Plaintiff v First Defendant

Supreme Court of Victoria|2012-12-14|Before: SIFRIS J

CONTRACT - Formation of contract - Whether contract executed by both parties - Whether parties intended to create legal relations - Whether contract was to be held in escrow pending approval of investors of vendor.

CONTRACT - Whether sole director of vendor had authority to execute the contract - Knowledge of purchaser of restrictions on authority - Corporations Act 2001 (Cth) and .

CONTRACT - Whether the parties intended to abandon the contract.

CONTRACT - Whether lease terms were vague and uncertain - effect on contract.

MISLEADING AND DECEPTIVE CONDUCT - Whether representation made by vendor that it would procure a lease from the landlord - Reliance on representation.

1 The Crown Hotel is located at 273 Main Street, Lilydale. It has 68 electronic gaming machines. It has other facilities including a liquor licence. By all accounts it is a profitable venue.

2 The Crown Hotel ("the Business") is owned by Hilldove Pty Ltd ("Hilldove"). The majority of the share capital in Hilldove is and was at all relevant times owned by Blackwood Capital Partners Fund 1 Pty Ltd as trustee for BCP Fund 1 and Blackwood Capital Partners Fund 1A as trustee for BCP Fund 1A ("the Trust"). The Trust has a number of investors. Benjamin Patrick Niall ("Niall") is the sole director of Hilldove.

3 The freehold situated at 273 Main Street, Lilydale is owned by Terrabridge Pty Ltd ("Terrabridge"). Niall is also the sole director of Terrabridge.

4 John David Nicholson ("Nicholson") is a business broker. He has substantial experience in gaming venues and is always on the lookout for new venues to acquire on behalf of others.

5 Nicholson alleges that he purchased the Crown Hotel from Hilldove. He alleges that a Heads of Agreement ("the Agreement") signed by him and Niall on behalf of Hilldove on 15 December 2011 is binding.

6 Hilldove denies that there is a binding contract. It contends that although each party separately signed the Agreement, a binding contract was not to take effect until Niall had obtained the approval of the investors in the Trust. Until such time, the Agreement was to remain in the custody of Cropley Commercial Pty Ltd ("Cropley Commercial"), the agent appointed by Hilldove to sell the Business, although there is some dispute about Cropley Commercial's authority. Stephen Alexander Cropley ("Cropley") is a director of Cropley Commercial and conducted the relevant negotiations between Hilldove and Nicholson.

7 Other defences are also raised by Hilldove. On 7 February 2012, Hilldove sold the Business to David John Tomsic ("Tomsic"). It is this contract that Hilldove seeks to perform. Initially, Nicholson sought specific performance of the Agreement. However, during the course of final submissions he indicated that he did not press this form of relief.

8 Hilldove joined Cropley Commercial and Cropley as third parties. Hilldove alleged that if the Agreement is enforceable or Nicholson succeeded in his alternative claim for damages, Cropley Commercial and Cropley would be liable to Hilldove because they acted contrary to instructions given to them by Niall on behalf of Hilldove.

9 Cropley Commercial and Cropley deny that they acted contrary to instructions. Cropley Commercial made a counterclaim against Hilldove for its commission. After completion of the evidence, but before final submissions, the third party proceedings were resolved.

10 The first issue is whether there is a concluded contract between Hilldove and Nicholson. Hilldove says that Cropley Commercial should have held the signed Agreement in escrow until Niall had obtained approval from the investors in the Trust and that unless and until such approval was obtained, there was no intention to create any binding contract and therefore none was created. Nicholson says that he was not aware of these matters and that after he signed the Agreement he received from Cropley later that day a copy of the Agreement executed by Niall. Hilldove responds by saying that Nicholson was indeed aware that approval of the investors was required for the contract to be binding ("the Binding Contract Issue").

11 The second and third issues proceed on the basis that there is a valid and binding Agreement.

12 The second issue relates to the contention by Hilldove that the Agreement has been abandoned. Hilldove points to the conduct of the parties and in particular the conduct of Nicholson following the execution of the Agreement in, amongst other things, not paying the deposit or taking further steps under the Agreement.

13 The third issue raised by Hilldove as against Nicholson relates to the terms of a proposed lease referred to in the Agreement. The Agreement contemplated a 10 x 10 x 10 x 10 lease at a rental of $680,000 per annum with market reviews. Hilldove contends that first, Terrabridge as landlord is not a party to the Agreement and, secondly, that the terms of the Agreement so far as it relates to the proposed lease are vague and uncertain. Nicholson contends that, to the extent that any term is not sufficiently precise, or is absent, this can be cured by the implication of various terms. A related issue pleaded by Nicholson, but not adequately dealt with in submissions, is that there was an implied term of the Agreement that Hilldove could and would procure a lease on the agreed terms from Terrabridge. It is alleged that such term is necessary in order to give business efficacy to the Agreement.

14 The fourth issue relates to the proposed lease. Nicholson claims in the alternative that Hilldove represented that it could and would procure a lease from Terrabridge on the agreed terms ("the Lease Representation"). Hilldove denies any such representation.

15 During the latter part of 2010, the investors in the Trust decided to sell all of its assets. Both the Business and the freehold of the Crown Hotel were on the market. The preferred position of the investors was to dispose of both. Accordingly, Hilldove, Terrabridge and Niall, as sole director of both, went into sale mode.

16 Nicholson had been interested in buying the Crown Hotel since at least 2009. As a broker, Nicholson was always on the lookout for such acquisitions. He would then usually refer any proposed acquisition to the Dominion Hotel Group Pty Ltd ("Dominion"). He gave evidence that Dominion would always have first choice.

17 In August 2010 Nicholson expressed interest in the Crown Hotel, and two other hotels, to TJ Board & Sons Pty Ltd ("TJ Board"), the agent that was authorised to sell the Crown Hotel at that time. Proposed parameters of the sale were exchanged and Nicholson made an offer for the three hotels on 30 September 2010.

18 On 5 November 2010 a heads of agreement for the sale of the Crown Hotel and one of the other hotels was entered into between Dominion (or its nominee) and Hilldove. The agreement was executed by Niall. Due diligence then began.

19 As at 18 January 2011 the due diligence was still on-going and Nicholson was having trouble obtaining the information needed for it to proceed. On that day, Nicholson emailed Niall requesting the information and asking for it to be sent through before they next met. He suggested several dates in early February 2011 for a meeting. Nicholson initially could not recall this meeting taking place (believing his only meeting with TJ Board to have been held in late 2010), but he did not disagree with the suggestion that a meeting did occur in early March 2011. Indeed he later accepted that a meeting was held in March 2011 with persons attending from TJ Board.

