Spuds Surf Chatswood Pty Ltd v PT Ltd

The Respondent's submissions on unconscionable conduct

126 Aspects of the evidence. Mr Angyal's submissions in relation to the Applicant's unconscionable conduct, like those of Mr Fernon, relied on certain aspects of the evidence to which in the first appeal decision we did not refer in any detail, or (in some instances) at all. 127 First, he drew our attention to the following matters of factual background that we did not mention. In November 1998, Mr Mimis received (presumably for the first time) a copy of the Respondent's Fitout Requirements, including what became the 2002 Height Restrictions. This was in the context of negotiations for a lease to the Applicant of Shops 415 and 416 in the Centre. That lease commenced on 15 January 1999. During 1999, Mr Mimis sought rental assistance from the Respondent and received about $54,000, on the ground that the Applicant's trade was disrupted by works being carried out in the Centre. At the time (on or about 26 July 2001) when he started the negotiations with the Respondent that ultimately led to the replacement of this first lease with the Lease relating to Shops 415, 416 and 417, Mr Mimis owned five other shops occupying premises leased from the Respondent in other centres. In submissions to the Tribunal at the end of the Tribunal hearing, counsel for the Applicant described Mr Mimis as an experienced businessman and retailer. 128 Secondly, Mr Angyal placed emphasis on the fact that the annual base rent of $427,500 payable under the Lease for Shops 415, 416 and 417 represented a substantial increase over the total rent of about $246,340 that the Applicant had previously paid during the final stages of the preceding lease of Shops 415 and 416. According to Mr Bell, an expert witness called by the Respondent, a consequence of this increase in rent was that the Applicant needed to increase its sales in the expanded premises by about 45% in order just to break even. In fact, its sales increased by only about 25%. 129 In view of the scale of this increase in rent and the fact that the Applicant's sales did not increase to a sufficient degree to match it, Mr Angyal drew our attention to evidence that in his submission provided the basis for an important inference. This was that as from about the time (10 August 2002) when the first payment of the increased rent had to be made, the stance adopted by Mr Mimis and Ms Mimis-Weeks in their communications with the Respondent was motivated, not by any genuine concern about sightlines, but by a desire to persuade the Respondent to reduce significantly the rent, though not the size, of the Premises. 130 This evidence was to the following effect:- (a) Although construction of the B-Zone kiosk was completed on or about 1 September 2001, the first and only occasion on which Mr Mimis complained to the Respondent that it interfered with the sightlines from the car park entrance to the Premises was during his meeting with Ms Johnson and Mr Pinter on 9 August 2002 - this being the day before the first payment of the increased rent was due. (b) The relief that Mr Mimis sought from the Respondent when first insisting that the 2002 Height Restrictions should be complied with was a reduction of the increased rent. This was in the letter of 21 August 2002 to Landerer & Company in which he sought to make a handwritten amendment to the draft of the Lease (see A157 to A161 and the ensuing discussion). (c) Mr Mimis, in his memorandum of 12 November 2002 to Mr Roberts (see A39), asserted that he could not afford to have his trade impeded by kiosks near the Premises (including the newly constructed Boost Juice kiosk) unless the 'premium rent' that he currently paid was 'addressed'. In this memorandum, he acknowledged that the recent demolition of the B-Zone kiosk had led to a 'significant increase' in sales. (d) In his letter of 9 December 2002 to Landerer & Company, outlined above at [115], Mr Mimis rejected Mr Roberts' offer, made on 27 November 2002, to permit the Applicant to relocate its principal signage from above Shops 415 and 416 to a position above Shop 417, where it would be more visible from the car park entrance. The only reason that Mr Mimis gave was that the Respondent was not prepared to meet the expense of doing this. In the same letter, he once again attempted, relying on his handwritten amendment to the Lease, to induce the Respondent to accept a lower rent. (e) In a letter dated 13 May 2003 to Mr Roberts (see A47), Mr Mimis made a further attempt to reduce the rent, relying on the handwritten amendment. (f) After the Applicant had paid only part of the rent for August 2003, Mr Mimis claimed, in an email to Mr Roberts dated 1 September 2003, that the bond money (about $24,000) relating to the earlier lease of Shops 415 and 416 had not been refunded. He asked Mr Roberts to 'chase' it for him. The bond had in fact been refunded during August 2002. (g) In a letter dated 27 January 2004 to Landerer & Company (see A50) Mr Mimis made a further claim for a rent reduction, based on his handwritten amendment to the Lease. (h) In an email dated 21 February 2005 (see T58), following a meeting three days earlier between Mr Stevens, Mr Papagiannis and Mr Mimis, Mr Stevens sent to Mr Mimis a proposal for downsizing the Applicant's shop and reducing the monthly rent by about $8,000. A sketch plan of the suggested changes to the Premises was attached. Although Mr Mimis promised that he would 'review' this and 'get back to' Mr Stevens, he never replied. (i) On 11 August 2005 (see T67), Mr Stevens sent to Ms Mimis-Weeks a similar proposal for downsizing the shop and reducing the rent. She did not respond to it. (j) On 23 August 2005 (see T68, T135 and T136), Ms Mimis-Weeks met with Mr Rossel and Ms Katie Preston, who was a retail design manager at the Centre. In relation to this meeting, Mr Rossel testified as follows: (a) it was arranged, and Ms Preston was invited to attend, because Ms Mimis-Weeks wanted further discussion of the proposal to relocate the signage; (b) Ms Preston offered to review any design for the relocation that Ms Mimis-Weeks prepared; and (c) Ms Mimis-Weeks never submitted any such design. He contested her allegations that at the meeting she asked for rent relief and that Ms Preston conveyed a willingness to let her put 'Surf City stickers' at the top of the window of Shop 417. Mr Rossel added that Westfield never permitted signage in the form of 'stickers'. The Tribunal found at T236 that the credibility of 'the Westfield witnesses' was not significantly questionable, whereas the evidence of Ms Mimis-Weeks was not reliable on its own, particularly when it was in conflict with that of other witnesses. (k) On 21 August 2006 (see T91 and T92), following a meeting twelve days earlier between Mr Robert Jordan (the Managing Director of Westfield for Australia and New Zealand), Mr Peter Leslie (the Divisional Director of Leasing for these two countries), Mr Papagiannis and representatives of the Applicant, the Respondent communicated to Ms Mimis-Weeks a further offer involving downsizing the shop and reducing the rent. This was not accepted. (l) On 12 October 2006 (see T100 and T162), at a meeting between Mr Jordan, Mr Leslie, Ms Mimis Weeks and Mr Weeks, the Respondent offered to permit the Applicant to surrender the Lease without payment of any further rent. At this time, the remaining rent due under the Lease amounted to $1,167,097. Mr Jordan, whom the Applicant called as a witness, testified that in the normal course Westfield did not make offers of this nature. Four days later, Ms Mimis-Weeks rejected the offer and made a counter-offer, under which the Applicant would surrender the Lease in return for a payment by the Respondent of this same amount. She cited as a precedent a recent agreement between the Respondent and another tenant, whereby a lease was surrendered in return for payment of the amount of rent still due under the lease. On the same day, Mr Jordan rejected this counter-offer. 131 Mr Angyal also pointed to what he claimed were significant gaps in the evidence on which the Applicant relied in seeking to establish unconscionable conduct. These included the lack of any evidence tending to show that at the time (5 April 2002) when according to Mr Sicouri the parties reached 'commercial agreement' as to the terms of the Lease, the Respondent intended to do any of the following things: to lease Kiosk 407 to Boost Juice Pty Ltd; to lease Kiosk 406 to Business Service Brokers Pty Ltd (the company that erected the Telechoice kiosk); to lease Kiosk 426 to Love Salad Pty Ltd; to lease any of these kiosks to any other kiosk operator; or to approve plans for any kiosk that would contravene the 2002 Height Restrictions. 132 In addition, Mr Angyal pointed out that it was not put to any of the Respondent's witnesses who were or had been employees of the Respondent that (a) the Respondent, as at 5 April 2002, intended to take any of the steps just outlined or (b) that the Respondent engaged in unconscionable conduct in relation to the Height Restrictions, or at all. Also, as a consequence of the concession made by Mr Fernon at the preliminary hearing on 9 May 2002 (see [47 - 49] above), the Applicant could not submit that the evidence was sufficient to support the specific inference that Mr Roberts, in his dealings with Mr Mimis, acted in bad faith. 133 A further significant gap that Mr Angyal claimed to exist in the Applicant's case was that there was no evidence as to whether a sign or signs suspended from the ceiling above the Boost Juice kiosk would have obstructed the sightlines to the Premises to a greater or a lesser degree than the blade signs that were in fact constructed. 134 Mr Angyal also maintained that because of (a) the strong doubts expressed by the Tribunal about Ms Mimis-Weeks's credibility and (b) the absence of any finding on the matter by the Tribunal, the Applicant lacked the evidence that it required to support its claim that both the Telechoice kiosk and the Love Salad kiosk infringed the 2002 Height Restrictions. 135 Finally, Mr Angyal (like Mr Fernon) relied on features of Level 4 of the Centre that we were able to discern for ourselves during the inspection that we conducted on 21 June 2012. At his request, and with the concurrence of Mr Fernon, we also viewed (during the hearing on the following day) a CD Rom that had been tendered and admitted at the Tribunal hearing (see T166 to T168). 136 This CD Rom, prepared by an expert witness (Ms Radosevic) whom the Respondent called, contained some two-dimensional plans and also three-dimensional representations of three 'walk throughs', showing the following:- (a) The Telechoice and Boost Juice kiosks, with the walk through commencing at the entrance from the blue level car park exit and ending at a point immediately past the kiosks and in front of the shop-front to shop 417. (b) The B Zone kiosk, with the walk through commencing at the entrance from the blue level car park exit and ending at a point immediately past the kiosk and in front of the shop-front to shop 417. (c) The B Zone kiosk superimposed on the Boost Juice and Telechoice kiosks. 137 The factors listed in section 62B(3). Mr Angyal sought through the following arguments to rebut Mr Fernon's submissions linking the Respondent's conduct to paragraphs in section 62B(3) of the RL Act:-

1. Paragraph (a): The Respondent was not in a superior bargaining position because Mr Mimis, being the owner or former owner of six businesses occupying premises leased by the Respondent and also an experienced businessman and retailer, was (in Mr Angyal's words) 'a force to be reckoned with'. In the negotiations leading up to the Lease, he could have insisted on the inclusion of a term requiring the Respondent to ensure the 2002 Height Restrictions, interpreted in the manner that he claimed to be correct, were adhered to, at least in relation to any kiosk that replaced the B-Zone kiosk. But he did not do so.
