by reason of the renewal of the lease - whether as a result of the operation of s 54(2)(e)(ii) of the Act or otherwise.[220]

136 The Plaintiff submits that the Tribunal wrongly treated the Plaintiff's claim for goodwill as a unitary claim and, in dismissing that claim, wrongly failed to consider and determine whether the Plaintiff's claim for loss of goodwill should have been upheld in part.[221]

137 Senior Member Riegler addressed and dismissed the Plaintiff's claim for loss of goodwill.[222] Senior Member Riegler did so because he was not prepared to find on the evidence that the Plaintiff's business had been "completely destroyed":[223]

Ultimately, I consider that there is insufficient evidence to find, on the balance of probabilities, that the rescission of the supply contracts occurred after the Earlier Proceeding was heard. Importantly, however, even if it were established that the supply contracts were rescinded after the Earlier Proceeding was heard, there is insufficient evidence tying that factor to the destruction of the Tenant's business in order to draw the necessary causal link. No doubt the loss of supply contracts may have adversely impacted on the profitability of the business, however, that is a far cry from concluding that the business has been completely destroyed. In my view, further evidence would need to have been adduced that any attempt to re-establish supply contracts was unsuccessful and that this led to a situation where the Tenant was unable to trade profitably. There is no direct evidence establishing that.
In my view, the evidence going to the issue that the Tenant's business has been completely destroyed, such that it is no longer viable to re-establish that business, is speculative. I am not persuaded, based on the general comments made by Mr and Mrs Spaleta, that the business conducted by the Tenant was unable to be re-established during the currency of the Lease, had it run its full term. No doubt, the Tenant may have suffered ongoing losses but that is a very different head of damage to a claim for damages based on the business having been completely destroyed.
Moreover, the quantum claimed in respect of the destruction of the business or business goodwill is premised on an assumption that the business would have expanded to ten retail outlets. Again, the evidence going to that issue is speculative and I am not persuaded that this goal could have been achieved. In particular, there are so many variables which may affect the growth of a retail business from year to year and its ability to expand its operations to more than one retail outlet. These variables include factors such as the state of the retail market from one year to another, the availability of other retail premises and the likely profit that might be derived by those other retail outlets, especially when located in other locations that might have a very different demographic to the retail market in Brighton. The only evidence given in relation to these factors are general comments, reflecting the ambition of the Tenant to expand its business. No expert opinion evidence was adduced in support of this aspect of the Tenant's claim. The evidence was largely given by Mr Spaleta, who is not qualified as an expert witness. Consequently, I find that the Tenant's claim, in so far as it relates to the head of damage categorised as the destruction of the Tenant's business or loss of goodwill is unproven.

It is clear that this approach treated the goodwill as a unitary concept, the consequence being that the Plaintiff had either lost all its goodwill or none of it.

138 I accept the Plaintiff's submissions that the approach of Senior Member Riegler in this respect mistakes the concept of goodwill, particularly as explained by the High Court in Commissioner of Taxation v Murry.[224] As the High Court explained in Murry, goodwill is an indivisible item of property that is inseparable from the conduct of a business;[225] it includes whatever adds value to a business by reason of situation, name, reputation, connection, introduction to customers and the absence of competition;[226] and, it is the attractive force that brings in custom.[227] A further characteristic of goodwill, which is important for present purposes, is that it has value;[228] the value of goodwill can vary;[229] and it follows that goodwill can be diminished in value.[230]

139 As the Plaintiff submits, the Tribunal failed to consider whether its goodwill, although not completely destroyed, had nevertheless been diminished in value by the actions of the Defendant. I accept that, had the Tribunal done so, it would have found that being kept out of occupation from the premises for 22 months had damaged the Plaintiff's goodwill and had reduced it in value, and the Tribunal would have compensated the Plaintiff accordingly. The Defendant submits that there was no evidence before the Tribunal by which to assess a reduction in goodwill.[231] I do not accept that this is an answer to the Plaintiff's claim. To the extent that the Plaintiff's claim for goodwill was open to be quantified, so too was any diminution of that goodwill. Senior Member Riegler noted that a claim for loss of goodwill had been abandoned in the earlier proceeding before Judge Lacava and said that the reasons for that had not been explained to him;[232] whereas, the reasons had in fact been explained by the Plaintiff.[233] It would appear, as the Plaintiff submitted in oral argument, that the assertedly unexplained abandonment of the claim, as Senior Member Riegler incorrectly believed it to be, influenced his approach to goodwill and may have contributed to the error which has been identified.[234] In any event, for the preceding reasons, I am of the opinion that the eighth ground specified in the Amended Notice of Appeal is established.