20 Nicholson's evidence on the precise date and number of meetings held in relation to his first attempt to buy the Crown Hotel was confusing and unclear. However, whatever the precise date of the early 2011 meeting, Nicholson accepted that a number of people were in attendance including a person "overseeing" Niall. This person was introduced to Nicholson as being a representative of one of the investors behind Hilldove.

21 The meeting did not proceed well. There was significant disagreement between the parties as to the financial position of the hotels and the proposed sale price. Niall's evidence was that he told Nicholson that he would not be able to recommend the proposed purchase price to his investors. Nicholson does not recall this being said.

22 Nicholson made a final offer for the two hotels on 23 March 2011. This offer was rejected by Niall and the matter did not proceed further. At this time TJ Board was the authorised agent of Hilldove.

The lead-up to Nicholson's 2011 offer for the Crown Hotel

23 Cropley obtained an authority from Niall to sell the Crown Hotel on 30 March 2011 ("the March Authority"). Though Niall denies signing the final page of the March Authority, he accepts that he signed and initialled other pages of the document and that he would have signed the final page had it been presented to him. Niall's evidence in this regard and in many other respects was unconvincing. Given the evidence of Cropley, the document itself and Niall's admissions, I accept that, so far as it remains relevant, the March Authority was executed by Niall and Cropley on 30 March 2011.

24 According to Nicholson, the next dealing in relation to the Crown Hotel was a meeting with Niall and Cropley in August 2011. Niall could not remember this meeting and denied that he met with Nicholson at any time between June and December 2011. It was Niall's evidence that information was exchanged between the parties during August 2011 but that no meeting took place. Nicholson alleges that it was at this meeting that Niall represented to him, among other things, that Cropley was Hilldove's agent.

25 The parties dispute the precise number and dates of these 2011 meetings. However, although these discussions were inconclusive Nicholson remained keen on purchasing the Crown Hotel.

26 Nothing further of any relevance happened until December 2011. On 12 December 2011, discussions took place between Cropley and Niall and Cropley and Nicholson regarding the Crown Hotel. There is a dispute as to who initiated or revived these discussions. Not much turns on this point. Ultimately by 14 December 2011, Cropley and Niall agreed to meet on 15 December 2011 regarding the sale.

27 The events of December 2011 and in particular 15 December 2011, involved Nicholson, Cropley and Niall. There is much dispute as to what occurred, particularly on 15 December 2011. The version of Nicholson and Cropley differs to that of Niall.

28 There were no direct dealings between Nicholson and Niall at any relevant time. All relevant discussions and communication was between Cropley, on behalf of Hilldove, and Nicholson. It is these discussions and communication that are most relevant.

29 Nicholson received a draft heads of agreement for the Crown on 12 December 2011. He requested a number of changes and Cropley had the changes made before emailing a revised document back to Nicholson on 14 December 2011. Nicholson then requested further amendments on the morning of 15 December 2011. These were made and the revised document was sent through to him on the same day.

30 The final form of the Agreement was signed by Nicholson on the morning of 15 December 2012. The purchaser was recorded as "John Nicholson or nominee".

31 After receipt of an email from Nicholson attaching a scanned copy of the signed document, Cropley rang Nicholson. Cropley said that he was coming over to Nicholson's office to collect three original signed copies of the Agreement. He, that is Cropley, said that he would then take them to Niall to be signed.

32 According to Nicholson, Cropley came around and collected the signed copies of the document. It all happened very quickly. Later that day, Cropley returned with the Agreement signed by both Nicholson and Niall, on behalf of Hilldove. Nicholson retained a copy. At this point, he believed that the deal was done.

34 Niall gave a different version of events. He said that he signed the Agreement well before 11.23 am on 15 December 2011. According to Niall, he signed it around 9.30 am at Brunetti's café in Carlton. At the time that he signed, no other party had signed the document. He did not keep a copy. He gave the copies he signed to Cropley. According to Niall, he told Cropley that he, that is Niall, required approval from investors for the deal and that Cropley should hold the document until Niall told him that the transaction had been approved. Niall gave evidence that, a few days later, he made a file note to such effect. The file note however is dated 14 December 2012 and was the subject of much cross-examination. I will return to the note later.

35 According to Cropley (and Nicholson), the meeting he had with Niall was later in the day on 15 December 2011 and only after Nicholson had signed the Agreement. Further, according to Cropley no restriction was put on him in relation to retaining the Agreement. Accordingly, he gave a copy to Nicholson in the afternoon. As far as Cropley and Nicholson were concerned, the deal was done when Nicholson received the fully executed document. There is much dispute about when the meeting between Cropley and Niall took place. Each party presented a most detailed and forensic analysis about why their evidence as to the time of the meeting should be accepted. This evidence was unsatisfactory in many respects and I will return to it later.

36 Later in the day, at about 4.00 pm, Niall rang Cropley and told him that he needed authority from his investors to enter into the transaction. Cropley says he was surprised but communicated this by telephone to Nicholson who was also surprised. They both considered the deal done but, in any event, waited for further news from Niall.

37 Earlier on the same day, at 11.34 am, Niall had sent the Agreement to Stuart Richardson ("Richardson"). There was no indication in the email that Niall had already signed the Agreement and told Cropley to retain it. In fact there is no reference to any meeting with Cropley that morning. The copy of the Agreement sent by Niall to Richardson had been signed by Nicholson and Nicholson (or his nominee) was named as the purchaser. It was sent to Niall by George Iliopulos of Cropley Commercial at 11.29 am. In sending the document to Richardson, Niall noted, amongst other things:

Please get the appropriate people to approve and I will go ahead and sign it off.

I will ensure that the purchasing entity is the one that holds all of dominions [sic] assets.

38 The investors did not approve the transaction. In the next 7 weeks there was, as might be expected, communication and attempted communication between the various parties. The discussions are only relevant to the extent that they involve admissions or conduct consistent with a version of events given by a party or relate to the abandonment issue.

39 Cropley gave evidence that on 16 December 2011 he attempted to contact Niall who had become too busy to talk. Cropley was very concerned to speak with Niall, he says to find out whether or not Niall had received approval for the sale. Cropley continued trying to contact Niall on 20, 21 and 22 December 2011, and 2, 3 and 4 January 2012. Cropley's evidence was that during this time he was trying to contact Niall as he was concerned that Niall had an issue with the sale and Cropley wanted to see what he could do to fix it.