2. Paragraph (c): Because the Applicant did not enter into the Lease in reliance on the 2002 Height Restrictions, any ambiguity in them was irrelevant.
3. Paragraph (d): Since Mr Mimis received a copy of the Fitout Requirements, including these Restrictions, as early as November 1998 (if not earlier), it was 'difficult to see what tactic was involved, or unfairness inhered' in their being sent to him. Furthermore, the Applicant did not put to any witness called by the Respondent that it had acted unconscionably by engaging in unfair tactics.
4. Paragraphs (g) and (h): Because section 62B is a provision that (in Mr Angyal's words) 'proscribes and punishes conduct akin to fraud', it must be construed strictly. To attract the operation of these paragraphs, it is therefore not enough to show that a relevant document is 'analogous to' an 'industry code'.
5. Paragraph (i)(i): Mr Angyal made four specific submissions in this context: (a) There was no evidence to show that as at 5 April 2002, being the date on which the parties agreed on the 'commercial terms' of the Lease, the Respondent intended to approve the construction of any of the three kiosks, with or without contravention of the 2002 Height Restrictions. This date was the relevant time for the Respondent to disclose any such intention, because thereafter the Applicant could not adapt the terms of the Lease to protect itself from the intended conduct. (b) Because the B-Zone kiosk infringed these Restrictions, it would not have been unreasonable for the Respondent to fail to disclose any intention to approve the future construction of kiosks that also infringed them. (c) It was not put to any witness called by the Respondent that any such failure was unreasonable. (d) On account of the unreliability of Ms Mimis-Weeks' evidence and the absence of any other evidence relating to the dimensions of the Telechoice kiosk or the Love Salad kiosk, it was not open to the Appeal Panel to find that either of these kiosks infringed the 2002 Height Restrictions.
6. Paragraph (k): At the preliminary hearing on 9 May 2012, Mr Fernon gave an undertaking that he would not allege bad faith on the part of Mr Roberts when dealing with the Applicant. For practical purposes, Mr Roberts acted as 'the relevant mind' of the Respondent. It followed that no finding of bad faith could be made against the Respondent and indeed that the Respondent must be held to have acted in good faith. It continued to do so even though there were 'substantial indications' that the Applicant acted in bad faith. 138 In the context of his submission, relating to each of paragraphs (d), (i)(i) and (k), that claims made by the Appellant were not put to relevant witnesses called by the Respondent, Mr Angyal relied on principles of natural justice and on the rule in Browne v Dunn (1893) 6 R 67. He cited the following dictum of Glass JA (with which Reynolds and Mahoney JJA agreed) in Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219 at 225:- On appeal, as happened in Browne v Dunn, the Court will be inclined to disregard a submission on the evidence which was not tested by putting questions to the party best able to deal with it:… 139 In the context of his submission, relating to paragraph (k), that there were 'substantial indications' of bad faith on the part of the Applicant, Mr Angyal relied on various items of evidence (coupled in some instances with findings made by the Tribunal) that showed, in his submission, that Ms Mimis-Weeks had acted illegally or dishonestly in certain ways. All of this alleged conduct on her part occurred during or after October 2006. We do not propose here to describe the evidence to which Mr Angyal adverted. Our reasons for adopting this course are explained below. 140 Other submissions on unconscionable conduct. In Mr Angyal's argument, two further propositions were important: (a) that for reasons already explained, the Applicant could not allege that Mr Roberts, or any other relevant employee of the Respondent, had acted in bad faith in his or her dealings with the Applicant; and (b) that the Tribunal had found (see T225(d)) that the degree to which sightlines to the Premises had been obstructed by the replacement of the B-Zone kiosk with the Boost Juice kiosk was 'insufficient to enliven' section 34 of the RL Act. 141 For these reasons, Mr Angyal contended, the Respondent's conduct could not, as a matter of law, be characterised as 'highly unethical' or deserving of 'moral obloquy', so as to satisfy the requirements laid down by Spigelman CJ in Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261 at [121]. If this conduct were held to be unconscionable, he claimed, section 34 of the Act would be rendered redundant because unconscionable conduct would be 'the first and easiest port of call'. 142 Other submissions advanced by Mr Angyal were as follows:- (a) The 'unilateral demands' that the Applicant made for reduction of the rent for the Premises, commencing with Mr Mimis's letter on or about 21 August 2002, should be characterised as 'unjust and unjustifiable'. (b) Mr Mimis, in his letter of 12 November 2002 to Mr Roberts, sought to take advantage of an 'unexpected fortuitous development' (the demolition of the B-Zone kiosk) by making a 'completely opportunistic and unconscionable request' that the kiosk replacing it (the Boost Juice kiosk) should not be permitted to have 'any effective signage of the sort that the B-Zone kiosk had. (c) The Respondent made, but the Applicant rejected or ignored, the following reasonable proposals for settling their dispute:-

(i) Offers on two occasions (27 November 2002 and 23 August 2005) to allay the Applicant's concerns about sightlines by permitting it to relocate its principal signage to a position above Shop 417 that was fully visible to potential customers proceeding along the walkway from the car park entrance. The only reason that the Applicant gave for rejecting the first offer was that it would have to pay the relatively small amount (i.e., in Mr Angyal's words, 'a few thousand dollars') required for the relocation. (ii) Offers on 21 February 2005, 23 August 2005 and 21 August 2006 involving downsizing the shop and reducing the rent. (iii) An offer on 12 October 2006 that the Applicant could surrender the Lease without having to pay any of the substantial amount of rent ($1,167.097) still due under it. (d) In the present context, the Applicant could not rely on evidence to the effect that loud music played and queues of people forming near the Boost Juice kiosk deterred potential customers of the Applicant from seeking to gain access to the Premises. The reason was that none of these matters formed part of the Applicant's unconscionable conduct claim as formulated for the purposes of this appeal. (e) In the present context, the Applicant could not rely on the Respondent's argument (in its submissions to the Tribunal) that by virtue of the long leases that it had granted with respect to the three kiosks, it was not obliged until some years had elapsed to take any action to remedy alleged disruption of the Applicant's trade. The reason was that the Respondent had put forward this argument in relation to the Applicant's claim under section 34 of the RL Act, not its unconscionable conduct claim. (f) Because, for reasons outlined below, the Applicant had failed to prove either (a) that the Respondent's conduct involving breaches of the 2002 Height Restrictions caused it to sustain any financial loss or (b) what the amount of any such loss might be, it could not include an assertion that significant loss had in fact been occasioned as a component of its case on unconscionable conduct.

Our conclusions on unconscionable conduct 143 In his written submissions prepared for the second appeal hearing, Mr Fernon referred to a passage in the first appeal decision (at A299) in which we set out nine matters, occurring between February 2002 and July 2005, that could (we said) constitute a basis for the Applicant's case on its unconscionable conduct claim 'at its highest'. These matters (with a minor correction of the numbering) are as follows:-

1. Through distributing the 2002 Height Restrictions to tenants and prospective tenants, the Respondent established them as a guideline or code operating throughout the Centre and assumed the responsibility of ensuring that the plans for new structures in the Centre complied with them.
2. In the Restrictions, the applicability of the maximum height limit to different types of signage was left unclear.
3. In February 2002, the Respondent made the Applicant aware of the Restrictions during negotiations for the Lease. In August 2002, shortly after the Lease commenced, the Applicant notified the Respondent's solicitors that it expected any new structures being erected near the Premises to comply with them. Yet without any notification to the Applicant, the Respondent proceeded during the next three months to approve plans for the Boost Juice kiosk near the Applicant's shop, in the context of granting a long lease, even though (a) on a viable interpretation of the Restrictions, the kiosk did not comply with them on account of the height of signage extending upwards from the ground and (b) the approval was at odds with a term of this lease.
4. In May 2003, in the course of unsuccessful negotiations between the parties, the Respondent's response to the Applicant's claims that the Boost Juice kiosk contravened the Restrictions was solely to state that they must be given a different interpretation, according to which they imposed no express or implied restriction on the height of any signage.
5. At about the same time, the Respondent also approved the construction of the Telechoice kiosk near the Premises, in the context of granting a long lease. It did this even though this kiosk also contravened the 2002 Height Restrictions.
6. During 2005, the Respondent issued the 2005 Height Restrictions, with which both of these kiosks were compliant. At about the same time, it approved the construction of the Love Salad kiosk near the Premises, in the context of granting a long lease. It did this even though this kiosk also contravened the 2002 Restrictions (though not those of 2005).
7. The Respondent claimed that it could not require the removal of any of the three kiosks, giving as a reason its own conduct in granting long leases in relation to them.
8. The Respondent also claimed that the substitution of the 2005 Height Restrictions for those of 2002 provided legitimate grounds for it to reject the Applicant's complaints about all three kiosks.