140 The Plaintiff submits that the Tribunal wrongly failed to assess compensation (whether for a breach of s 54 of the Act or otherwise) on the basis of a loss of opportunity to expand the business of the Plaintiff by establishing another store or stores.[235]

141 In the proceedings before Senior Member Riegler, the Plaintiff contended that its business would have expanded to ten retail outlets. In its closing submissions before the Senior Member, the Plaintiff pointed to correspondence with the Defendant showing a clear articulation of this intention before it took an assignment of the lease.[236] This contention and the evidence relied upon was described by Senior Member Riegler as "speculative", and the Senior Member concluded that he was not persuaded that it could be achieved.[237] Consequently, the Tribunal refused to grant any relief in respect of the Plaintiff's claimed inability to expand to further retail outlets.

142 The Plaintiff submits that the Tribunal's conclusion in relation to this issue involved two errors of law. First, it is said that it ignored Judge Lacava's finding that the Plaintiff planned to establish another retail outlet in Sydney.[238] There is, as the Plaintiff says, no reference to that finding in Senior Member Riegler's reasons, even though he had plainly read Judge Lacava's reasons;[239] and this finding was emphasised in the Plaintiff's submissions before the Tribunal.[240] Secondly, it did not address the Plaintiff's submission that it had suffered a loss of opportunity to open further retail outlets; referring the Tribunal to and relying upon the High Court decision in Commonwealth v Amann Aviation Pty Ltd.[241] Senior Member Riegler did note the existence of the Plaintiff's claim for loss of opportunity at one point in his reasons,[242] but nowhere else in the reasons is the loss of opportunity claim separately considered. The Plaintiff contends that, had its loss of opportunity claim been considered by the Tribunal, it would have been awarded further compensation for loss of the opportunity to open a further retail outlet in Sydney. While the Plaintiff originally sought to claim for loss of opportunity in relation to other proposed retail outlets, that claim was not and is not pressed.[243]

143 I am of the opinion that the seventh ground set out in the Amended Notice of Appeal is established - with the caveat that, as noted earlier in these reasons, I am not satisfied that any issue estoppel arose in respect of Judge Lacava's finding at paragraph 11 of his Honour's reasons.[244]

144 The Plaintiff submitted that it was not open to the Tribunal on the evidence and material before it to find that there was no evidence as to whether stock preview items would continue to be provided or whether they would continue to be provided at such a reduced cost; and further that the Tribunal was obliged to have regard to evidence that stock preview items would continue to be provided and would continue to be provided at such reduced cost.[245]

145 As noted above, the Plaintiff submitted that its considerable retail mark-ups were the result of its having assumed the roles of importer, distributor and retailer, and that its ability to achieve higher mark-ups on the preview items was a resultant privilege.[246] It was further said by the Plaintiff that it received the preview items as an incident of its normal business and, but for the interruptions to its business, would have continued to receive the preview items with similar frequency and at similarly low cost.[247] Senior Member Riegler assessed the Plaintiff's claim for loss of profit on its retail business as follows:[248]

In my view, the inclusion of those select few Preview Items within other stock items, skews the calculation considerably. Therefore, I do not consider it appropriate to include those Preview Items as part of the data used in calculating the average mark up of stock items. Moreover, there is no evidence as to whether those promotional stock items will continue to be provided or whether they will continue to be provided at such a reduced cost. Nevertheless, even if those Preview Items are ignored, the average mark up according to the document tendered in evidence is approximately 253%.