40 According to Niall, in the last weeks of December 2011 he was trying, unsuccessfully, to convince Richardson to get the deal approved. Niall alleges that he spoke with Cropley on 23 December 2011 and told Cropley that the deal was not going to be approved. Niall's evidence is that Cropley responded to him by saying that the deal was "dead". Notwithstanding this, Niall continued to try and get the approval in January 2012. According to the phone records, there was no further telephone contact between Cropley and Niall between 4 January 2012 and 7 February 2012.

41 The Agreement required that the deposit be paid upon signing, and there was a term to the effect that time was of the essence. However, Nicholson did not pay the deposit until 7 February 2012. Nicholson's initial reason for not paying the deposit in December was that he had been in Queensland the week after signing the Agreement and only came back to Melbourne when the Christmas break began. However, phone records showed that Nicholson had returned to Melbourne on 19 December 2011, which gave him four business days in Melbourne to pay the deposit. Nicholson had no specific reason as to why the deposit was not paid during this time. When asked why the deposit was not paid in January, Nicholson said that he "just did not do it".

42 In January 2012 Tomsic became interested in buying the Crown Hotel. On 7 February 2012 Tomsic signed a heads of agreement for the sale, and paid the deposit on the same day. The sale to Tomsic did not go through Cropley Commercial. Tomsic gave evidence that after signing the heads of agreement he telephoned Cropley and told him that he had bought the Crown Hotel. Cropley denies meeting or talking to Tomsic until 14 February 2012. Cropley's evidence was that Niall told him that Hilldove had sold the Crown Hotel to someone else in late January or early February. According to the phone records, this call probably took place in the afternoon of 7 February 2012.

43 On the evening of 7 February 2012 Nicholson paid the deposit due under the Agreement. Nicholson's evidence was that nothing in particular had prompted him to pay the deposit and that the date was merely coincidental with Tomsic's signing of a heads of agreement to buy the Crown Hotel. The phone records show telephone calls between Niall and Cropley, and Cropley and Nicholson on 7 February 2012 prior to Nicholson paying the deposit. Cropley conceded that it is possible that he told Nicholson during one of those calls that Hilldove had sold the Crown Hotel to someone else. Nicholson was equivocal in relation to whether he knew that Tomsic had signed a heads of agreement, but maintained that this had nothing to do with him paying the deposit.

44 After 7 February 2012 relations between the parties continued to deteriorate. Niall requested that Cropley return the original Agreement to him. During February and March 2012, correspondence took place between the legal advisers representing the various parties.

45 The defendants placed much reliance on events and conduct that took place after 15 December 2011 in order to demonstrate that there was no binding Agreement or, alternatively, that if the Agreement was binding it had been abandoned.

46 The brief background identified in this section provides a chronological snapshot of the events as they unfolded. However, it does not deal with all of the relevant matters. These matters are dealt with later in the judgment where appropriate.

D. The First Issue - The Binding Contract Issue

47 The first issue is whether the parties, by their external manifestations (essentially written communications and discussions), reached a binding agreement and intended to create legal relations. The conduct of the parties and their agents needs to be considered very carefully in order to determine this issue.

48 In my opinion, there is a binding agreement between the parties and the parties did intend to create legal relations that were immediately binding on them.

49 It is of course no longer necessary to look at the matter of offer and acceptance in sequential or technical terms. The question is whether Nicholson and Hilldove each agreed, and communicated such agreement, to the same terms and conditions. In my opinion, it is more likely than not that they did.

50 Before dealing with the evidence and submissions in some detail, I should say that the evidence in this case in general was entirely unsatisfactory and in certain respects stretched credulity to the limit. The consequence is that it is harder to make findings of fact when all of the main witnesses were in many respects unconvincing and in some respects untruthful.

51 After receiving and signing the final form of the Agreement on the morning of 15 December 2011, Nicholson had his personal assistant - Rebekah Mae ("Mae") - scan and email the signed copy to Cropley Commercial at 11.13 am. The purchaser on that document was recorded as John Nicholson and/or nominee. There is some dispute about the time it was sent but nothing turns on this. The document expressed the terms upon which Nicholson was prepared to acquire the Crown Hotel.

52 After Mae sent the signed Agreement to Cropley Commercial, Cropley rang Nicholson, shortly after 11.23 am, and arranged to pop into Nicholson's office to collect three signed copies of the Agreement. Cropley came around, collected the originals and said he was on his way to meet Niall.

53 The Agreement was, in the meantime, sent to Hilldove. Iliopulos sent a copy to Niall at 11.29 am[1] and Niall sent it to Richardson at 11.34 am. The email sent by Iliopulos to Niall referred to " ... the signed offer for the Crown at Lilydale". The email from Niall to Richardson is important and it is set out in full:

Stuart,

Here is the offer for Lilydale Leasehold.

It is $6m as discussed, not subject to DD or anything, it is straight to contracts.

Rental is $680k, and at 8% this would result in property valuation of $8.5m; total $14.5m.

I am very stressed about Wilkie and labour now has numbers to pass the legislation on mandatory precommittment.

Please get the appropriate people to approve and I will go ahead and sign it off.

I will ensure that the purchasing entity is the one that holds all of dominions [sic] assets.

Regards

Ben.

54 At some time shortly thereafter (as I find and will endeavour to demonstrate), Niall executed the Agreement being the document already signed by Nicholson.

55 The communication and discussions between Cropley Commercial (whether by Cropley or Iliopulos) and Niall and between Niall and Richardson are only relevant to the extent that they affect the intention of the parties or power to conclude a binding bargain (or any restrictions on authority) and were known (or arguably ought to have been known) to Nicholson. What is important is what was communicated back to Nicholson.

56 Sometime in the afternoon before 4.00 pm, Nicholson was given the original signed Agreement. It was signed by both parties.

57 Having received the Agreement signed by both parties, Nicholson, with some justification, thought there was a deal. He was not privy to or aware of any relevant discussions between Cropley and Niall.

58 I accept with some reservation the evidence of Nicholson, Cropley and Iliopulos. It is, in my opinion, more likely than not that the events unfolded as referred to above and as further referred to in more detail below.