9. Despite receiving complaints during the period between August 2002 and June 2004 about the obstruction to sightlines caused by kiosks, the Respondent apparently took no steps, until July 2005 at the earliest, by way of providing rental or other financial assistance to the Applicant. Instead, it insisted that it was entitled to the full amount of rent stipulated in the Lease and it subsequently instituted legal proceedings to recover this rent. 144 In written submissions prepared for the second appeal hearing, Mr Fernon referred to these nine matters as the matters on which we said that the Applicant's unconscionable conduct case was based. All that we said was in fact that such a case could be based on them. But as we understand Mr Fernon's submissions he sought to rely on them in putting forward this case. 145 These nine matters constitute a convenient framework for our discussion of the competing arguments put to us. We will deal with each of them in turn, then state our overall conclusion regarding the Applicant's unconscionable conduct claim. 146 In this discussion, we will include our observations on the individual paragraphs within section 62B(3) of the RL Act to which the parties made specific reference in their submissions. An issue of contention regarding those provisions was whether they should be construed strictly (as Mr Angyal argued) or as implying (as Mr Fernon argued) that factors 'analogous' to the 'indicative factors' described in them should also be treated as relevant to the question of unconscionability. In view of the opening words of the subsection, we prefer Mr Fernon's submission on this point. 147 1. The establishment of the 2002 Height Restrictions as a 'guideline or code' within the Centre and the Respondent's role in ensuring compliance with them. At T209, the Tribunal described these Restrictions, along with the rest of the Red Book, as 'a feature of the overall relationships among Westfield and its tenants and prospective tenants'. This characterisation of them was not challenged in the Respondent's submissions in the appeal. Also significant here is the statement in the clause imposing the Restrictions that 'Maintaining sightlines through all Kiosks (our emphasis) is essential, therefore height restrictions apply'. 148 The implicit assumption by the Respondent of responsibility for ensuring compliance with the 2002 Height Restrictions follows, in our opinion, from its status as the owner and manager of the Centre. We take account also of its practice of disseminating them to all tenants and prospective tenants and stating that any finishes, fixtures etc that a prospective tenant was to provide were to be 'in accordance with the Fitout Requirements'. Such a statement was included, for instance, in Mr Sicouri's letter of 18 March 2002 to Mr Mimis (see T31). A further consideration is the simple one that no party other than the Respondent was either legally entitled to ensure uniform compliance with them throughout the Centre or capable, from a practical point of view, of ensuring compliance. 149 Considerations such as these prompted the following observation by us at [84] above, relating to the suggestion that if Mr Mimis had indicated during negotiations for the Lease that he expected the Respondent to ensure compliance with the Restrictions, Mr Sicouri would have replied that Westfield was not prepared to go ahead with the Lease:- The message that such a reply on the Respondent's behalf would convey, put in extreme form, would be that the Height Restrictions for kiosks should be regarded by the tenants of shops as a matter of academic interest only, since the extent, if any, to which the Respondent would enforce them against existing and prospective tenants of kiosks was entirely for the Respondent to decide. 150 In our opinion, the Red Book, by virtue of the features of it that we have just identified, could properly be characterised as a 'code'. In a loose sense, it was analogous to an 'industry code' within the meaning of paragraph (h) of section 62B(3), to the extent that it was prepared and distributed by one participant (the Respondent) as a set of requirements binding the other participants (the tenants) within a defined sector (the Centre) of an 'industry' (retail trade). For reasons that we have just outlined, the Respondent implicitly assumed responsibility for ensuring compliance with these requirements. It was reasonable, in our opinion, for the Applicant to believe that it had done this. 151 Section 62B(3)(h) is evidently not directly applicable to this case. But having regard to the opening words of section 62B(3), there are sufficient parallels between the matters outlined in the preceding paragraph and the components of section 62B(3)(h) to justify treating these matters as relevant to our decision on unconscionable conduct. 152 2. The lack of clarity in the Restrictions regarding the applicability of the maximum height limit to different types of signage. As mentioned above, Mr Fernon's primary submission on this matter was that on the most important question of interpretation of the Restrictions - i.e., whether blade signs and similar structures that were erected 'from the ground up' were 'overhead elements' and therefore not subject to the height limit of 1400 mm - there was no ambiguity at all. Such structures, in his submission, were clearly not 'overhead elements'. 153 The dispute on this question between the parties was usefully crystallised in the letters passing between Mr Roberts and Mr Mimis during 2003 (see T48, T51, A49). In a letter to Mr Mimis dated 28 May 2003, Mr Roberts wrote, with reference to the Boost Juice kiosk:- The issue that you have constantly identified is the height of the menu boards. The section of the fit out guide you refer to, page 40, is specific in reference to the kiosk height to be restricted to 1400mm. This has been complied with strictly. On page 41, the restriction on menu boards only that they 'be kept to a minimum' in quantity. No restriction in height is identified or implied 154 In responding to this letter on 1 December 2003, Mr Mimis wrote:- The point you refer to stating 'overhead elements including menu boards and structure are to be kept to a minimum' is not relevant here as the Boost Kiosk structures that are over 1400mm are not overhead but rather from the ground up. Had they been overhead they would not create the level of visual impairment that they currently do to my tenancy. 155 In the first appeal decision at A149, we described the provisions as 'ambiguous' (as did the Tribunal at T209). We added at A151 that we were 'inclined' to the opinion that the Boost Juice kiosk infringed them. Having revisited the evidence and given further consideration to the question, we now believe, in accordance with Mr Fernon's submission, that the term 'overhead elements', in its natural meaning, should not be taken to include any structure that is erected from the ground merely because it reaches a height above the head of a normal person. While the conflicting interpretation urged by Mr Roberts is not wholly ruled out by the terms of the Restrictions, it is, in our opinion, a distinctly strained and awkward interpretation. 156 We would point out here that the Macquarie Dictionary defines 'overhead', used as an adjective, as 'situated, operating, or passing overhead, aloft, or above'. Merriam-Webster's Online Dictionary and Thesaurus uses the phrase 'operating, lying, or coming from above'. Furthermore, as we recorded at A117, Mr Stevens and Mr Papagiannis acknowledged in cross-examination that a blade sign built from the ground up was distinct from an overhead sign and was indeed 'obviously a part of the kiosk'. In his evidence, Mr Papagiannis acknowledged also that the clause in the lease to Boost Juice Pty Ltd, which restricted the height of the Boost Juice kiosk to 1400 mm 'including any counters, signs, displays, merchandise and equipment installed therein', was in essence 'giving effect to' the Restrictions. 157 As a secondary submission, Mr Fernon maintained that if the Height Restrictions were to be regarded as ambiguous, their ambiguity attracted the operation of paragraphs (c) and (i)(i) of section 62B(3). Mr Angyal's response related only to paragraph (c): it was to the effect that any ambiguity was irrelevant because the Applicant did not rely on the Height Restrictions. 158 We are attracted to Mr Fernon's contention, since it appears from Mr Roberts' letter of 28 May 2003 that Mr Mimis may not have understood the Respondent's position on this particular aspect of the Restrictions until he received that letter. 159 With regard to Mr Angyal's response, we consider it useful here to recapitulate our findings on the matter of reliance by the Applicant on the existence of the 2002 Height Restrictions when deciding to enter into the Lease. We held at A140 that the Applicant had failed to prove that their existence was 'fundamental to' this decision on its part. At A145, however, we said:- 145… this conclusion by us - that there was a lack of evidence to support the proposition that the existence of these Height Restrictions was 'fundamental to' the decision of the Applicant to enter into the Lease - does not mean that during the period of negotiations Mr Mimis paid no attention at all to their presence in the Fitout Requirements… It is entirely possible that the existence of the Height Restrictions and an entirely understandable assumption that the Respondent would insist on compliance with them were factors that the Applicant took into account in deciding to enter into the Lease, without these matters being 'fundamental' in the sense that if they had not been present the Applicant would have decided not to enter into the Lease. 160 On revisiting the matter, we conclude that what we there described as 'entirely possible' should in fact be treated as an inference to be drawn, on the balance of probabilities. 161 3. The Respondent's conduct, after notification by the Applicant of its expectation that the Height Restrictions would be observed, in entering into a five-year lease involving the erection of the Boost Juice kiosk and approving plans that contravened both the Restrictions and this lease. The important evidence on these matters is as follows. 162 The first notification to the Respondent of the Applicant's concerns about contravention of the 2002 Height Restrictions occurred on or about 21 August 2002, in Mr Mimis's letter to Landerer & Company. That letter conveyed the message that Mr Mimis regarded as impermissible 'any… visual impediment to the shop front above 1.4 metres high in front of shops 415 to 417'. The implicit reference to the Height Restrictions was unmistakable. 163 As indicated above at [114], the evidence that was first highlighted for us in the submissions for the second appeal hearing included evidence that between 2002 and 2005 a group of employees of the Respondent called 'the shop opening and design team' had the responsibility of ensuring compliance by incoming tenants with the 2002 Height Restrictions. This group approved the design for the Boost Juice kiosk, including its blade sign reaching a height of about 2.8 metres, even though the lease to Boost Juice Pty Ltd, which had a term of six years, restricted the height of the kiosk 'including any counters, signs, displays, merchandise and equipment installed therein'. 164 The surrender of the lease of the B-Zone kiosk, being a pre-requisite of the grant of a formal lease to Boost Juice Pty Ltd, was not executed until 30 October 2002. At any time until then, being aware of the Applicant's concerns and of the fact that the kiosk, once erected, was likely to remain in place for about six years, the Respondent could have required Boost Juice Pty Ltd to adhere to the express stipulation regarding height contained in its lease. Equally, it could have notified the Applicant that the approved plans involved a contravention of the Height Restrictions as interpreted by Mr Mimis and that the effects of this contravention were likely to endure for about six years. It did neither of these things. 