Senior Member Riegler did accept that the Plaintiff would have enjoyed a higher mark-up "given its unique position as importer, distributor and retailer." However, he based the assessment solely on ordered goods and rejected any contribution to profit margin of what are called "preview items", which were also described by the Senior Member as "promotional items". As will be seen from the reasons of Senior Member Riegler which are set out above, the finding is made that "[m]oreover, there is no evidence as to whether those promotional items will continue to be provided or whether they will continue to be provided at such a reduced cost".[249] The Plaintiff submits there was in fact evidence in this respect before the Tribunal.[250] It follows, for this reason, that the finding was not open to the Tribunal. Moreover, whether the Tribunal has reached a finding or conclusion that was not open to it is a question of law.[251] Similarly, it is an error of law if the Tribunal failed to take into account a matter that it was bound to take into account.[252]

146 The Defendant submits in response that due to the Plaintiff's loss of the supply contracts, there was no supply of preview items and no evidence of the terms on which they might be supplied during 2012 and 2013.[253] In my view, this submission is unsustainable, as there is no evidence to indicate that, but for the matters complained of in this proceeding, the supply terms and availability of merchandise to the Plaintiff would have been any different during the period the subject of the Tribunal's decision. As the Plaintiff submitted in oral argument:[254]

Of course once the distribution contract's ended, that was the end of it, but that's what happened in fact. But this is about what would have happened if the landlord had fulfilled his [sic] duty.

147 Rather, in this instance there was, as the Plaintiff submits, relevant evidence before the Tribunal, and the Tribunal's conclusion expressed in the passage from the reasons which are set out above shows that it did not consider that evidence.[255] Instead, the Tribunal reached a conclusion as to the absence of evidence that was not open on the evidence before it.

148 The Plaintiff contends that the evidence in support of its claim with respect to the stock preview items was compelling and that, had the Tribunal taken the evidence of preview sales into account in assessing loss of profit, it would have come to a finding as to the Plaintiff's profit margin of approximately double the margin it found, which would, in turn, have approximately doubled the damages awarded for loss of profit. It appears to me that the Tribunal's removal of the preview items from the gross profit calculation was a Procrustean exercise unsupported by any additional evidence justifying a departure from the position adopted by Judge Lacava based on the evidence given by the Plaintiff. In any event, I am of the opinion that the ninth ground set out in the Amended Notice of Appeal is established and that assessment of damages for loss of profit on a proper basis is a matter for the Tribunal on remitter.

149 The Plaintiff submits that the Tribunal's exercise of its jurisdiction failed or miscarried, actually or constructively, due to the Defendant's failure to comply fully with its obligation to give discovery of documents.[256]

150 Late in December 2014, new material was made available to the Plaintiff which had not previously been available to it.[257] The material consists of documents produced on subpoena which the Plaintiff contends ought to have been discovered by the Defendant during the earlier VCAT proceeding. The Plaintiff submits that this material is relevant for the following reasons:[258]

At [93] of the Riegler SM's reasons, the Senior Member found that "... the Landlord was attempting to remediate the Premises, albeit at a pace that justifiably attracted criticism". As appears from [91], this conclusion was based on a report from the Landlord's expert LRM Global dated 14 August 2013 (CB 580). On this basis the Senior Member held at [94] that the Landlord's failure to make the premises fit for occupation by 27 March 2013 did not evince an intention that the Landlord was not willing to perform its obligations under the Lease and, in consequence, that the Plaintiff's purported termination of the Lease was ineffective.
This in turn led the Senior Member to a finding that the lease had terminated by mutual abandonment on 9 April 2013 (at [96]), and to dismiss the Plaintiff's claim for loss of profit in respect of the period after that date (at [98]).
The material produced under subpoena casts doubt on conclusion of the LRM Global report of 14 August 2013. Notably:

(a) the earlier reports by LRM Global of 5 July 2013 (CB 1057) and 1 August 2013 (CB 1089), which were not discovered, adopted a method of testing that showed high levels of surface mould, including active mould growth, but this method was not adopted for the report of 14 August 2013 on which the Tribunal relied. The justification stated in the 14 August 2013 report is inconsistent with the description of at least one of the locations tested in the 5 July 2013 report;

(b) the 14 August 2013 report does not address the problem of moisture ingress identified in the 5 July 2013 report;

(c) the 14 August 2013 report does not explain why mould remediators were still working in the premises after the inspection reported on, as to which see CB 1118.