59 However, it is necessary to deal with a number of contentions and factual matters referred to by Hilldove in support of its submission that there was no intention to create legal relations because when Niall signed the document at about 9.30 am on the morning of 15 December 2011, Nicholson had not signed; the change of purchaser had not taken place; and, in any event, Niall gave Cropley specific instructions to retain the document pending approval from the investors. Much reliance was placed by Hilldove on this instruction and in final submissions it was contended that the time of signing was of less relevance because whenever the document was signed, the specific instruction was given.

60 I am satisfied that Niall signed the Agreement. Cropley says he did and Niall could not positively say that he did not. His evidence was to the effect that he did not take specific notice of the identity of the purchaser on the agreement that he did sign and he could not and did not dispute that it was Nicholson and/or nominee. Taking into account the evidence of Cropley and the further matters referred to below, I find that it is more probable than not that Niall signed the Agreement being the very same document signed by Nicholson.

61 The next question of some relevance is when the Agreement was signed. The evidence establishes that Nicholson only made the change reflecting himself or nominee as purchaser (and not Dominion) at or about 10.14 am on 15 December 2011 and in any event after the time that Niall says he signed the Agreement. If this is so and Niall did sign the Agreement at about 9.30 am at Brunetti's, the purchaser would, as pointed out, still be recorded as Dominion and not Nicholson. The approximate time is also relevant to another issue. Niall says that at the time he signed the Agreement, Nicholson had not signed and that his was the only signature on the page. Nicholson agrees that he had not signed the Agreement at or before 9.30 am.

62 If Niall is believed about the time of the meeting with Cropley, that is about 9.30 am, he signed a different Heads of Agreement to Nicholson because Nicholson only made the change to reflect himself or nominee as purchaser at about 10.14 am. Further, the document handed to Nicholson by Cropley in the afternoon (being the document signed by Niall) could not have had Nicholson's signature on it as Cropley and Nicholson agree that Nicholson only signed the Agreement later in the morning and after Niall says he signed the document.

63 Although much of the evidence given was unsatisfactory, reconstructed and speculative, I prefer the evidence of Nicholson, Cropley and Iliopulos in relation to this aspect and find that, for the reasons set out below, it is more probable than not that Niall signed the Agreement later that day, at or about 12.20 pm, and that the document he signed was the Agreement that had already been signed by Nicholson.

64 It is more likely than not that the meeting between Niall and Cropley took place at a time shortly after midday, as opposed to earlier in the day at around 9.30 am. The reasons are set out hereunder.

65 In relation to the suggested 9.30 am meeting, there is no evidence of any meeting at such a time apart from the oral evidence of Niall. There is no witness that confirms the suggested meeting and the time is not referred to in any way in any document. The telephone records place Niall in Carlton but his office is in Carlton. Conversely, Cropley's telephone records (so far as they are relevant, exhaustive and probative) do not support his presence in Carlton at this time. Finally, there are insufficient facts to form the basis of a reasonable inference that the meeting took place at or about 9.30 am. In fact, such facts tend to establish that a meeting was held later in the day. Consequently, it is the oral evidence of Niall that needs to be accepted as to the time of the meeting.

66 Before dealing with Niall's evidence, I propose to deal with the evidence in support of the later meeting. Clearly, some aspects of the evidence are problematic, particularly in relation to the time at which various things allegedly happened during the course of the morning. This reduces the cogency of the evidence as a whole on this point. However, despite such problems, on the evidence, including inferences that may fairly be drawn, it is more likely than not that the meeting took place shortly after midday. Some tolerance in relation to precise times must be accorded to the parties. They did not have any reason or mechanism - apart from the omnipresent telephone records - to be precise and I suspect there was a degree of reconstruction rather than recall.

67 I accept and find that Cropley visited Nicholson's office at about 11.45 am and that during this very short visit Nicholson signed a number of copies of the Agreement. The evidence confirms that Nicholson's office had sent the final version signed by Nicholson to Cropley at 11.23 am. Cropley headed out shortly thereafter and gave evidence that the trip would probably take less than 15 minutes. Iliopulos, the sales manager at Cropley Commercial, confirms that after receipt of the email from Nicholson attaching the signed Agreement, he forwarded it on to Niall and Cropley left the office shortly thereafter. There is no specific evidence that contradicts this finding. Taken together, the evidence of Nicholson, Cropley and Iliopulos support the finding that Nicholson signed the Agreement at or about 11.45 am on 15 December 2011. I do not accept the suggestion of improbability based on traffic conditions and the like, and the mobile phone records do not detract from this finding.

68 I accept and find further that Cropley left Nicholson's office in Flinders Lane a short time thereafter, say about midday and drove to Brunetti's in Carlton. He probably arrived some time shortly after 12.11 pm and left a short time after 12.35 pm. His mobile telephone records place him in Carlton at 12.35 pm. The records record calls from his mobile phone outside of Carlton at 12.11 pm (Melbourne), 12.38 pm and 12.40 pm (Melbourne). During part of this period it appears likely that he was in Carlton albeit for a shorter period than that suggested by him and at a time later than that pleaded by him (11.45 am). The subsequent mobile phone calls from outside Carlton provide some confirmation that he was not in Carlton at 12.40 pm for lunch, as was suggested. Accordingly, it is more probable than not that the meeting took place at Brunetti's at or about 12.20 pm.

69 Senior Counsel for Hilldove submitted forcefully that this finding was not open on the evidence, for a number of reasons, and that I should accept that the meeting took place at 9.30 am.

70 First, it was suggested, not without some justification, that the suggested time of about 12.20 was not consistent with the evidence of Nicholson and Cropley. On their respective evidence, Cropley could not have been in Carlton at or about 12.20. Cropley said the meeting was at about 11.45 am. As demonstrated, this was not possible and his mobile phone records suggest otherwise. It was submitted that his evidence should be rejected on this point, if not entirely. Nicholson on the other hand, swore that Cropley came to see him at about midday or even later (about an hour after he had sent back the Nicholson Offer, that is 12.23) so that it was unlikely that he was in Carlton at 12.20. Although I accept that this evidence was not entirely accurate, I am not prepared to conclude anything more than that they were mistaken and perhaps understandably inaccurate. However the degree of inaccuracy is not such that their evidence should be rejected or the findings not warranted.

71 Secondly, it was submitted that I should reject Cropley's evidence on this point and more generally because of the failure to discover his car phone records in circumstances where they had clearly been examined and notes and markings made on them. This does not reflect well on Cropley but I am not prepared to reject his evidence on account of such failure.