165 Because no member of the 'shop opening and design team' was called as a witness, the reason why the team approved the plans in contradiction of the term in the lease remains unknown. For reasons set out earlier, it cannot be held that any of the employees comprising this team, or indeed any other employee of the Respondent, acted in bad faith vis-à-vis the Applicant in approving the plans or indeed permitting the kiosk to be constructed in accordance with them. Equally, it cannot be assumed that any of these employees knew of the concern expressed by Mr Mimis in his letter to Landerer & Company. But there was undoubtedly a failure on the Respondent's part, for reasons that have not been explained, to enforce the clause contained in the lease of six years' duration to Boost Juice Pty Ltd or to respond in any other way to the specific concern about the height of 'visual impairments' communicated by the Applicant, a neighbouring tenant. This failure occurred even though the clause, according to at least one employee of the Respondent (Mr Papagiannis), was intended to 'give effect to' the Height Restrictions and the interpretation of them put forward by the Applicant accorded with the terms of the clause. 166 In our opinion, the Respondent's conduct in this regard amounted to a breach of a 'code' that it had promulgated amongst tenants and prospective tenants. This 'code' was loosely analogous, for the reasons that we have explained, to an 'industry code' under paragraph (h) of section 62B(3). The Applicant could reasonably expect the Respondent to comply with it. 167 We find also that the Respondent's failure in these circumstances to inform the Applicant of its approval of the plans for the Boost Juice kiosk fell within the terms of paragraph (i)(i) of section 62B(3). It amounted to unreasonable failure by a lessor to make a disclosure to the lessee of intended conduct by it that might affect the interests of the lessee. 168 In so finding, we reject Mr Angyal's arguments to the following effect: (a) importantly, there was no evidence to show that as at 5 April 2002, being the date on which the parties agreed on the 'commercial terms' of the Lease and therefore the date after which the Applicant could not adapt the terms of the Lease to protect itself from the intended conduct, the Respondent intended to approve the construction of this or any other kiosk; (b) because the B-Zone kiosk also infringed these Restrictions, it would not have been unreasonable for the Respondent to fail to disclose any intention to approve the future construction of kiosks that also infringed them; and (c) It was not put to any witness called by the Respondent that any such failure was unreasonable. 169 Our separate reasons for rejecting these three arguments are these: (a) if the Applicant had been told about the approval of the plans for the Boost Juice kiosk before the kiosk was actually erected, it could have explained to the Respondent why it believed the approval to be in contravention of its legitimate expectations arising out of the Height Restrictions and possibly succeeded in inducing the Respondent to insist on compliance by Boost Juice Pty Ltd with the clause in the (at this stage) unexecuted lease; (b) the Respondent's failure to disclose was unreasonable despite the prior existence of the B-Zone kiosk because this kiosk interfered with sightlines to the Premises in a different way and (as found by the Tribunal at T222(b)) to a lesser degree than the Boost Juice kiosk; (c) the question whether the Respondent's failure to disclose was 'reasonable' is an objective question to be determined by the Tribunal, without any necessity for it to be put to any witness called by the Respondent. 170 4. The Respondent's response, during May 2003, to the Applicant's claims that the Boost Juice kiosk contravened the Restrictions. This response was summarised in Mr Roberts' letter of 28 May 2003 (reproduced at A49), maintaining that in the 2002 Height Restrictions no restriction on the height of menu boards was 'identified or implied' and that therefore 'no further issue' existed. He was referring expressly to the menu boards on the Boost Juice kiosk, which were erected 'from the ground up', not suspended from the ceiling. 171 In our judgment, the Respondent was well placed to insist that this interpretation of the Restrictions should govern its dealings with the Applicant because at this stage it was in a distinctly stronger bargaining position than the Applicant, within the meaning of paragraph (a) of section 62B(3). 172 We have reached this conclusion even though we agree with Mr Angyal's characterisation of Mr Mimis as an experienced businessman and retailer and, potentially, as a 'force to be reckoned with'. We agree also that, as Mr Angyal submitted, Mr Mimis might well have been able for this reason to insist that a clause obliging the Respondent to adhere to the Restrictions (as interpreted by him) when negotiating with prospective tenants of kiosks should be inserted into the Lease. 173 At the time of Mr Roberts' letter, however, the Applicant had entered into the Lease and committed itself to occupying the Premises and paying rent until July or August 2007. Its attempts to insert a clause into the Lease providing for reduction of the rent during any period when the Restrictions, according to its interpretation, were contravened by a kiosk near its shop had been rebuffed. Taking into account also the very great disparity in the size and resources of the respective enterprises owned and conducted by the parties, we consider that any significant bargaining power that the Applicant possessed while negotiating the terms of the Lease had dissipated by May 2003. Mr Roberts, on behalf of the Respondent, was in a position to put forward its interpretation of the Restrictions and add that he trusted that 'this clarifies matters', with the reasonable expectation that any comeback on the Applicant's part would most probably be confined to seeking to negotiate further on the matter. 174 5. The Respondent's approval of the construction of the Telechoice kiosk, in contravention of the 2002 Height Restrictions. This occurred at some point between late March and the end of May 2003. The evidence as to the dimensions of the kiosk included Ms Mimis-Weeks's testimony. While we acknowledge the strength of Mr Angyal's submission that it would be unsafe to rely on this testimony alone as the basis for a finding that the height of the blade sign on it exceeded 1400 mm, this testimony was corroborated by an expert witness (Mr Terrill) whom the Respondent called. We make a finding to this effect, it being a matter on which the Tribunal made no finding. 175 At the time of approval of the plans for this kiosk, the Respondent had been aware for at least seven months of the Applicant's objections to the erection of kiosks contravening the Restrictions near their shop. The lease relating to the kiosk had a term of five years. 176 We make the same findings about the approval of the plans for this kiosk as we did with regard to the Boost Juice kiosk. The Respondent's conduct amounted to a breach of a 'code' that it had promulgated. This 'code' was loosely analogous to an 'industry code' under paragraph (h) of section 62B(3), with which the Applicant could reasonably expect the Respondent to comply. In addition, the Respondent's failure in these circumstances to inform the Applicant of its approval of the plans fell within the terms of paragraph (i)(i) of section 62B(3). 177 6. The Respondent's conduct, in or about January 2005, in (a) issuing the 2005 Height Restrictions and (b) approving the construction of the Love Salad kiosk, in contravention of the 2002 Height Restrictions. The principal evidence as to the dimensions of the kiosk was given by Ms Mimis-Weeks. We acknowledge again the strength of Mr Angyal's submission that it would be unsafe to rely on this testimony alone as the basis for a finding that the height of the blade sign on the kiosk exceeded 1400 mm. But contrary to his equivalent submission relating to the Telechoice kiosk, her evidence as to the height of that kiosk was corroborated. Furthermore, our own consideration of contemporaneous photographs of the Love Salad kiosk that were attached to a copy of an email dated 31 August 2005 from Ms Preston to Ms Mimis-Weeks - this being evidence tendered by the Respondent - suggests strongly that the blade sign reached a height exceeding 1400 mm. We make a finding to this effect, it being again a matter on which the Tribunal made no finding. 178 The lease relating to the Love Salad kiosk had a term of about five years. 179 We make broadly the same findings about the approval of the plans for the Love Salad kiosk as we did with regard to the Boost Juice kiosk. The Respondent's conduct amounted to a breach of a 'code' - the 2002 Height Restrictions - that it had previously promulgated. This 'code' was loosely analogous to an 'industry code' under paragraph (h) of section 62B(3), with which the Applicant could reasonably expect the Respondent to comply. If, as may well have been the case, it issued the 2005 Height Restrictions, with which the kiosk was compliant, shortly before granting approval to the plans, this was insufficient to relieve it of its obligation to take account of the expectations of existing tenants of shops (such as the Applicant) that the earlier Restrictions would in this particular instance be observed. In addition, the Respondent's failure in these circumstances to inform the Applicant of its approval of the plans fell within the terms of paragraph (i)(i) of section 62B(3). 180 We do not go so far as to characterise the Respondent's establishment of a new set of provisions analogous to an 'industry code' (the 2005 Height Restrictions) as constituting without more a breach of the existing provisions that we have held to be analogous to such a 'code' (the 2002 Restrictions). This would unduly restrict the Respondent's freedom to alter, from time to time, its own rules governing the dimensions of kiosks. 181 7. The Respondent's assertion that it could not require removal of the three kiosks because it had granted long leases in relation to each of them. The competing submissions of the parties on this matter are outlined above at [122] and . We do not think that the mere fact that the Respondent placed reliance on this assertion when seeking to defend the Applicant's claim under section 34 of the RL Act has any material significance in the present context. The implications, so far as the Applicant's unconscionable conduct claim is concerned, of the fact that the leases granted to the three tenants of kiosks were of long duration have been taken into account in the preceding discussion. 182 8. The Respondent's assertion that the substitution of the 2005 Height Restrictions for those of 2002 provided legitimate grounds for its rejection of the Applicant's complaints about the three kiosks. In the first appeal decision at A127 to A129, we outlined as follows the evidence of chief significance on this matter:- 127 Mr Papagiannis similarly denied that there was any contravention [of the 2002 Height Restrictions by the Boost Juice kiosk], while also acknowledging that the 2005 Height Restrictions, permitting the construction of signage up to 2.6 metres high, had represented a 'fundamental change in the policy of Westfield in relation to the construction of kiosks'… 128… Mr Stevens acknowledged that the Boost Juice kiosk did contravene the clause in the Boost Juice lease permitting a maximum height of 1.4 metres... He added that the apparent contradiction between this clause and the provision in the 2005 Restrictions permitting a higher maximum was open to the following explanation:- The lease is a contract struck at a point of time; and the guidelines are reviewed and upgraded as necessary during the course of that period. 129 At another point in his cross-examination… Mr Stevens stated that during 2005, he regarded the construction of the Boost Juice kiosk as permissible because he assessed it as against the 2005 Restrictions, not those of 2002… 183 As Mr Fernon pointed out at the second appeal hearing, Mr Stevens also testified that at the meeting on which 26 July 2005 at which Ms Mimis-Weeks was present, he did not regard her complaints about the obstruction to sightlines caused by the Boost Juice kiosk as relating to 'an issue of notable concern' and for this reason did not make a file note or other record of the meeting. 184 These aspects of the evidence were not specifically addressed in Mr Angyal's submissions. 185 In essence, the Respondent's position here, as stated by two witnesses whom it employed in managerial positions, was that after having amended the 2002 Height Restrictions to the extent of implementing a 'fundamental change' of policy in relation to kiosks, it considered itself to be entitled to reject any complaint that any existing tenant of a shop conveyed to it about any kiosk (existing or soon to be constructed) on the ground that the superseded Restrictions were much more focused on achieving the aim, described in them as 'essential', of 'maintaining sightlines through all kiosks'. 