151 The Plaintiff contends that the question here is whether the Tribunal's jurisdiction miscarried. In this respect, reference is made to Johnson v Director of Consumer Affairs Victoria as authority for the proposition that an error by the Tribunal on a matter affecting its jurisdiction is an error of law.[259] Moreover, it is contended that, on the same authority, s 148 of the VCAT Act is the appropriate vehicle to challenge such an error. Reference is also made to authority for the proposition that there is jurisdictional error on the part of a tribunal where it made its decision blamelessly but pursuant to a process which, unknown to it, was compromised by third party fraud; not that I take it that fraud is being alleged against the Defendant in the present context.[260]

152 In the present instance, the Plaintiff submits that the Tribunal's exercise of jurisdiction was stultified by the Defendant's failure to give proper discovery. It said that this was in breach of an order made by the Tribunal to enable it to exercise its jurisdiction and to accord procedural fairness to the parties. The Plaintiff submits that it would appear to be sufficient that the Tribunal's jurisdiction was so stultified, regardless of whether the failure to give discovery was fraudulent (which the Plaintiff says need not be alleged in this case) or merely careless.

153 The Defendant says that the failure to provide the documents does not give rise to an error unless it would have affected the outcome.[261] In terms of the effect of the alleged failure to give proper discovery, the Plaintiff contends that had the Defendant's copies of the documents produced under subpoena been discovered, doubt would have been shed on the reliability of the 14 August 2013 report and the Defendant's expert could have been cross-examined on the inconsistency between his report and the previous report. It was also said that the expert and the Defendant's lay witness, Mrs Barbara Lepp, could have been cross-examined on the instructions that they had been given by the Defendant, and in particular, the limits of those instructions. Mrs Lepp, it is said, could have been cross-examined on the inconsistency between the condition of the premises described in the earlier LRM Global reports and her witness statement as cited by Senior Member Riegler.[262]

154 Thus, the Plaintiff submits that the evidence would have shown that the Defendant had, at least at the time of the Plaintiff's email, no intention to address the source of the mould infestation, being water ingress to the premises, and would likely have weighed against the conclusion reached by the Tribunal as to whether or not the Defendant landlord had a genuine intent to remediate the leased premises. This, it is said, would likely have impelled the Tribunal to a different conclusion on the question of repudiation. Such a conclusion, the Plaintiff says, would have tripled the damages awarded to the Plaintiff for loss of profit.

155 In my view, the issues raised with respect to the alleged failure in the Defendant's discovery are a matter to be addressed by the Tribunal when these proceedings are remitted to it, particularly having regard to the preceding reasons in this appeal as to the proper construction and operation of ss 52 and 54 of the Act, and on the question of repudiation in the context of those provisions and more generally.

156 For the preceding reasons, I am of the opinion that the Court should make orders setting aside the orders made by the Tribunal on 22 April 2014 and remitting the proceeding to the Tribunal for assessment of damages in accordance with these reasons.

157 The parties are to bring in orders to give effect to these reasons. I otherwise reserve the question of costs and will hear the parties on this issue.

[1] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273.

[2] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454.

[3] Amended Notice of Appeal (25 February 2015).

[4] Amended Notice of Appeal (25 February 2015).

[5] Transcript of Proceedings, Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273 (Victorian Civil and Administrative Tribunal, R187/2010, Judge Lacava, 31 October, 2-4, 7-11, 14, 16 November 2011) 49-57, 69-74, 535-8.

[6] Transcript of Proceedings, Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273 (Victorian Civil and Administrative Tribunal, R187/2010, Judge Lacava, 31 October, 2-4, 7-11, 14, 16 November 2011) 49-57, 69-74, 535-8.

[7] Amended Notice of Appeal (25 February 2015).

[8] Email from Luke Virgona and Martin John, Associates to Croft J, to P.J Bick QC, J.D.S Barber, V.J. Ryan, and Isakow Lawyers, representatives of the parties, 25 June 2015.

[9] Plaintiff's Supplementary Submission (20 July 2015); Supplementary Submissions of the Defendant (10 August 2015); Plaintiff's Supplementary Submission in Reply (24 August 2015).

[10] Commissioner of State Revenue v Frost (2011) 83 ATR 832 at 834 [5], referring to Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-6; Myers v Medical Practitioners Board (Vic) [2007] VSCA 163, [28].

[11] Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400; (2005) 145 LGERA 21 at 26 [15], referring to Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1; Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198.

[12] (2011) 83 ATR 832 at 833-4 [3].