72 Finally on this aspect, I do not accept Niall's uncorroborated oral evidence as to the time of the meeting. It was entirely unconvincing. It is most unlikely that, in the circumstances, Niall on behalf of Hilldove as vendor would execute the Agreement first.

73 Niall says he made a note of the meeting a few days later. The note does not record the time of the meeting. Further, as pointed out, the note is dated "14/12/12". It is more likely than not that the note was made by Niall in 2012 in an endeavour to corroborate his evidence. Further, Niall dated the note 14 December 2012 but says that he actually prepared it a few days later - being 16 or 17 December - in Barwon Heads where he was visiting his parents with his children. He said that his children were on school holidays. He told me that in casting his mind back he mistakenly recorded the events as having taken place on 14 December. In addition to the wrong day and the wrong year - both simple matters within easy recollection, at the alleged time the note was written - it is unlikely that Niall was at Barwon Heads. His mobile phone records - whilst not definitive - suggest otherwise.

74 Further, there was evidence to the effect that school holidays for public schools in Victoria commenced on Friday 22 December 2011. To counter this evidence, Niall was recalled and gave evidence that he took his children out of school early and before the official start of the holidays. This change in his evidence does not reflect well upon Niall. It confirms that he was not a witness of truth. His evidence should not be accepted unless supported by other reliable evidence.

75 Accordingly, I find that it is more likely than not that the Agreement was signed by both parties at or about 12.20 pm on 15 December 2011.

76 The next matter is whether Niall specifically instructed Cropley not to hand the Agreement over to Nicholson ("the Instruction") and more importantly whether that was communicated to or otherwise known to Nicholson.

77 Niall says he gave the Instruction. Cropley says no such Instruction was given. Nicholson says he was not told of any such Instruction. Ultimately it is the word of Niall against the word of Cropley. Of course, even if Niall did give the Instruction there is the remaining matter as to whether it was communicated to Nicholson. These are not easy factual matters to resolve.

78 I find that if there was such an Instruction, it was not communicated to Nicholson and he was not aware of it at any time before he received the Agreement back from Cropley duly signed by Niall. I accept the evidence of Nicholson in this regard.

79 I find further that, in any event, no such Instruction in the form and manner suggested was given by Niall to Cropley at the time Niall signed the Nicholson Offer.

80 Finally, in the event that contrary to my finding the Instruction was given, I find that in addition to it not being communicated to Nicholson, there were no facts or circumstances that would suggest to Nicholson that Cropley's or Niall's authority to conclude an agreement was limited or subject to approval from investors. In fact the contrary is the position. In the circumstances, Nicholson was entitled to expect that Niall did not require further authority or approval. I will deal with actual and ostensible authority and related matters later in the judgment.

81 In my opinion, it is more likely than not that no such Instruction was given. There are a number of factors that inform this conclusion which is central to the entire case.

82 First, why would Niall, who is an experienced businessman, sign a document already signed, as I have found, by Nicholson, which on its face contains no restriction or qualification as to its enforceability or binding nature and leave the document with an agent that he, in any event, denies had any authority? The reason given, namely that he was going away, is entirely unconvincing and against the weight of the evidence. If he did go away, on his own version of events he was commuting between Melbourne and Barwon Heads in any event. He could simply have declined to sign until the approval of investors had been obtained if this was the case.

83 Secondly, if Niall had given the Instruction it would be a strange thing to repeat the Instruction later in the day during the 4.00 pm phone call, particularly after a lengthy discussion with Richardson. The more likely scenario is that Niall executed the Agreement - which he considered to be a good deal - and did not give any Instruction as he expected the deal to go through. After discussion with Richardson and when it became apparent that the investors were not happy he rang Cropley and told him for the first time that approval was required from investors.

84 Thirdly, if the Instruction was in fact given at the time that Niall signed the Agreement, why would Cropley not have told Nicholson? Why would he proceed as though no such instruction had been given? He is a most experienced agent in this particular sector of the industry and it is unlikely that he would simply ignore such an Instruction. He did not ignore the matter when he was told at about 4.00 pm that investor approval was required. He rang Nicholson. The same can be said for Nicholson if he was told.

85 Fourthly, I am not prepared to accept Niall's word unless it is corroborated by other cogent evidence including inferences that may fairly be drawn. As pointed out, I do not regard Niall as a witness of truth. I do not accept his evidence as to the time of the meeting on 15 December 2011 and, more relevantly and as pointed out, I do not accept his evidence in relation to the diary note.

86 Although it may be said that Nicholson was not entirely a witness of truth, we are here concerned with a conversation between Niall and Cropley. Whilst there were unsatisfactory aspects of Cropley's evidence, I prefer his evidence to Niall's in relation to whether any Instruction was given. Cropley said, and I accept, that no such Instruction was given.

III. The conduct of the parties on and after 15 December 2011

87 Despite what I consider to be weighty factors telling against any such Instruction, Senior Counsel for the defendants invited me to conclude that the conduct of Nicholson and Cropley on and after 15 December 2011 was consistent with their belief and understanding (as was the fact he submitted) that there was no binding Agreement and that this was because from such conduct a reasonable inference could be drawn to the effect that the Instruction was given and there was no intention to create legal relations. Almost the same conduct was relied upon to contend in the alternative that if the Agreement was binding it was effectively abandoned by the parties. It is convenient to deal with the suggested conduct at this stage.

88 The relevant conduct said to evidence an acceptance by Nicholson (and Cropley) that there was no binding Agreement, essentially because of the Instruction, was said to comprise the following matters -

The Eden Memorandum;
The timing of payment of the deposit;
Nicholson's failure to take any steps to perform or implement the Heads of Agreement;
Nicholson seeking out further opportunities; and
The notation on the Agency Agreement.

89 I do not accept that such conduct, whether individually or collectively had the effect contended for. The conduct, although strange in some respects, does not undermine or diminish the effectiveness or binding nature of the Agreement.

90 It was contended that a memorandum prepared in January 2012 (and expressed to be dated 15 January 2012) ("the Eden Memorandum"), and approved by Nicholson, referred to the acquisition of the Crown Hotel as a future event and not something that had already taken place. This, it was submitted, was consistent with the Instruction and the requirement that investors approve the transaction before the Agreement became binding.

