Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty Limited (No 2) [2017] ACTSC 88 (28 April 2017)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty Limited (No 2)

[2017] ACTSC 88

1, 2, 3, 7, 8, 9, 10 October 2014, 28, 29 January 2015

1. There be judgment for the plaintiff on its claim in the sum of $88,223.06 with costs.

1. The defendant's counterclaim be dismissed with costs.

1. There be judgment for the defendant on its third party claim in the sum of $1 377 561.94.

1. The defendant and the third party file and serve any written submissions as to costs of the third party claim on or before 1.00 pm on 5 May 2017.

1. It be declared that the plaintiff was entitled to enter the premises being shops 185A, 186 and 187 on Subleasing Plan 5100 on the land being Block 3 Section 1 Greenway to recover possession of them on or about 31 January 2008 and that the plaintiff was entitled to terminate the sublease of those premises to the defendant on that date under s 115 of the Leases (Commercial and Retail) Act 2001 (ACT).

1. It be declared that the third party is entitled to call on the guarantee given by the National Australia Bank Ltd dated 29 August 2003 on behalf of the plaintiff for so much of the judgment sum in favour of the plaintiff as is secured by the guarantee and to account to the plaintiff for all the funds received from the bank in response to that call.

TRADE AND COMMERCE - TRADE PRACTICES AND RELATED MATTERS - Misleading and deceptive conduct - silence or non-disclosure as a form of misleading and deceptive conduct - non-disclosure need not be intentional - non-disclosure did amount to misleading and deceptive conduct - representations to constitute conduct - s 52 of the Trade Practices Act 1974 (Cth)

EVIDENCE - EXPERT OPINION - Concurrent expert evidence - preference of evidence - influence of instructions given - nexus of argument - "in conclave"

DAMAGES - ASSESSMENT - Loss and damage must be actual loss and damage suffered - link between reliance of the misleading and deceptive conduct and the loss of damage claimed - causation - reasonableness - mitigation - liability to third parties - compensation payable as a consequence of loss of rent due to abandonment of premises - exit costs - damages for capital outlays - damages for trading losses - damages for borrowing costs - interest payable - s 82 of the Trade Practices Act 1974 (Cth) - s 46 of the Fair Trading Act 1992 (ACT)

Civil Law (Property) Act 2006 (ACT), ss 5, 205

Civil Procedure Act 2005 (NSW), s 22

Competition and Consumer Act 2010 (Cth), s 82(1)

Corporations Act 2001 (Cth), ss 135, 135(2), 198E, 202A, 251A, 285, 286

Districts Act 2002 (ACT)

Land Titles Act 1925 (ACT), ss 77, 78

Leases (Commercial and Retail) Act 2001 (ACT), ss 12, 15, 22, 30, 37, 57, 58, 65, 66, 70, 71, 81, 84, 85, 86, 87, , , , , , , ,

Limitation Act 1985 (ACT), ss 11, 21, 51

Supreme Court Act 1970 (NSW), s 78

Trade Practices Act 1974 (Cth), ss 52, 82, 82(1), 82(2), 87

Trade Practices Amendment Act (No 1) 2001 (Cth)

Court Procedures Rules 2006 (ACT), rr 302, 302(b), 302(c), 303(2), 1619, 2900, Sch 2

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Tuggeranong Town Centre Pty Ltd (Plaintiff and Cross Defendant)

Brenda Hungerford Pty Ltd (Defendant and Counter Claimant)

Mr C Erskine SC and Mr J Masters (Defendant and Counter-Claimant)

1. On 1 September 2003, the defendant, Brenda Hungerford Pty Ltd, to whom I will refer as "BHPL", became the sublessee by assignment of a sublease of certain premises at the Tuggeranong Hyperdome, a shopping centre in the Tuggeranong district of Canberra. Districts in the Australian Capital Territory are provided for in the Districts Act 2002 (ACT): The Owners of Units Plan No 932 v Marhaba [2017] ACTSC 13 at [21]. Tuggeranong is the southernmost district of Canberra. I shall refer to the centre as "the Hyperdome". I shall refer to the Sublease as "the Sublease".

2. At the time, the third party, Leda Commercial Properties Pty Ltd, to whom I shall refer as "Leda", was the landlord.

3. On or about 6 December 2005, Leda sold its interest in the Hyperdome to Tuggeranong Town Centre Pty Ltd, the plaintiff, to whom I shall refer as "TTC". On or about that date, Leda purported to assign to TTC its interest in the Sublease.