186 In our opinion, the adoption of this position by the Respondent, having regard to the prior history of its dealings with the Applicant with regard to sightlines and the 2002 Height Restrictions, can properly be characterised as 'unfair tactics', within the meaning of paragraph (d) of section 62B(3) of the RL Act. 187 Contrary to a submission by Mr Angyal, we believe that we can make a finding of this nature even though it was not put to any of the two relevant employees of the Respondent that they, or indeed the Respondent itself, had engaged in 'unfair tactics'. The tactics that we find to have been unfair were those of the Respondent, a corporate body, not of any individual employee or agent of the Respondent. The opinion of any relevant employee or agent as to whether or not any aspect of his or her conduct on behalf of the Respondent was 'unfair' is not relevant to our determination on the matter. 188 We are of the opinion also that in January 2005, the Respondent, for reasons given above in the course of discussing Mr Roberts' letter of 28 May 2003 to Mr Mimis, was in a distinctly stronger bargaining position than the Applicant, within the meaning of paragraph (a) of section 62B(3). 189 9. The Respondent's apparent failure, until July 2005 at the earliest, to provide rental or other financial assistance to the Applicant, in spite of having received complaints about the obstruction of sightlines from the Applicant between August 2002 and June 2004. This aspect of the case provides an appropriate context for discussion of an important component of the Respondent's argument in the appeal. 190 As indicated above, Mr Angyal placed significant emphasis on evidence showing that Mr Mimis and Ms Mimis-Weeks, when complaining to the Respondent about contravention of the 2002 Height Restrictions, regularly sought a reduction of the rent for the Premises, without being prepared also to consent to downsizing of the Applicant's shop. Mr Angyal argued that this evidence showed their real motivation to be their concern that their sales were insufficient to support payment of the rent, not any genuine concern about contraventions of the Restrictions. 191 We do not think, however, that this inference should be drawn. In our view and, as far as we can discern, the view of the Tribunal, the evidence provides no basis for a finding that Mr Mimis or Ms Mimis-Weeks did not genuinely believe (a) that relatively uninterrupted sightlines from the car park entrance to the Premises were of great importance for the Applicant's business and (b) that the obstruction of these sightlines by kiosks contravening the 2002 Height Restrictions (on their interpretation) would and did affect their business adversely. The most predictable and, indeed, the simplest form of relief for them to seek from the Respondent in bringing forward their complaints about these contraventions was a reduction of the rent. This would operate on a continuing basis, unlike any one-off payment of compensation. In addition, the amount of rent payable by the Applicant could be adjusted to meet any change in the configuration of kiosks near the Premises. 192 On the other hand, the evidence of rejection by Mr Mimis (on 27 November 2002) and by Ms Mimis-Weeks (on 23 August 2005) of offers to permit the Applicant to relocate its principal signage to a position above Shop 415 prompts us to add an important gloss to what we have just set out (in abbreviated form) as the last of the nine matters on which the Applicant's unconscionable conduct claim might based. These offers to permit relocation of the signage were not offers of financial assistance, but the assistance offered was significant nonetheless. 193 In our opinion, the Applicant's rejection of the first of these offers, on the ground that it would have to pay the amount required for the relocation of the signage, was not commercially wise. In so characterising it, we take into account the evidence (including that provided by our own inspection of Level 4 of the Centre) showing that the sightlines from the car park entrance to the proposed new location for the signage would then have been substantially free of obstruction and the Applicant's persistent claim that the obstruction of its principal signage, located above Shops 415 and 416, was causing it to lose a substantial quantity of business. But within the preceding few months the Applicant had spent a considerable sum fitting out its enlarged premises and installing new signage. It could hardly be blamed for insisting that if relocation of the signage was now required because of the Respondent's contravention of its own Fitout Requirements, the Respondent should be prepared to meet the expense. 194 The Applicant, however, did not put forward any ground for rejecting the second offer, other than to allege that 'stickers' were proposed. But the Tribunal did not find this allegation to be credible. 195 Accordingly, we would now withdraw our observation, at A155, criticising the Tribunal's ruling (at T211 and T233) that the failure of the parties' negotiations about the kiosks was 'attributable to fault on both sides'. This was indeed the case. 196 This qualification to our earlier view regarding the parties' responsibility for the breakdown of negotiations does not affect the consideration of prime importance: namely, that up to July 2005, at the earliest, the Respondent did not offer any rental or other financial assistance to the Applicant, in spite of having received complaints from it about the obstruction of sightlines between August 2002 and June 2004. 197 In this regard, once again, the Respondent's actions demonstrated that it was in a distinctly stronger bargaining position than the Applicant, within the meaning of paragraph (a) of section 62B(3). 198 Further submissions by the parties. Before stating our overall conclusions on the Applicant's unconscionable conduct claim, we shall deal briefly with some further points raised by counsel on each side. 199 Mr Fernon relied on the significant extent to which (in his submission) the Applicant's trade suffered by virtue of the contraventions of the 2002 Height Restrictions that the Respondent authorised. For reasons set out below, however, we consider that the impact of these contraventions was distinctly less than the Applicant alleged. The scale of the financial damage sustained by the Applicant is not, therefore, a major factor supporting the claim that the Respondent's conduct should be characterised unconscionable. 200 Mr Fernon referred also to the 'aggressive' retailing practices in which the Boost Juice kiosk engaged. We agree with Mr Angyal, however, that the evidence relating to these practices, which was adduced and given consideration by the Tribunal in the specific context of the Applicant's claim under section 34 of the RL Act, cannot be treated as relevant to its unconscionable conduct claim. 201 Mr Angyal relied on evidence, outlined above at and (l), that during 2006 the Respondent made, but the Applicant rejected, offers to settle the parties' dispute that were distinctly advantageous to the Applicant. This evidence is not directly relevant to the unconscionable conduct claim because, as formulated by the Applicant for the purposes of the second appeal hearing, it is based only on conduct of the Respondent occurring between February 2002 and July 2005. At most, this evidence casts indirect, and not particularly helpful, light on the state of the parties' relationships with each other following Ms Mimis-Weeks' assumption of control over the Applicant in 2004. 202 Mr Angyal also relied on various items of evidence (coupled in some instances with findings made by the Tribunal) that showed, in his submission, that Ms Mimis-Weeks had acted illegally or dishonestly in certain ways. All of this alleged conduct on her part occurred, however, during or after October 2006. Accordingly, it can only be considered relevant to the Applicant's unconscionable conduct claim to the limited extent that we have just outlined. In forming this view we have taken account of paragraph (k) of section 62B(3), which designates 'the extent to which… the lessee acted in good faith' as one of the matters that may be taken into account in deciding whether a lessor has engaged in unconscionable conduct. 203 Our overall conclusions. In the course of our investigation of the nine listed matters on which Mr Fernon, drawing upon paragraph A299 of the first appeal decision, sought to base the Applicant's unconscionable conduct claim, we have found that in all but one of them, one or more of the indicia of unconscionable conduct by a lessor set out in section 62B(3) of the RL Act can be discerned. It is only in relation to the seventh matter in the list that we made no such finding. 204 As Mr Angyal correctly submitted, however, the conduct of a lessor is not established as unconscionable under the Act merely because one or more of these indicia are 'enlivened'. An additional criterion must also be satisfied. The conduct in question must also be shown to involve a 'high degree of moral obloquy' and to be 'highly unethical' (to quote from the judgment of Spigelman CJ in Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; 63 NSWLR 557 at [121]), or at least to involve 'some degree of moral tainting… that permits the opprobrium of unconscionability to characterise [it]' (to adopt the terminology of Allsop P in Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 at [293]). An associated observation (in the same paragraph) by Allsop P about Spigelman CJ's use of the phrase 'a high degree of moral obloquy' may be noted: 'Whether that is too stringent and whether "significant" or "real" may be preferable need not be decided.' 205 We agree with Mr Fernon's submission that the conduct of the Respondent, a corporation, must be the focus of investigation, rather than the conduct of any individual employee or employees of the Respondent. It follows, as we have indicated above, that the Respondent may be found to have used 'unfair' tactics (within the context of section 62B(3)(d)), or to have acted 'unreasonably' (within section 62B(3)(i)(i)), even though no finding of unfairness or unreasonableness is made against one or more of its employees. 206 In addition, we reject a broad submission by Mr Angyal to the effect that unless a finding of bad faith is made against a lessor, or the relevant employee of a corporate lessor, there can be no finding of unconscionable conduct against the lessor. He was not able to cite to us any statement to this effect by a court or a tribunal. This proposition appears to us to be at odds with the status of paragraph (k) of section 62B(3) - referring to 'the extent to which the lessor and the lessee acted in good faith' - as only one of the indicia of unconscionable conduct. We have not in fact made a finding of lack of good faith against the Respondent, let alone against any of its employees. 207 Nevertheless, we have reached the conclusion, having regard to the foregoing matters, that between February 2002 and July 2005 various aspects of the conduct of the Respondent with regard to the 2002 Height Restrictions were unconscionable vis-à-vis the Applicant. The Respondent, through a number of its employees, engaged in a course of conduct whereby, after disseminating these Restrictions as part of a 'code' for the Centre, it made use of its superior bargaining power to block any attempt by the Applicant to obtain acknowledgement of their true impact, approved without notification to the Applicant the erection of three kiosks infringing them, sought to justify each approval by subsequently amending the Restrictions in a radical manner and refused to grant any continuing rent relief on account of the impact of the three kiosks on the Applicant's business. On these grounds, the Respondent's behaviour, in our judgment, was 'highly unethical' and had a sufficient 'degree of moral tainting' to permit 'the opprobrium of unconscionability to characterise it'. 208 For reasons that we will now explain, our conclusion regarding the impact of this conduct on the Applicant's business is that it was a good deal less serious than the Applicant alleged. But this is not enough of itself to undermine our conclusion that the Respondent acted unconscionably.

