71 I find that at the time Mr Stocks spoke to Mr Edwards, the latter was under very considerable pressure to find tenants for Northgate and that he was prepared to exaggerate the position in order to succeed. His evidence about what he said and did was contradictory and unreliable.
72 Mr Ellwood gave his evidence by videolink from Perth, Western Australia, where he is employed as a property manager. In his evidence-in-chief he said that he recalled meeting Mr Stocks but had no specific memory of any particular meeting. He said he was unaware of a concept called Super K and that his understanding of the Coles' intended operation at Northgate was that it was going to be a supermarket with a number of aisles for variety goods. I do not accept this evidence for it is contrary to the publications authorised by his employer and to which I have referred. Mr Ellwood said that his understanding was that Venture was not a prospective tenant after its withdrawal. He also said that for about six months there were unsuccessful negotiations to set up a Tattslotto agency in a kiosk and that around July 1986 some foot traffic numbers were obtained from a "professional organisation".
73 In cross-examination Mr Ellwood accepted that his memory of events would have been better at the time he wrote a memorandum to Mr Edwards following receipt of the letter from the plaintiffs' then solicitors. However, most of that memorandum is written in terms of what the position would have been rather than what it was, speaks in generalities and does not deal specifically with the issues arising out of the alleged representations.
74 Generally speaking however, the substance of Mr Ellwood's evidence-in-chief was unaffected by the cross-examination due to his inability to recall any specific conversations with people, but Mr Ellwood did say that if prospective tenants asked if Venture was going into the centre, it was his practice to explain that they had a proposal from Venture at one stage, but it had been withdrawn. Having regard to the matters I canvassed when dealing with the cross-examination of Mr Edwards, I treat this answer with considerable scepticism. Further, it is improbable that Mr Ellwood would have left the matter there having regard to the significance of securing Venture as a major tenant and having regard to the fact that at about the time he saw Mr Stocks Mr Edwards was due to re-approach, or had just re-approached, Venture and that this had given Mr Edwards hope that the Venture project might be resurrected.
75 However, I find that generally speaking there was little in the evidence given by Mr Ellwood that was of assistance in the resolution of the issue as to whether the alleged representations were made.
76 Mrs Stocks gave evidence, but nothing material to this issue. She said, and I accept, that the whole business has been very traumatic for her and that she had blocked a lot of it out of her memory. However, the evidence given by Mr Shea is of assistance upon the resolution of the issue as to whether the representations were made.
77 In 1986 Mr Shea and his wife were the proprietors of a shoe shop at 348 Main Road, Glenorchy trading under the name of Pee Cee Shoes. Mr Shea said that in early 1986, Mr Ellwood approached him and asked if he would be interested in moving into Northgate. Mr Shea was interested provided the conditions, including the identity of the major tenants, period of lease and rental, were satisfactory to him.
78 He said that he saw Mr Ellwood in the offices of Edwards Windsor on several occasions. He said that Mr Ellwood told him that the major tenants would be Coles Super K and Venture and that they had both signed a lease. He said that Mr Ellwood also told him that there would be 50,000 people a week going through Northgate and that there would be a Tattslotto kiosk. He said that he was also told by Mr Ellwood that all the shops had been let.
79 Mr Shea produced his copy of the tenancy works booklet. On the plan of the layout of Northgate in the booklet, Mr Shea had written the names of various traders. He had drawn a line dividing the space marked for major tenant 2 into two parts, apportioned roughly two-thirds and one-third. In the larger space he had written "Venture" and in the smaller space, "BE". The minutes of a site meeting held on 10 March 1986 show that Mr Bruce Eaton was interested in becoming a tenant as Loughrans had withdrawn its interest. By 6 May 1986 Mr Eaton confirmed his interest but not for the whole of the area marked major tenant 2. Eventually, Mr Eaton took a lease of about one-third of major tenant 2, roughly corresponding to the line drawn by Mr Shea on the plan in his tenancy works booklet.
80 Mr Shea said that he still believed that Venture was going into Northgate, albeit taking a smaller floor space than originally envisaged.
81 The difficulty about the lines and writing on Mr Shea's plan is that he was unable to say when he had written them on the plan, nor even if all the writing was done at the same time, except to state that it was written on the plan after he had signed his lease and a good while before the opening of Northgate in November 1986.
82 Whenever Mr Shea wrote "Venture" on the plan, it is likely that he wrote it as a result of Mr Ellwood telling him that Venture was a tenant or a prospective tenant. To that extent, his evidence corroborates Mr Stocks' evidence concerning statements made by Mr Edwards and/or Mr Ellwood about Venture being a tenant.
83 Mr Shea said that Mr Ellwood told him that tenants such as Sussan's, Just Jeans and others, whose names he could not remember, were going into Northgate. The minutes of various meetings show that those two operators, and a good number of others like them, were approached by Mr Ellwood and/or Mr Edwards and discussions were held, but many of them, including Just Jeans, came to nothing. This evidence by Mr Shea confirms the conclusion I have reached with respect to a tendency on the part of the defendant's agents to exaggerate the existing state of affairs in order to secure tenants.