91 The purpose of the Eden Memorandum was to "seek investment to facilitate the acquisition of a number of hotels" (para 1.1). Further in para 1.1 it is stated that "Eden Hotels has entered agreements to acquire ... the Crown in Lilydale". In paragraph 3 of the Eden Memorandum, the words "proposed to purchases (sic)" are used and in describing the Crown Hotel under the section Hotel Overview the words "will be acquired are used".

92 In cross-examination, Nicholson conceded that he had read the Eden Memorandum and was satisfied with its accuracy. He said that he had some input into the preparation of the document. Nicholson denied that the relevant wording indicated that there was no binding agreement. Nicholson gave further evidence that the reference to "will be acquired" was a reference to settlement taking place. To some extent the line of questions proceeded without any reference to that part of paragraph 1.1 of the Eden Memorandum where the reference is to the present. This is not meant as a criticism but rather that the Eden Memorandum itself is consistent with what Nicholson understood the position to be.

93 I accept Nicholson's evidence. In my opinion, the language used in the Eden Memorandum is not inconsistent with the parties having entered into a binding Agreement. The words "proposed" and "will" must be considered in the context of the earlier words "has entered into" and the structure of the transaction, namely the contemplated "formal Contract" and the various conditions attaching to the transaction which were required to be complied with or satisfied before settlement.

94 It seems inconceivable that Nicholson did not pay the deposit of $50,000 on 15 December 2011 as required by the Agreement. He had sought to acquire the Crown Hotel for some time and regarded the terms as favourable. Presumably therefore he wished to comply with the Agreement. But he did not. He gave evidence that he does not always pay the deposit on the day required by an agreement, which is usually the day of signing. He conceded that there was some risk in not paying the deposit and agreed that he could offer no plausible explanation for not immediately paying the deposit. However, he emphatically denied that he did not pay the deposit because he was waiting for Niall to confirm that the transaction had been approved.

95 The deposit was paid on the night of 7 February 2012, the same day that heads of agreement were signed between Hilldove and Tomsic. Nicholson said that this was purely a coincidence. I do not believe his evidence in this regard. It is more likely than not that he paid the deposit because during the course of that day he became aware of the Tomsic heads of agreement.[2] This does not, however, mean that late payment of the deposit constitutes an acknowledgment that there was no binding Agreement or that there was necessarily a repudiation or abandonment of the Agreement. The effect of his evidence was that he was always aware that the deposit had to be paid but he did not get around to it and there was no urgency.

96 Although time was of the essence in relation to performance of the terms of the agreement and although Nicholson failed to comply with the term requiring payment of the deposit, and to this extent was in breach, the evidence does not go so far as to establish that he did not regard the Agreement as binding or that he did not intend to be bound by the Agreement. If this indeed was the case why would he pay the deposit? During the period 15 December 2011 and 7 February 2012, there was sufficient discussion and activity between Nicholson and Cropley (and to some extent Niall) consistent with a binding Agreement. They were waiting for the anticipated approval of the investors not as a condition precedent or requirement prior to entering into the Agreement but as a legally irrelevant formality or as a courtesy. Further, the Eden Memorandum, dated 15 January 2012, referred to the acquisition of the Crown Hotel and contemplated settlement thereof. For whatever reason, Nicholson did not push the matter or pay the deposit and was happy to wait.

97 I do not regard the failure to take any steps to perform or implement the Agreement in the context and specific circumstances of this case and the time of the year as some form of acknowledgment or admission that there was no binding agreement between the parties or as an intention to abandon the Agreement.

98 I do not regard the conduct of Nicholson in seeking further opportunities or acquisitions as constituting some form of acknowledgment or admission that there was no binding agreement between the parties or as an intention to abandon the Agreement. Nicholson gave evidence that he was in the business of seeking out opportunities and was always looking at hotels and figures. During December 2011 and January 2012 this was not as a substitute for Crown but as part of his normal business operations. It is not surprising that he continued to look for opportunities and I accept his evidence in this regard.

99 Cropley gave evidence that the March Authority ("the Agency Agreement") (although Niall denies signing the last page) was extended on 14 November 2011. Niall denies having signed and initialled the agency agreement to authorise an extension. The Agency Agreement related to a number of venues including Crown.[3]

100 Cropley gave evidence that at the same time that the Agreement was executed by Niall, he drew a line through the Agency Agreement and inserted the following words -

101 It was contended by Hilldove that these words constituted some form of acknowledgment or admission that there was no binding agreement between the parties at the time the Agreement was executed by Niall. It was contended that the words were consistent with Nicholson not having signed the Agreement at that stage. On Cropley's version the Agreement was signed by both parties when he wrote the words.

102 Cropley gave evidence that he was prepared to forego commission on the sale of a hotel in Gisborne if the various authorities approved the Crown Hotel deal, notwithstanding the fact that commission on Crown was payable even without such approval. Cropley said that, whatever the legal position, if such approval was not forthcoming he would probably not chase any commission in respect of the sale of Crown. He said he was not really thinking at the time and that this was the fair thing to do.

103 In my opinion, the words used or inserted by Cropley are not necessarily inconsistent with the parties having entered into a binding Agreement. Further, whatever and whenever this was done it has no effect on the agreement between Hilldove and Nicholson.

104 In all of the circumstances and upon a consideration of all of the relevant evidence I am not persuaded or satisfied that the conduct referred to is so clear and unequivocal so as to amount to an acknowledgment or admission that the Agreement was not binding or if binding was effectively abandoned. Further, I consider that it is more likely than not that the Instruction was not given to Cropley by Niall at or before Niall signed the Agreement.

105 Accordingly, the Agreement is binding unless Niall had no authority - whether actual or ostensible - to enter into the Agreement.

106 Hilldove submitted further that apart from the Instruction, Niall did not have authority (whether express, implied or ostensible) to conclude (on behalf of Hilldove) a binding contract with Nicholson. It was not suggested that he did not have the power or ability to execute documents on behalf of Hilldove. Rather, in line with the Instruction, it was contended that he required specific authorisation. The submission is rejected.

107 On 15 December 2011, Niall was the sole director of both Hilldove and Terrabridge. Nicholson who had dealt with Hilldove and Niall on and off since March 2010 was never informed otherwise. On 15 December 2011 Nicholson received a document signed by Niall on behalf of Hilldove from Cropley. Why should he have thought anything other than that Niall had the authority and any required approval to complete the deal? The current negotiations had been on foot for a few days. Further, Niall was the sole director of a company intending to dispose of all of its assets and he was actively involved and engaged in the process and in the day to day running of the Crown Hotel.