209 Subsections (8) and (9) of the RL Act state:- (8) A lessor or lessee, or former lessor or lessee, who suffers loss or damage by reason of unconscionable conduct of another person that is in contravention of this section may recover the amount of the loss or damage by lodging a claim against the other person under section 71A. (9) If the matter of such loss or damage arises in connection with a matter the subject of proceedings in the Tribunal, the Tribunal may proceed to decide it, and in so doing may award such sum as it thinks fit. 210 Section 72AA(1) states that in an unconscionable conduct claim the Tribunal may make 'any one or more of the following orders that it considers appropriate':- (a) an order that a party to the proceedings pay money to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person, (b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings. 211 At T19, the Tribunal outlined as follows the contents of a 'Summary of Applicant's Claim for Damages and Relief Sought' that the Applicant filed on or about 10 February 2010:- (a) It does not press its claim under s10 of the RLA (for $400,000 for refurbishing the expanded Surf City premises); (b) In respect of the s34 claim (and, I gather, the quiet enjoyment claim) it claims lost gross profit result from lost sales, which profit exceeds the Tribunal's jurisdiction, so the Applicant seeks $400,000; (c) Under the alteration of lease claim, the Applicant claims 10% of rent paid from 10 August 2002 to 28 February 2007. The total rent paid was $2,187,779.90 so the claim is $218,777.99, with interest. (d) For the unconscionable conduct claim the Applicant seeks: (i) The lost value of its business entitlements to brands addressed at $250,000; (ii) The value of rent and outgoings paid from 1 September 2006 to 28 February 2007; being $53,049.88 x 6 = $388,299.28. (iii) $400,000, as the total of these damages exceeds that figure. (iv) An order by way of defence to the claim by the Respondent, that no rent on other amounts are payable pursuant to the lease as sought by the Respondent. 212 As already explained, the claim described in paragraph (a) was withdrawn and the claims in paragraphs (b) and (c) were unsuccessful. 213 In his written submissions relating to the second appeal hearing, Mr Fernon, having drawn attention to this passage in the Tribunal's decision, set out in the following terms a revised summary of heads of damage relating to the Applicant's 'narrower unconscionable conduct claim':- (a) The lost gross profits from lost trade… which exceed $400,000; and/or (b) The lost value of its business at $250,000 or alternatively $100,000. 214 Mr Fernon maintained in addition that because the Respondent's unconscionable conduct made it impossible for the Applicant to pay the rent due under the Lease, the Respondent's claim for unpaid rent should be dismissed. 215 In his written submissions relating to the second appeal hearing, Mr Angyal argued that the only kinds of loss with respect to which the Applicant might be granted monetary relief under its unconscionable conduct claim should be those defined in subparagraphs (i) to (iv) of paragraph (d) of the Applicant's 'Summary'. He added that it would be 'grossly unfair to the Respondent for the Applicant to be permitted, in its submissions in an appeal, to recast its damages claim'. He maintained also that because the Applicant did not appeal against the Tribunal's decision upholding the Respondent's claim for unpaid rent, the Applicant could not now assert that this claim should be 'dismissed'. He also maintained, however, that the proper approach to assessing the quantum of any relief available to the Applicant would be to ascertain 'the pecuniary impact (if any) on the Applicant's business' of any conduct found to be unconscionable. 216 We do not accept Mr Angyal's argument in so far as it would debar the Applicant from seeking to recover damages for the Respondent's unconscionable conduct assessed by reference to the profits that it lost by virtue of any diminution of its trade caused by this conduct. Our reasons are as follows: (a) the Respondent was required to meet a claim, and indeed successfully opposed, a claim under section 34 for damages assessed in this manner; (b) a significant component of the Respondent's evidence relating to damages, including the affidavit of Mr Bell admitted at the second appeal hearing, was addressed to the matter of the Applicant's alleged loss of profits; and (c) the Respondent acknowledged that any damages awarded to the Applicant should be by way of compensation for the 'pecuniary impact (if any)' of its conduct. 217 Mr Angyal submitted that because no appeal was lodged against the Tribunal's order upholding the Respondent's claim for unpaid rent, an order simply 'dismissing' this claim was not open to us. We observe here, however, that as noted above at [14], the Applicant's Notice of Appeal did include an appeal against this order of the Tribunal. 218 A strongly contested question, both at first instance and on the appeal, was whether the Applicant had established any causal link at all between the relevant conduct of the Respondent and economic harm such as the Applicant claimed to have sustained. 219 In a passage at T242, which we reproduced at A314, the Tribunal held that the Applicant had failed in this regard. It said:- Given that all the Applicant's claims have failed, I do not assess as an appropriate exercise, to seek to unravel the evidence as to quantum, particularly concerning any lost profits by the Applicant and the value of the Surf City business. Nevertheless, I do find that the Applicant has not proved any causal link between conduct by the Respondent and any loss or damage suffered by the Applicant… 220 At A316 to A318, we expressed the opinion that the Tribunal's treatment of the question of causation, and also of assessment of damages, was 'brief' because 'its overall decision was against the Applicant', and we gave leave for these questions to be revisited at the second appeal hearing. 221 Having reviewed the evidence and argument relating to the question of causation, considered in isolation, we have concluded that we must respectfully differ from the Tribunal. In our opinion, the 'correct and preferable decision' on this specific question (which we must seek to determine, pursuant to section 115 of the ADT Act) is that, on the balance of probabilities, the conduct of the Respondent that we have held to be unconscionable did cause the Applicant to sustain some measure of economic loss through making the signage at the front of the Premises less visible to potential customers approaching from the car park entrance and thereby reducing to some extent the amount of the Applicant's gross takings. 222 In his written submissions relating to the second appeal hearing, Mr Angyal argued that in assessing the financial consequences (if any) for the Applicant of the Respondent's unconscionable conduct, the amount to be ascertained should be the difference between:- (a) The pecuniary impact (if any) on the Applicant's business of the obstruction to sight lines (if any) caused by the blade sign on the Boost Juice kiosk; and (b) The pecuniary impact (if any) on the Applicant's business of the obstruction to sight lines (if any) that would have been caused by a hypothetical suspended sign or signs above the Boost Juice kiosk. 223 We agree with this formulation in so far as it maintains that it would be incorrect for us to compare the pecuniary impact of any interference with sightlines caused by the presence of one or more structures contravening the 2002 Height Restrictions with the situation that would have obtained if there hade been no structures whatsoever interfering with these sightlines. Our reasons are that these Restrictions did permit the erection of 'overhead' signs, which at least had the potential to interfere with sightlines, and that at the commencement of the Lease there were signs of this type above the then-existing B-Zone kiosk. 224 In our opinion, it would in fact be appropriate to treat the interference (if any) caused by the sign above the B-Zone kiosk as the starting-point for the relevant comparison. When entering into the Lease, the Applicant must be taken to have accepted the consequences of any interference to sightlines caused by this kiosk. To invoke instead, as Mr Angyal's formulation sought to do, a concept such as 'a hypothetical suspended sign or signs' would be both impractical and at odds with the true situation between the parties. 225 A further significant amendment to be made to this formulation is that in addition to the blade sign that formed part of the Boost Juice kiosk, the components of the Telechoice and the Love Salad kiosks that infringed the 2002 Height Restrictions must be taken into account. 226 For these reasons, the question of causation (as distinct from quantification of damages) may be answered by determining whether, on the balance of probabilities, there was any material difference at all, adverse to the Applicant, between: (a) The pecuniary impact (if any) on its business of the obstruction to sight lines (if any) caused by the blade sign on the Boost Juice kiosk and the components of the Telechoice and Love Salad kiosks that infringed the 2002 Height Restrictions; and (b) The pecuniary impact (if any) on its business of the obstruction to sight lines (if any) that was caused by the sign suspended above the B-Zone kiosk. 227 In our opinion, this question must be answered in the affirmative, for the following reasons. 228 First, three witnesses called by the Respondent - Mr Stephens, Mr Terrill and Ms Radosevic - made statements in their evidence that, considered in conjunction, provide significant support for this view. 229 During cross-examination (see Transcript, 16.9.09, p 11, line 18 to p 12, line 8), Mr Stevens acknowledged that sightlines towards a shop were important because they encouraged customers to go into the shop and that Shop 417, by virtue of its position on level 4, had better sightlines than many other shops. The following exchange then ensued:- Q. And it follows, does it not, Mr Stevens, that if any action was taken that would detrimentally affect those sightlines that would also detrimentally affect the flow of customers to the store, correct? A. It may well do. Q. And that in fact is something that is well recognised by Westfield in its own guidelines, is it not? A. It is. 230 In his affidavit, Mr Terrill included 'loss of visibility', along with 'congestion during peak times, noise and the unsuitability of a food kiosk' in a list of factors that 'could contribute materially to loss of prime time sales essential to maintain sufficient sales to cover high occupancy and business running costs'. In cross-examination (Transcript, 21.5.09, p 41, lines 1 to 11), he assented to the proposition that 'a reduction in sight lines to a shop can have a detrimental effect to the trading performance of the business in the shop', though he qualified this response by saying that it would depend on whether the relevant obstruction to sightlines occurred at 'the key point of vision or focus' on the shop. 231 With reference to photographs taken during 2005 and 2006, Ms Radosevic expressed the following significant opinions during cross-examination (see T169 and A64):- (a) One of the November 2006 photos, taken in front of the Telechoice kiosk at the south eastern end looking north and showing the Optus blade sign presented "considerably worse" sightlines (to Surf City) than a photo of the B-Zone kiosk, included in the material attached to her report, taken near the south eastern corner and looking generally north; (b) One of the August 2005 photos taken a few metres south of the Love Salad kiosk, roughly in line with the walk-through line which she had sought to simulate in her Rivet exercise "substantially inhibits the sightlines towards the Surf City store in that position"; (c) In one of the August 2005 photographs taken close to the south western corner of the Love Salad kiosk looking north, "the Boost Juice sign on the left hand side provides a substantial impediment... to the Surf City sign"… 232 This testimony by Ms Radosevic, it should be noted, expressly took into account the interference with sightlines that was caused by the B-Zone kiosk. 233 Secondly, the evidence of the Applicant's expert witness, Mr Standley, included the statement (see T175 and A62) that 'the material interference with the visibility of shops 415 to 417 would interfere with the ability of the Lessee to maximise or deliver sales'. 234 Thirdly, we refer to the memorandum sent by Mr Mimis to Mr Roberts on 12 November 2002 (reproduced at T44 and A39). In that memorandum, Mr Mimis asserted that he could not afford to have the Applicant's trade impeded by kiosks near the Premises (including the newly constructed Boost Juice kiosk) unless the 'premium rent' that it currently paid was 'addressed'. He also acknowledged that the recent demolition of the B-Zone kiosk had led to a 'significant increase' in sales. Mr Angyal relied on these statements in support of a submission (which we have rejected) that Mr Mimis's 'real motivation' in complaining about sightlines was his concern that the Applicant would not be able to afford the increased rent payable under the Lease. An aspect of this memorandum, which Mr Angyal did not query, was however its claim that the removal of the B-Zone kiosk, with the consequence that sightlines from the car park to the Premises were improved, had the effect of improving the Applicant's sales as well. 235 Finally, we would maintain that it is counter-intuitive to suggest, having regard particularly to all the expert and non-expert evidence given on this topic in the present proceedings, that the presence of structures that interfere to any material extent with sightlines along a much-used walkway towards a shop in a retail shopping centre will have no impact whatsoever on the flow of customers to the shop, and will therefore have no impact whatsoever on the sales achieved in the shop. To accept a proposition in these terms would fly in the face of what we may fairly describe as 'conventional wisdom'.