[13] Commissioner of State Revenue v STIC (Australia) Pty Ltd [2010] VSC 608; (2010) 81 ATR 682 at 687 [10].

[14] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331; Al-Hakim v Monash University (Unreported, Victorian Supreme Court of Appeal, 28 March 2003); Myers v Medical Practitioners Board (Vic) [2007] VSCA 163.

[15] See Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 475.

[16] Osland v Secretary to the Department of Justice [2010] HCA 24; (2010) 241 CLR 320 at 333 [21].

[17] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 475; Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335.

[18] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-6; Commissioner of State Revenue v Challenger Property Nominees Pty Ltd [2006] VSC 203; (2006) 63 ATR 65 at 69 [20], at 77 [65].

[20] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575, 597. Cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 348 [74].

[21] (Unreported, Supreme Court of Victoria, Ashley J, 21 December 1994) at 13.

[25] Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442; (2005) 23 VAR 460 at 470 [59].

[26] [1990] HCA 33; (1990) 170 CLR 321 at 356 (emphasis in original), referred to with approval by Osborn J in Lucas v Transport Accident Commission [2003] VSC 97, [10].

[27] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77.

[29] [1995] VicRp 70; [1995] 2 VR 508 at 520 (emphasis in original).

[32] [1995] VicRp 70; [1995] 2 VR 508 at 520. See also Tisdall v Webber [2011] FCAFC 76; (2011) 193 FCR 260 at 270-1 [31]-[32], at 296 [126].

[33] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [8].

[34] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [9], [11].

[35] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [28].

[36] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [29].

[37] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [31].

[38] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [40]-[43], [46] [148].

[39] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [47], [190], [148]. See also [135].

[40] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [58].

[41] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [67], [68].

[42] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [68], [71]-[72].

[43] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [74].

[44] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [85], [88].

[45] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [95].

[46] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [108], [110], [115].

[47] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [112], [118], [142], [204].

[48] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [112], [219], [257].

[49] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [146].

[50] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [184], [204].

[51] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [188], [204].

[52] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [324], [327].

[53] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [191], [301], [310].

[54] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [205], [284].

[55] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [210].

[56] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [215].

[57] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [211], [215], [222], [310], [334].

[58] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [219].

[59] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [95], [310]-[313].

[60] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [311].

[61] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [312]-[313].

[62] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, Order 17.

[63] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454, [64]. See also Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273, [246].

[64] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454, [65].

[65] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454, [166].

[66] Points of Defence to Applicant's Further Amended Points of Claim (30 July 2012) (Exhibit BS-2 to the Affidavit of Bob Spaleta sworn 29 July 2014) [8], [9].

[67] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2012] VCAT 1442.

[69] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454, [64].

[70] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454, [18].

[71] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454, [79].

[72] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454, [79]-[80].

[73] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454, [92].

[74] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454, [91].

[75] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454, [93].

[76] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454, [93].

[77] See Transcript of Proceedings, Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454 (Victorian Civil and Administrative Tribunal, R103/2012, Senior Member Riegler, 12-13 March, 20-1 May, 9-11 October 2013) 137-8.

[78] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454, [21].

[79] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454, [22].

[80] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454, [94].

[81] Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454, [96].

[82] Plaintiff's Outline Submission (7 May 2015) [41].

[83] Plaintiff's Outline Submission (7 May 2015) [42].

[84] Plaintiff's Outline Submission (7 May 2015) [43].

[88] [2006] VSC 444; (2006) 25 VAR 402 at 419 [42] (citations omitted and emphasis added).

[89] Outline of Submissions of the Defendant (14 January 2015) [10].

[90] Outline of Submissions of the Defendant (14 January 2015) [10]-[11].

[91] Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422 at 434 [41]; Transport Accident Commission v Bausch [1998] 4 VR 249 at 263; Australian Trade Commission v F & F Asia Pty Ltd (1996) 69 FCR 252 at 266.

[92] Transport Accident Commission v Bausch [1998] 4 VR 249 at 263; Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422 at 434 [41].

[94] XYZ v State Trustees Ltd (2006) VAR 407 at 419 [43].

[95] Outline of Submissions of the Defendant (14 January 2015) [16].

[97] Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at 118 [88] (citations omitted).

[98] [2007] VSC 337; (2007) 17 VR 100 at 119 [89] (citations omitted).

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