108 It is clear in my view and beyond doubt that Niall had ostensible or apparent authority to execute the Agreement on behalf of Hilldove. Nicholson thought, as he was entitled to, that Niall had such authority and Hilldove clearly engaged in the necessary holding out or representation that Niall had authority.[4] Further, and apart from the common law, in any event, pursuant to s 129 of the Corporations Act 2001 (Cth) ("the Act"), Nicholson was entitled to assume that Niall had been and remained a duly appointed director of Hilldove and had the authority to exercise the powers usually performed by a sole director.[5]

109 The critical relevant submission made by Hilldove was that, notwithstanding the above, Nicholson knew or suspected from past dealings and other more contemporaneous factors that Niall required approval. Section 128(4) of the Act precludes a party with such knowledge or suspicion from relying on the assumption referred to in s 129.

110 The factual basis of the submission was to the effect that in or about November 2010 and during the period of due diligence and negotiation associated with Nicholson's earlier offer, both Niall and Terry Board of TJ Board separately told Nicholson that any offer to purchase the Crown Hotel would need to be approved by the investors or/or unit holders[6].

111 Mr Board was not called and for the reasons set out earlier I am not prepared to accept the uncorroborated evidence of Niall. Having regard to all of the evidence and circumstances, there are no facts or reasonable inferences that suggest that Nicholson would have had any apprehension at all about the authority of Niall. A suggested rumour mill associated with Niall's resignation from BCP Private Equity in November 2010 does not change the position. Niall remained on as sole director of Hilldove. Further, the presence at a meeting in March 2011 of "another chap overseeing Niall" or "representing the interests of unit holders" is only of historical relevance and is an insufficient basis to suggest that on 15 December 2011, and after discussion and negotiations, Niall did not have the necessary authority.

112 Finally, in relation to authority, it was submitted by Hilldove that Nicholson knew or ought to have known that Cropley Commercial and/or Cropley was acting beyond the scope of its/his authority.[7]

113 The particulars provided by Hilldove of such knowledge on the part of Nicholson are as follows -

Particulars

Nicholson's knowledge is to be inferred from the fact that:

he is an experienced purchaser of hotel businesses on behalf of others;
he has previously been told by each Niall and Board that any offer for the purchase of the Business would need to be approved by the Trustees;

approval for the sale of the Business was unlikely to have been given by the Trustees within hours of Nicholson having made an offer in writing;

he did not pay the deposit of $50,000 on signing the Niall Heads of Agreement;
he did not promptly prepare and file an application for the transfer of the liquor licence for approval and do all things reasonably necessary to seek the transfer of the liquor licence;
he did not pay to Hilldove interest on the deposit of $50,000 for the period 15 December 2011 to 6 February 2012; and
he did not send Hilldove written notice specifying the nature of the dispute or endeavour in good faith to resolve the dispute expeditiously through mediation.

114 It is not strictly necessary to deal with this aspect given my findings in relation to the Instruction and authority of Niall. However, in my opinion these matters, whether individually or collectively do not compel a conclusion that Nicholson was so aware. I accept his evidence that he was not and there was no reason to suggest that he should have been. Further, the particulars referred to in paragraphs D-G do not support the lack of authority issue. Paragraphs D and E have been dealt with elsewhere. Paragraphs F & G do not take the matter any further. Paragraph B is not entirely or sufficiently supported by the evidence and in any event occurred much earlier. Paragraph A may be accepted. However it works both ways and in this case I prefer the other way, namely that he regarded the sole director of the company he had been dealing with on and off for months as having the necessary authority - notwithstanding the structure of Hilldove and its associated entities and investors. For the same reason paragraph G is entirely unconvincing.

115 In my opinion, for the reasons given, the Agreement is binding, no Instruction was given by Niall that had the effect of delaying or suspending its operation and Niall had the necessary authority to execute the Agreement.

E. The Second Issue - Was the Agreement Abandoned?

116 So far as the abandonment issue is concerned, the question is whether the parties, by their conduct each evinced an intention, communicated to the other, not to be bound by the Agreement.[8] Did the parties regard the Agreement as being on foot or did they intend that it should not be further performed? The conduct relied on by Hilldove as indicating an intention on the part of both parties to abandon the Agreement is the same conduct referred to in paragraph 88 above. For the reasons given I do not consider such conduct to amount to an intention to abandon the Agreement.

117 Hilldove also contends that the Agreement is vague and uncertain in relation to the proposed terms of any lease. In particular, it is pleaded that the following terms are too vague and uncertain -

(d) There is no reference to insurance requirements;

(e) The identity of the tenant is not specified; and

(f) Generally, the terms "are otherwise insufficiently certain for the lease of commercial hotel premises involving liquor licensing and gaming machine licensing".

118 Nicholson contends that the matters referred to in paragraphs 117(a) - (e) are to be implied either from the Agreement or by "[t]he custom and practice of commercial leases". The matters referred to in paragraph 117(f) are said to require compliance as a matter of law.

119 As noted earlier, and of critical importance, is the fact that Terrabridge, as the registered proprietor and landlord, is not a party to the Agreement and has no obligation[9] to grant any lease, whether on the proposed terms or otherwise.

120 This issue must be considered in its proper context. The landlord, Terrabridge, is not a party to the Agreement and the issue is not whether there is an agreement for lease. Clearly there is not and none was intended and none has been pleaded.[10] Rather, the issue is how and the extent to which the proposed terms affect the parties and their relevance from a legal point of view. It should also be noted in this context and stressed that the Agreement was subject to the condition that within nine months, a lease agreement be entered into between Terrabridge and Nicholson or the nominated purchaser.

121 The starting point is the Agreement. After recording the sale and purchase of the Business, the Agreement sets out the following terms:

Lease Term: 10 x 10 x 10 x 10

Commencement Rental: $680,000

Rental Increase Increases: 3% annually

Market Review: At the end of each term

Bank Guarantees: The purchaser is to provide a Bank Guarantee equivalent to six months rent.

122 Under paragraph 1(d) of the Special Conditions, the following appears as a condition precedent to be satisfied with 9 months of the date of the Agreement -

(d) The registered proprietor of the freehold premises of the Hotel entering into a lease with the Purchaser on terms acceptable to the Purchaser.