Assessment of damages 236 We have found the resolution of this matter to be the most difficult of all the tasks that have confronted us in this case. The evidence on quantification of damages put before the Tribunal and before us was detailed and voluminous. It chiefly comprised financial statements relating to the Applicant's business, both in the Premises and in a neighbouring shop in which it traded until July 2004. By contrast, the submissions (compared with those advanced on the issues relating to liability) were comparatively brief. We are bound to state that in determining an amount to be awarded to the Applicant we did not derive a great deal of assistance from this material. 237 We have decided since the second hearing of the appeal that a methodology for assessing damages that did not receive any significant attention in the evidence or the submissions should be adopted. 238 It would of course have been preferable for us to hear submissions about the appropriateness of this methodology. But since the parties have had the opportunity to address the question of assessment of damages on three separate occasions - once before the Tribunal at first instance and twice during the appeal - we do not think that the disposition of these excessively lengthy proceedings should be further delayed by any further hearing or by the receipt of further written submissions. An additional reason for this conclusion is that, as will become apparent, the approach that we are adopting focuses on a topic that featured prominently in the parties' negotiations during in the Lease and in the proceedings themselves - namely, the Applicant's claim for abatement of the rent payable under the Lease. 239 As indicated above, the Applicant claimed in the second appeal hearing that its loss should be assessed by reference to the following categories: (a) the lost gross profits from the loss of trade caused by the Respondent's unconscionable conduct; (b) the lost value of its business; and (c) the amount of the unpaid rent for which it had been held liable to the Respondent. 240 We accept that damages within the first of these categories would prima facie be appropriate under section 62B(8) of the RL Act. To award such damages would accord with Mr Angyal's proposition, involving a comparison of the 'pecuniary impacts' on the Applicant's business of two different configurations of kiosks near the Premises. It would also accord with our revised version of this proposition. 241 For three reasons in particular, however, we believe that the evidence relating to the Applicant's financial performance at the Premises since the commencement of the Lease fell significantly short of what was needed to quantify any loss of profits caused by the Respondent's unconscionable conduct. This evidence did not establish either (i) that the diminution in these profits during the Applicant's occupation of the Premises was wholly attributable to this conduct of the Respondent (as Mr Fernon argued) or (ii) that this conduct had no impact at all on the Applicant's profits (as Mr Angyal argued) or (iii) most importantly, what proportion of the decline in profitability should be held attributable to this conduct. 242 In explaining the first of our three reasons for this conclusion, it is useful to begin by quoting comments that we made in the first appeal decision (at [208] and [209]) regarding the Applicant's comparative sales figures for each quarter between January 2001 and June 2007:- 208 Relevantly, these figures showed increases in gross takings for most quarters, compared with the equivalent quarter in the preceding year, during the period between 1 July 2002 and 30 June 2004. An explanation for this, on which the expert witnesses agreed, was the increase, in July 2002, in the size of the Applicant's trading premises, due to the addition of Shop 417. But the turnover in virtually every quarter thereafter - that is, between 1 July 2004 and 30 June 2007 - was distinctly less, and sometimes very much less, than the turnover for the equivalent quarter of the preceding year. 209 This decline in sales may be sufficiently illustrated by saying that the total sales figures for the fiscal years 2002-03, 2003-04 and 2004-05 were respectively $2,268,737, $2,245,972 and $1,529,752. The amount by which the sales figures decreased in 2004-05 was accordingly $716,220, representing 32% of the figure achieved in 2003-04. 243 At [257], we commented further as follows:- 257… These [sales figures] show that the decline in the Applicant's takings which [Mr Fernon] claimed to be of great importance did not commence until the third quarter of 2004, more than 18 months after the Boost Juice kiosk was erected. On the basis of these figures, the erection of this kiosk alone would appear not to have had a significantly detrimental effect on the Applicant's trade. Instead, the downward trend in its sales did not commence until more than a year after installation of the Telechoice kiosk in May 2003. This trend became more pronounced after the installation of the Love Salad kiosk in February 2005. 244 In paragraph 7 of an affidavit sworn for the purposes of the second appeal hearing, Mr Bell, who was one of the Respondent's expert witnesses, observed that what we called the commencement of 'the downward trend' in the Applicant's sales did not occur immediately after, or even within the period of a few months after, the erection of any of the three kiosks. He stated:- 7.16 My analysis… shows that there was no apparent detriment to sales following the opening of the Boost Juice and Telechoice Kiosks… 7.18 I refer to the decline in sales in the September 2004 and December 2004 quarters [i.e. the third and fourth quarters of 2004] and note that this decline began: 7.18.1 Approximately 20 months after the opening of the Boost Juice kiosk and 12 months after the opening of the Telechoice kiosk; and 7.18.2 Approximately 7 months prior to the opening of the Love Salad kiosk (which opened February 2005). 245 These specific passages in Mr Bell's affidavit were not challenged during cross-examination at the second appeal hearing. 246 What this material indicates is that the Applicant's assertion of a substantial overall decline in the profitability of its business on account of the erection of the kiosks is not backed up at all by financial data showing that the erection of any of them had an immediate, or briefly delayed, negative impact on its turnover. There appears to have been no correlation in time between the erection of a kiosk and a decline in turnover. 247 Our second reason is a matter mentioned in the Tribunal's decision and at a few places in the evidence. It is that in or about April 2004, approximately three months before the commencement of the major decline in the Applicant's sales, the Applicant ceased selling two prominent brands of surf wear, namely Billabong and Mambo. 248 The Tribunal, having mentioned this occurrence at T50, referred to it again at T242 as a 'suggested' cause of the failure of the Applicant's business, but expressly refrained from expressing an opinion about this suggestion. 249 In his affidavit, Mr Bell stated (at para 7.17) that 'importantly' the commencement of the major decline in the Applicant's sales 'coincides with' its 'apparent cessation of purchases of Billabong and Mabo brands of surf wear from around April 2004'. In cross-examination, however, he acknowledged that he did not have any experience in the operation of businesses in the surf industry or 'any particular experience of a brand affecting a store in sales' (Transcript, 21 June 2012, p 9, lines 45-46). 250 Further significant testimony on this question was given by the Applicant's expert witness, Mr Standley. As summarised at T177, his answers to questions from non-judicial members at the Tribunal hearing included the following two propositions:- … (c) The loss by a shop of the right to sell a particular brand in a shopping centre would have a significant effect on the shop. (d) His reference to "high fashion" in relation to the business of Surf City had been made in the sense "… the term high fashion in surfwear would denote the key brands…" and "… a business such as Surf City is very, very brand dependent…" 251 In contesting the proposition that the loss of these two brands caused the decline in the Applicant's business, Mr Fernon pointed to a statement by Mr Terrill in cross-examination (Transcript 21.5.09, p 52, lines 18-19) to the effect that the loss of a brand such as Billabong 'could be picked up with the other brands'. Mr Fernon relied also on the fact that although the Applicant had lost the Billabong brand a potential buyer (Mr Gunn) appeared in October 2006 to be willing to pay $250,000 for the business. 252 Undoubtedly, the evidence as to the likely impact of the loss of these two brands on the Applicant's trade is far from conclusive. But it is significant that the Applicant's own expert witness, Mr Standley, described its business as 'very, very brand dependent'. The possibility that this event in April 2004 was a contributing cause of some significance to the pronounced decline in turnover commencing in or about July 2004 cannot be discounted. 253 Our third reason is that the Applicant provided nothing in the way of evidence or argument to assist us in evaluating the possible impact on the Applicant's business of some external factors to which we drew attention in the first appeal decision at A324. In that paragraph, we wrote:- 324 Furthermore, in its submissions to us so far, the Applicant has not pointed to any evidence in this case of the kind that in other comparable situations has assisted a court or tribunal to determine the extent, if any, to which such interfering factors have in fact impaired the trade of a lessee and to award damages accordingly. For instance, our attention has not been drawn to any evidence, expert or lay, on the question whether customers of retail businesses selling street clothing and clothing and accessories for surfing, skating and snow sports were frequently 'impulse' or 'casual' buyers, or more often would decide in advance both that they wished to buy such goods and what shop they would visit. Clear sightlines would be more important in the former situation than in the latter. We have not been made aware of any evidence of trends, upward or downward, in the number of customers to whom the Applicant sold goods (as opposed to the amounts that the Applicant received from these customers). There appears to us equally to have been no evidence of trends, upward or downward, in the trading fortunes of other similar retail businesses within the general neighbourhood of the Centre. 254 Furthermore, with reference to the last of these matters, Mr Terrill stated in his report that the 'surf retail category' had 'experienced slower sales over the 2006 period'. As far as we can discern, this was not challenged by the Applicant. 255 We agree with Mr Fernon that a number of other suggestions as to the reasons for the decline in the Applicant's sales do not carry much weight. Criticisms by Mr Terrill of the range of products, visual presentation, customer service and management standards that he perceived when inspecting the Premises were sufficiently answered by Mr Fernon's argument that this inspection occurred when the Applicant's business was only a few months away from closure. The evidence regarding the impact of the closure (during April 2004) of the Applicant's nearby business at Archer Street was equivocal. 256 Our overall assessment, however, of the evidence and submissions on which the Applicant relied is, as we have already stated, that it has failed to establish either that the substantial decline in its turnover and profitability following construction of the Boost Juice kiosk was wholly attributable to the conduct of the Respondent that we have held to be unconscionable or, most importantly, what proportion of this decline, even in broad terms, can properly be held to have been caused by this conduct. Although, in a passage from a High Court decision quoted below, it has been held that when evidence as the amount of alleged lost profit is inconclusive, a court or tribunal may have to engage in 'guess work rather than estimation', the range of possibilities left open by the evidence is too wide to permit us simply to 'guess at' a figure. 257 The Applicant's claim for damages within the second category - the loss of the value of its business - could only be sustained if the evidence showed that a decline in the profitability of the business brought about by the Respondent's unconscionable conduct was of a sufficient scale to cause the business to fail completely. But as we have just said, the evidence was insufficient to support any finding at all as to the amount of lost profit. It follows that there can be no award of damages based on the value of the business. 