84 Mr Shea said that after he had signed his lease and before the opening, Mr Ellwood told him that all the shops were let. His claim that Mr Ellwood told him that 50,000 pedestrians a week would go through Northgate was not challenged in cross-examination, nor was his evidence that Mr Ellwood told him there was going to be a Tattslotto kiosk, although I do not overlook the fact that his evidence did not specify when he was first told of either of these things.
85 Mr Millington leased a shop at Northgate that he called Millington's Menswear. He said that Mr Doug Fitzgerald took him and his wife through Northgate about three months before it opened. He said that Mr Fitzgerald told them that Coles were going to put in a store bigger than the existing one over the road, and that Venture were going into the space next to Coles. Mr Millington said that Mr Fitzgerald also told him and his wife that there would be a "stand alone Tattslotto" at Northgate. The substance of Mr Millington's evidence was not challenged.
86 Although it is clear that Mr Fitzgerald was not employed to manage Northgate until after any material representations had been made to Mr Stocks, Mr Millington's evidence of what Mr Fitzgerald told him generally supports the substance of what Mr Stocks said that Mr Edwards and/or Mr Ellwood told him. And it is worth noting that in cross-examination, Mr Stocks said that, right up until the opening of Northgate, Mr Fitzgerald told him that Venture was going into the centre, explaining that the fit-out of the store would take place after the opening.
87 Mr Palmer was another tenant at Northgate who gave evidence. He is a hairdresser. Mr Palmer said that he spoke to people at Edwards Windsor but did not identify who those people were. He said that "It was intimated or suggested that certain shops were going to be in the centre such as Coles and a variety-type store like K Mart. Venture was mentioned." Mr Palmer also said, "I also understood that we were to have a Tattslotto cubicle right in the area where I chose to have my shop." Finally, he said, "It was definitely stated that they expected in excess of 50,000 people per week."
88 None of Mr Palmer's evidence was challenged. Obviously it lacks the specificity of the evidence given by the other tenants, particularly with respect to the identity of the person or persons who made the representations other than that those persons were connected with Edwards Windsor. However, it does have some probative value in that it is to the same general effect as the evidence given by Mr Stocks and the other tenants.
89 Some parts of the evidence given by Mr Stocks were unreliable such as that concerning Christmas celebrations and promotions in Northgate immediately after the opening, and the accuracy of some figures that he put to Mr Edwards to claim a reduction in rent after he had been trading for a short while, but overall, Mr Stocks adhered to the account that he gave in evidence-in-chief with respect to the making of the pleaded representations; evidence that was supported in part, by the documentary evidence, by other witnesses called to give evidence in support of his case and, in the end, by the evidence given by Mr Edwards.
90 I find that at a meeting about the end of January 1986 between Mr Ellwood, Mr Edwards and Mr Stocks at the offices of Edwards Windsor, Mr Edwards and/or Mr Ellwood told Mr Stocks that Coles was committed to being the major tenant at Northgate and that it would operate a super store there. The evidence and the agreed facts do not permit me to make a finding as to the exact words used but, consistent with the written material published on behalf of the defendant's agents, the words conveyed the impression that the Coles store would be very large and would comprise a supermarket with a substantial area devoted to the sale of variety goods. The store was very large but did not have a substantial area devoted to the sale of variety goods.
91 I find that at the same meeting, Mr Stocks was told by the same people, that the estimated pedestrian traffic flow was approximately 50,000 people a week and that a Tattslotto agency would be established at a kiosk in the centre of the specialty shops area. The basis for the representation about the pedestrian traffic flow was Mr Edwards' unsubstantiated guess that the weekly traffic flow through Northgate would be twice the number that a competitor told him went through his centre each week. The evidence establishes that less than half the number represented by Mr Edwards went through Northgate each week. In a memorandum to the defendant written by Mr Allingham on 13 March 1987, Mr Allingham stated that, "It has been indicated to the writer that the pedestrian traffic through the Centre is in the order of 20,000 per week rather than the 40,000 - 45,000 stated in the Plant Location Study." Mr Shea complained to Mr Edwards by letter dated 13 March 1987 that, amongst other matters, the pedestrian traffic through Northgate was not as high as had been estimated. In his reply dated 18 March 1987 Mr Edwards says, "Although we expected more than 20,000 passing through the Centre per week nowhere was it stated that 56,000 or thereabouts would be passing through the Centre." This is the only evidence of the number of people passing through Northgate each week after it opened and I accept it. The only basis for making the representation that there was going to be a Tattslotto kiosk in the centre of the store was Mr Edwards' understanding this was something that the promoters wished to achieve. Negotiations to fulfil that wish did not start until after the representation had been made. It was common ground that there was never a Tattslotto kiosk at Northgate.
92 I also accept Mr Stocks' evidence that he was told that nearly all the shops were let and that there were only three left. I also accept that because Northgate was divided into three halls, the number of available shops in the area appropriate for the business that the plaintiffs wanted to carry on may have been limited, in the sense that although at the time the representation was made, no leases had been signed, there were only a limited number of shops in that area that were not then the subject of discussion with other prospective tenants. However, as Mr Edwards' evidence has demonstrated, the whole marketing tenor adopted by him was to create the impression that there was a high demand for shops at Northgate and that if anybody wanted to get a shop there they had to hurry. The evidence was not that there are only three shops left for lease in the area where the plaintiffs' shop could go, but simply that there were only three shops left available for lease and that statement was not true.