4. On 31 January 2008, BHPL abandoned the premises the subject of the Sublease. In the ordinary course, BHPL would be required to pay the landlord, then TTC, for the rental and other payments due under the Sublease until the expiry of the term.

5. As a result, TTC commenced these proceedings claiming the moneys it said BHPL owed it under the Sublease. BHPL defended the claim and counter-claimed for damages caused by misrepresentations it said had been made in connection with its entry into the Sublease.

6. BHPL also joined Leda as a third party. Both TTC as plaintiff and Leda as third party were represented by the same lawyers. Thus, where the interests of these two parties in the proceedings coincide, I will refer to them as "TTC/Leda".

7. Because TTC's claim was largely undefended, save for its counter-claim, BHPL began the hearing.

8. In order to render the proceedings and these reasons intelligible, it is appropriate to set out the factual background to the claims and counterclaims. Much of the evidence about these matters was undisputed. I make the following findings.

9. The Hyperdome is a shopping centre located in the Tuggeranong Town Centre in the suburb of Greenway, ACT, in the District of Tuggeranong, occupying the major part of the land bounded by Anketell Street, Athllon Drive, Reid Street North and Pitman Street. It is, from the maps and plans produced and admitted into evidence, a relatively large shopping centre.

10. To the west of Athllon Drive is a large building containing government offices which housed Centrelink, formerly the Department of Society Security.

11. Originally, the Hyperdome was bounded on the west by Scollay Street, which was parallel to but east of Athllon Drive, but when the Tuggeranong Markets closed, the Hyperdome expanded into that area and Scollay Street was closed from Reid Street North to Pitman Street.

12. The Hyperdome then established a building over the former site of the markets in about November 1992 which, in these proceedings, was called the "Lifestyle Centre". It was located to the west of the main, and larger, Hyperdome building and connected to it through an open space which I will call the Courtyard, about which there was significant evidence given in the proceedings.

13. To the east of the Courtyard was an entry to the main Hyperdome building which became known, in these proceedings, as the "Target Door". It led into a large arcade of shops extending towards the Anketell Street boundary of the Hyperdome, though at the upper level at that end; the actual entry from Anketell Street is at the ground level. That mall was called, in these proceedings, the "Target Mall", because a large Target store was located within it.

14. While the formal entrance to the Hyperdome is in Anketell Street, there were a large number of other entrances to it, as would be expected. In particular, a further entrance from Athllon Drive was to the west. That entrance opened into the Lifestyle Centre. A mall through the Lifestyle Centre led to the Courtyard and to the Target Door to which I have already referred.

15. Parallel to but south of the Target Mall was a smaller arcade of shops which, because it included a Coles store, was called, in these proceedings, the "Coles Mall".

16. It extended from approximately the Anketell Street boundary of the Hyperdome, but again at the upper level, past the Food Court and on to an entrance which opened into the undercover storey of the multi-storey car park of the Hyperdome which, at that level, was to the south west of the building. There was a further storey of the car park above the car park at that level.

17. The entry into the Coles Mall from that undercover car park was called, in these proceedings, the "Coles Door". The Giving & Living store was located in the Coles Mall, a few shops down from the Coles Door.

18. To the south of the Lifestyle Centre was a large open air ground level car park for government and government employees' vehicles, at the eastern side of which was a roadway, roughly where Scollay Street had been and which led in a northerly direction to the Courtyard between the Lifestyle Centre and the main Hyperdome building. To the east of that roadway was the multi-storey car park to which I have referred at [16]. Still further east was the Coles Door, accessed through the undercover storey of the multi-stories car park. A pedestrian crossing was marked across the undercover car park to the Coles Door.

19. Immediately to the north of the Coles Door was a ramp that led to the upper storey of the multi-storey car park and it was serviced by a travelator. At times, it was exposed to the weather. Persons using the travelator could enter the Hyperdome through the Coles Door into the Coles Mall.

20. In the Coles Mall, there was, a short distance along it and approximately opposite the BHPL leased premises, a ramp to the lower floor of the Hyperdome. It was also serviced by a travelator, which I will call in these reasons the "Coles travelator".