258 As to the third category, we see no warrant for an order totally relieving the Applicant from its liability for rent. We may add that equally we do not understand the grounds on which, in its 'Summary of Applicant's Claim for Damages and Relief Sought' filed on or about 10 February 2010, the Applicant sought an award representing the value of rent and outgoings that it had paid from 1 September 2006 to 28 February 2007. 259 Our rejection of the Applicant's arguments on quantification of damages does not preclude our adoption of the different methodology that we have foreshadowed. We have decided that the order that we should make under section 72AA of the RL Act should take the form of an order reducing the amount of rent payable under the Lease. 260 An important reason for this is that a significant component of the conduct of the Respondent that we have held to be unconscionable was its refusal to grant continuing rent relief to the Applicant, despite the Applicant's concerns, conveyed on numerous occasions commencing as early as August 2002, about the adverse consequences of contravention of the 2002 Height Restrictions. As was indeed emphasised by Mr Angyal (see in particular [128 - 130] above) , the main response to its complaints that the Applicant sought to elicit from the Respondent was a willingness to reduce the rent. If indeed the Respondent had granted a continuing rent reduction of any significance, we would have been reluctant to characterise its conduct as unconscionable. 261 These observations accord with an important aspect of our decision on liability in this case. We did not decide that the Respondent was bound by a contractual obligation to the Applicant to require that any kiosk established close to the Premises should comply with the 2002 Height Restrictions. In the first appeal decision, we upheld the Tribunal's rejection of an argument along these lines, based on the handwritten amendment made by Mr Mimis to the memorandum of lease prepared on the Respondent's behalf. If the Respondent had been bound by any such obligation, its approvals of the plans for the three kiosks would in each case have been a breach of contract, and liability to pay damages, assessed according to normal contractual principles, would have followed as a matter of course. 262 Our finding of unconscionable conduct against the Respondent was instead dependent on proof of a continuing course of conduct, extending beyond the approval of contraventions of the 2002 Height Restrictions so as to include also the Respondent's refusal to acknowledge that contravention had occurred, its reliance on a greatly liberalised version of the Restrictions that it issued in 2005 and, as we have just pointed out, its refusal of rent relief. 263 It is at least arguable that because the Respondent's liability for unconscionable conduct differs in these significant respects from simple contractual liability, an award of damages for lost profits, such as would normally follow from a finding of breach of contract, would not be appropriate in this case. But we do not need to pursue this question, since there were, as we have already indicated, quite different grounds for rejecting the Applicant's claim for damages for loss of profits. 264 It is for these reasons that the order that we now make under section 72AA of the RL Act is one directed solely at reducing the amount of rent and interest payable by the Applicant to the Respondent. 265 The questions remaining are (a) what amount or proportion of the rent payable should be the subject of abatement and (b) over what period should the abatement occur. 266 With regard to the first of these questions, we derive guidance from the fact that as at March 2002, when negotiations for the Lease were in train, the current minimum rent paid by the Applicant for Shops 415 and 416 was $229,200 per annum and the current minimum rent for Shop 417, being then payable by the tenant preceding the Applicant, was $169,900. The evidence for this is contained in an internal document of the Respondent, headed 'Business Case Recommendation' and dated 13 March 2002. The total of these two amounts is $399,100. 267 In the same document, it was noted that the minimum rent being proposed for the Lease being negotiated for all three Shops was $427,500. This was in fact the amount ultimately agreed on, with provision for annual increases calculated by reference to the CPI and for an additional percentage rent based on turnover. 268 In this document, it was also noted that the 'Surplus to Current Rent' that would then be generated would be $28,500. This represents 7% of the rent being obtained by the Respondent under the two earlier leases and 6.7% of the rent due under the Lease. 269 It was claimed by Ms Mimis-Weeks and indeed acknowledged in the testimony of witnesses called by the Respondent - for example, its expert witness, Mr Terrill (see Transcript, 21.5.09, p 41, lines 28 to 36) - that the shop premises formed by combining Shops 415 and 416 with Shop 417 occupied a 'premium site' on Level 4 of the Centre because of its position at one end of the north-south walkway leading from the car park entrance. This was the case even though at the time of commencement of the Lease the B-Zone kiosk interfered to some extent with the sightlines from the walkway. 270 It is legitimate, in our opinion, to treat the 'surplus' amount of $28,500 within the rental figure of $427,500 stipulated in the Lease as reflecting, at least to some degree, the additional value of the site occupied by the Premises by virtue of its 'premium quality'. This value was diminished by the interference to sightlines caused by the erection, over the ensuing period of about 30 months, of the three kiosks about which the Applicant complained. 271 Mr Terrill's evidence effectively confirmed these two matters. In cross-examination (Transcript, 21.5.09, p 41, lines 39 to 47), he acknowledged that 'subject to a consideration of the impact of the kiosks a landlord could charge a premium or higher rent for shops 415 to 417 because of that positioning at the end of a corridor' and that 'in light of the erection of the three kiosks and their signboards there's some interference with what would otherwise be an excellent line of sight directly ahead to 415 to 417'. 272 The evidence of another expert witness called by the Respondent, Ms Radosevic, included statements in cross-examination (see T169 and A64) making it clear that, in her view, the overall impact of the three kiosks was to interfere more significantly with the sightlines than the B-Zone kiosk had done. 273 The Respondent chose, however, to reject the Applicant's requests for rent relief on account of this interference. This rejection constituted, as we have said, one of the grounds for our finding of unconscionable conduct. If the Respondent had been prepared to, in effect, surrender to the Applicant a significant segment of the 'surplus' annual rent of $28,500 that it had secured by entering into the Lease, we would, as we have said, have been reluctant to make this finding. 274 In determining what annual amount of rent foregone would have been sufficient for this purpose, we receive no specific guidance from the evidence or from legal principle. We must simply abide by a well-known pronouncement (to which Mr Fernon referred us) contained in the judgment of Mason CJ and Dawson J in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83:- The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann (1971) 124 CLR 303 at 308, Menzies J went so far as to say that 'assessment of damages… does sometimes, of necessity, involve what is guess work rather than estimation'. Where precise evidence is available the court must do the best it can. 275 Although this passage relates to damages for breach of contract, not for unconscionable conduct under the RL Act, the broad message that it conveys is, we believe, applicable to the latter category of case. 276 Doing 'the best we can', we conclude that an offer by the Respondent to 'surrender' 50% of this annual minimum rent 'surplus' of $28,500 - i.e., $14,250 - during the period after the Boost Juice kiosk was constructed would have been sufficient to ward off any finding of unconscionable conduct and is accordingly appropriate for present purposes. 277 As indicated at T21, the Respondent's cross claim for unpaid rent and outgoings related to (a) the period of almost exactly five years between the commencement of the Lease on 2 July 2002 and the Applicant's vacating of the Premises on 28 June 2007 and (b) a further period until the commencement of rent payments under new leases on 24 September 2007 (Shops 416 and 417) and 1 November 2007 (Shop 415). In approximate terms, a period of 5 years and 4 months is involved. 278 The amount to which the Applicant should be entitled, with respect to the loss occasioned by the Respondent's refusal to grant rent relief, is accordingly $14,250 x 5.3333: i.e., $76,000. The Applicant should also receive interest on this sum. 279 As noted near the commencement of these reasons, the Tribunal, in its principal decision (Spuds Surf Chatswood Pty Ltd v PT Ltd (No 2), PT Ltd v Spuds Surf Chatswood Pty Ltd [2011] NSWADT 152), upheld the Respondent's cross claim against the Applicant and ordered that the Applicant was to pay $327,633.55 on account of unpaid rent and outgoings (plus interest) to the Respondent. 280 If that amount has already been paid, the order that we now make will operate an order that the amount of $76,000 plus interest (calculated in the same manner as under the Tribunal's order) should be refunded to the Applicant, pursuant to paragraph (a) of section 72AA(1) of the RL Act. If it has not been paid, our order will take effect as an order under paragraph (b) that the amount of $76,000 plus interest is not due or owing under the Tribunal's order, or alternatively an order under paragraph (a) that this amount is now to be paid by the Respondent to the Applicant (thereby permitting set-off of the smaller debt against the larger). 281 In its second decision (Spuds Surf Chatswood Pty Ltd v PT Ltd (No 3), PT Ltd v Spuds Surf Chatswood Pty Ltd (No 2) [2011] NSWADT 186), the Tribunal held that the amount of interest to be paid by the Applicant to the Respondent, being pre-judgment interest from 23 April 2008 to 3 August 2011), was $92,811.46. 282 The amount of interest payable by the Respondent to the Applicant under our order should therefore be $76,000 x 92,811.46 divided by 327,533.55. The resulting figure for interest is $21,535.72, and the total amount to be paid under our order is $97,535.72.

Costs 283 In its second decision, the Tribunal ordered that the Applicant should pay the Respondent's costs of both proceedings (065171 and 085081) on a party-party basis. That order is the subject of an appeal ('the costs appeal') filed by the Applicant on 31 August 2011 (file 119042). The Registrar of Retail Tenancy Disputes has intervened in this appeal. 284 Following the institution of the costs appeal, the parties and the Registrar filed written submissions relating to it. 285 At the commencement, on 17 November 2011, of the first hearing of the principal appeal, it was directed, with the consent of the parties, that the determination of the costs appeal should be deferred pending disposal of the principal appeal. 286 A further matter now requiring determination is the costs of the principal appeal. The parties have indicated that they wish to be heard on this matter. 287 The following directions are accordingly given, relating both to the costs appeal and the costs of the principal appeal:- (a) Within 28 days of the date of this decision, the Appellant is to file and serve: (i) its supplementary submissions relating to the appeal in file 119042; and (ii) its submissions relating to the costs of the present appeal (file 119034). (b) Within a further 28 days, the Respondent is to file and serve submissions in reply. (c) The Appellant's and the Respondent's submissions relating to the appeal in file 119042 are to be served on the Intervenor in that appeal (the Registrar of Retail Tenancy Disputes) as well as on the opposing party. (d) Any submissions by the Intervenor relating to the appeal in file 119042 are to be filed and served within 21 days after service of the Respondent's submissions. (e) These questions regarding costs will be decided 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel determined that a hearing should take place. This decision is amended pursuant to s87 of the Administrative Decisions Tribunal Act this 5 March 2013. The paragraphs amended are [14] [215] [217] and [280]

Amendments 05 March 2013 - slip rule s87 of the Administrative Decisions Tribunal Act Amended paragraphs: 14, 215, 217, 280 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 March 2013