FINDINGS
14 In the present matters, the Court is mindful of the fact that TLL succeeded in its claim of establishing that in fact there was a leasing agreement entered into between it and Lennmar. However to consider such result in isolation, and to segregate the various issues in respect of which each party succeeded or failed, would not provide a reliable assessment upon which to found an order for costs. To isolate the claim from the cross claim would bring an aspect of unreality to the proceedings. Whilst Lennmar disputed the actual contractual documents relied upon by TLL, the real dispute concerned the more technical issues whether TLL, by its servants and agents, had engaged in unconscionable conduct. This in turn gave rise to complex questions involving the application of various provisions of the TPA; whether Freshtel was TLL's agent; whether TLL contravened s 12CA(1) of the Australian Securities and Investment Commissions Act 2001 (Cth); and whether relief could be granted under s 7 of the Contracts Review Act 1980 (NSW).
15 The proceedings commenced in this jurisdiction by the filing of statement of claim on 1 October 2010. The cross-claim and defence to cross-claim were all filed promptly thereafter. Initially steps were taken to make these proceedings part of other representative proceedings but it subsequently emerged that such a course would be impractical and that such proposal was abandoned.
16 Significantly, at the first mediation which was held on 1 March 2011 the defence of Lennmar and the basis for its cross-claim were 'fully canvassed' according to the submissions of Lennmar. Lennmar's without prejudice Calderbank offer was made on 16 April 2011 to settle the proceedings on the terms referred to earlier in this decision. It follows that TLL must have had notice of allegations that Lennmar had been misled by statements made to Mr and Mrs Parton by Freshtel representatives, which induced Lennmar to enter into the lease agreement with TLL for the supply of the telephone equipment. Those allegations were subsequently contained in the affidavits of Mr and Mrs Parton filed on 21 October 2011.
17 No evidence was called by TLL to rebut any of the statements made by Mr and Mrs Parton concerning the misrepresentations and the Court found these statements proved. It might have been expected that, having been apprised of these allegations, TLL would have made inquiries to ascertain whether the assertions made by Mr and Mrs Parton were correct. The fact that no evidence was subsequently called to rebut these statements is a highly significant fact: see Jones v Dunkel (1959) 101 CLR 298. Further, in cross-examination of Mr and Mrs Parton no challenges were made to the Partons' truthfulness, nor was it submitted that they were untruthful witnesses.
18 Consequently, the Court can infer that TLL was aware that the unchallenged evidence of the Partons would prove what had been made clear to them by Lennmar during the mediation on 8 March 2011; that conduct had been engaged in by Freshtel which was misleading and deceptive and that TLL had aided and abetted such conduct.
19 In the Court's consideration, this circumstance transcends all other technicalities relied upon. TLL ought to have known if it was not possible to challenge the Partons' statements then the Court almost certainly would have accepted the Partons' evidence and found Lennmar's claims proved. In the absence of any evidence to the contrary to rebut those allegations, TLL must have known it had no defence to the charges of misrepresentation.
20 It follows that the litigation should never have proceeded beyond this point, and that by its conduct in pursuing its claim TLL has caused Lennmar to incur costs which the Court can accept must be substantial. Apart from interlocutory procedures, approximately nine days were occupied with the hearing. This fact renders moot TLL's submission that it was successful on particular isolated issues for determination.