123 Whether or not Special Condition 1(d) would be fulfilled would depend on negotiations between the purchaser and Terrabridge. It goes without saying that Terrabridge may not be prepared to grant a lease. As pointed out, there is no obligation binding on it to do so. None is pleaded and the evidence does not establish any such obligation. Further the terms of any lease may not have been acceptable to Nicholson or the nominated purchaser.

124 If the Agreement did not set out any proposed terms of lease, the sole question would be whether the condition precedent was met. Why should the identification of important terms make a difference? The terms provide a framework or reference for the purpose of negotiations with the landlord and no more. They are not as such binding or promissory as between the parties. Given the nature and extent of the lease, its duration and the contemplated negotiations it is fanciful to suggest that there was any obligation at all on Hilldove to ensure the lease was granted. There is no obligation promissory in nature (and whether express or implied) on Hilldove to do anything. The proposed terms merely identify the basis (as between the parties) on which Nicholson was prepared to acquire the Business. In my opinion, the terms go no further than this. They may provide some barometer for assessing issues such as good faith, but no more. A proper reading of the Agreement clearly suggests that Hilldove was not assuming any responsibility for the occurrence of a future event. There is no express promise in relation to the assumption of such contractual responsibility.

125 So far as the alleged implied term is concerned, namely that Hilldove would and could procure a lease of the premises on the agreed terms, I am not persuaded or satisfied that such a term is necessary to give business efficacy to the Agreement. It certainly does not go without saying and is not entirely consistent with Special Condition 1(d) and the lease provisions of the LIV General Conditions which are contemplated by the Agreement. The term is not necessary to enable the Agreement to work.[11] It is not surprising that the matter was not pressed.

126 It follows that in my opinion, whether the proposed terms are vague and uncertain is not entirely to the point. Even assuming the full extent of gap filling mechanisms largely through implied terms, the necessary promise is lacking.

127 Finally, if, contrary to my view, there was an implied term or promise it was no more than an obligation on Hilldove to use its best endeavours to assist in bringing about the desired lease on terms that would include those set out in the Agreement. This is a different kind of promissory obligation. This obligation has not been pleaded and is not presently relevant.

128 Nicholson claims further that Hilldove represented to him "that it would and could procure a lease of the premises on the agreed terms from [Terrabridge] to [Nicholson]". It is pleaded that this representation was partly in writing (the Agreement) and partly by conduct (Niall signing the Agreement in circumstances where he was the sole director of Hilldove and Terrabridge).

129 It is pleaded that the representation was misleading or deceptive or likely to mislead or deceive in breach of s 18 of Schedule 2 of the Competition and Consumer Act 2011 (Cth) ("the CCA"). No particulars are given.

130 It is further pleaded that Niall was involved in the contravention within the meaning of s 75B of the CCA.

131 Finally, Nicholson seeks orders under s 80 of the CCA and in the alternative, damages under s 82 of the CCA.

132 The first issue is the precise nature and extent of the representation. No oral representations are relied on. What statement or representation does the Agreement convey? Whatever statement or representation is conveyed by the document it is not that a lease on the desired terms would necessarily be forthcoming. As pointed out, the relevant provisions as between vendor and purchaser provide an adequate framework for further discussion with the landlord. It is not pleaded or suggested - nor could it be - that Terrabridge was in any way bound by the Agreement. By permitting a framework for the lease Hilldove and Niall did not convey that the lease would be forthcoming without any negotiation or independent consideration by Terrabridge. They did not warrant, guarantee or represent merely by the wording in the Agreement that they would be successful or that a lease satisfactory to Nicholson would result. That is why Special Condition 1(d) was inserted. I refer to the matters set out in Section F of the judgment.

133 Accordingly, I am not persuaded or satisfied that the Agreement contains a clear, precise and unequivocal representation that Hilldove 'would and could procure a lease on the agreed terms'. Although the contracting parties had agreed on certain important proposed terms of a lease, this was in no way binding on Terrabridge and agreement on the desired terms not only contemplated further discussion with Terrabridge but did not carry with it a representation that a lease would necessarily be concluded on such terms. Of course whether or not a lease would eventuate is not to the point. What is contended is that Hilldove represented that it would eventuate. In my opinion, whatever the representation, it stopped short of Hilldove representing that it would or could ensure that the lease eventuated.

134 If, contrary to my view, the representation to the effect alleged was made, it related to a future matter and was neither true nor false at the time it was made. Insofar as it contained a representation of present intention and a belief that a lease including the agreed terms would eventuate and that such a lease would be made good, it has not been established that such belief or present intention on the part of Hilldove was itself false, the reversal of onus provisions not having been invoked.

135 Further, I am not persuaded that Nicholson relied on such representation. As a very experienced businessman he was undoubtedly aware that much was required to be done to secure a 40 year lease. For this reason, Special Condition 1(d) was inserted presumably for the benefit of the Purchaser.

136 I conclude that the Agreement is binding and enforceable. Hilldove has, by its conduct, repudiated the Agreement. Nicholson has, by his conduct, accepted the repudiation and terminated the Agreement, electing to pursue a claim for damages. Damages are to be assessed separately.

137 I conclude further that the claim for misleading or deceptive conduct fails.

138 I will hear from the parties in relation to the precise basis and form of any order and the further disposition of the matter.

[1] The original email sent by Iliopulos bounced back and was re-sent.

[2] In later evidence (T 148.28) Nicholson almost concedes this.

[3] It should be stressed that whether or not the agency agreement was validly extended, and consequently whether Cropley Commercial had a mandate to sell the Crown Hotel, is not strictly relevant. Insofar as it may be relevant, there is little doubt that Cropley Commercial was in fact acting on behalf of Hilldove with its express knowledge and consent.

[4] Niall was the sole director of a company in sale mode and was to the knowledge of the investors (at the very least Richardson) actively involved in the sale process.

[5] Sections 128 and 129(2)(a) and (b) of the Act.

[8] Summers and Another v The Commonwealth [1918] HCA 33; [1918] 25 CLR 144; 151-152; Wallera Pty Ltd v CGM Investments Pty Ltd [2003] FCAFC 279, [40]-[44].

[9] No obligation has been pleaded or suggested.

[10] The plaintiff goes no further than pleading that Terrabridge was, by its director Niall, aware of the implied terms as between Hilldove and Nicholson that Hilldove would procure a lease from Terrabridge. Terrabridge's knowledge of such implied term does not create a contractual obligation.

[11] BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 292; Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337 at 348.

Competition and Consumer Act 2011(Cth)

At a glance

Court

Decision date

Before

Source

Judgment (168 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)