21. Directly opposite the entrance from Athllon Drive into the Lifestyle Centre were a set of traffic lights servicing a pedestrian crossing across Athllon Drive from approximately the area of the Centrelink offices. They were installed and commenced operation on 15 August 2003. To the south and diagonally opposite the southern government car park, to which I have referred above (at [18]), at the corner of Athllon Drive and Reid Street North, the Commonwealth had commenced constructing further offices for the Australian Public Service, to be known as the Caroline Chisholm building. Along Reid Street North, opposite the Hyperdome on its southerly side were located various premises occupied by offices and commercial businesses.

22. One of the stores in the Coles Mall was a retail gift and homewares store called Giving & Living. It had been established for 11 years in 2003 and was managed by the employed staff and occupied its premises under the Sublease.

23. The business was owned by a company, Giving & Living Pty Ltd, the owners of which were Richard D'Amico and his wife, Nadia D'Amico.

24. On 21 July 2003, BHPL was registered as a company and, on 21 August 2003, it entered into an Agreement for Sale of Business with Giving & Living Pty Ltd for the purchase of the Giving & Living business it operated at a price of $235 000, plus the cost of stock at valuation. I shall refer to the business in these reasons as "Giving & Living".

25. The purchase price was apportioned in the Agreement as follows:

26. Following completion of the sale, BHPL, on 1 September 2003, took possession of the premises in which the business was conducted.

27. It appears that the Sublease was formally assigned to BHPL on 4 November 2003 effective from 1 September 2003.

28. On the same date, 4 November 2003, a Variation of the Sublease was executed, though it was a curious document. Despite the date of effect of the assignment of the Sublease, it apparently taking effect on the date it was signed, was nevertheless signed by Giving & Living Pty Ltd as "Lessee" and BHPL as "New Lessee".

29. The variation extended the term of the Sublease by two years and provided for further review dates for the rent and the amount thereafter payable for those extra years.

30. On 31 January 2008, BHPL vacated the premises and ceased to pay rent or other amounts to TTC after that. A new tenant took over the premises on 1 June 2008.

31. As noted above, TTC commenced these proceedings against BHPL seeking payment of moneys due under the Sublease. BHPL defended the proceedings and counterclaimed against TTC and Leda.

32. The pleadings consisted of a Statement of Claim (the Second Further Amended Statement of Claim dated 15 September 2014), a Defence and CounterClaim (the Second Further Amended Defence to Second Further Amended Statement of Claim and Second Further Amended CounterClaim dated 29 September 2014), a Reply (the Further Amended Reply to Second Further Amended Defence dated 6 October 2014) and Answer to the CounterClaim (Further Amended Answer to Second Further Amended CounterClaim dated 6 October 2014), a Third Party Claim (Further Amended Statement of Claim to accompany Third Party Notice dated 29 September 2014) and a Defence to the Third Party Claim (Further Amended Defence to Further Amended Third Party Claim dated 6 October 2014).

33. Regrettably, the Defence was drafted in a way that I have described in Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd [2010] ACTSC 20; 4 ACTLR 114 at 119; [9], as being in "quite inappropriate language", following what fell from Connor J in Inglis v Moore (1981) 51 FLR 293 at 296, where the drafter denies paragraphs of a pleading instead of denying the allegations or assertions or claims in it.

34. Nevertheless, a number of the allegations in the pleadings were admitted and these give some further background to the proceedings. From those admitted pleadings, I can make the following further findings.

35. As required by the principles set out in cases such as Moldex Ltd v Recon Pty Ltd [1948] VicLawRp 15; [1948] VLR 59 at 60, the pleadings alleged and I accept that all the parties were corporate entities able to sue and liable to be sued in their respective corporate names.

36. On 1 September 2000, Giving & Living Pty Ltd became sublessee to Leda from 1 September 2000 until 31 August 2007 of shop premises in the Hyperdome Shopping Centre, being shops 185A, 186 and 187 on subleasing plan 5100 on the land being Block 3, Section 1, Greenway in the Australian Capital Territory. I shall call these premises the "Premises". It was there that the company conducted the Giving & Living business.

37. BHPL succeeded Giving & Living Pty Ltd as sublessee of the Premises from 1 September 2003. There was, however, some dispute on the pleadings about the precise mechanism whereby that happened. In essence, TTC asserted that the change in sublessee was effected by an assignment of the Sublease; BHPL asserted that it was effected by the issuing to it of a new sublease with some different terms and conditions.

38. In any event, the term of occupation was extended to 31 August 2009 and BHPL was required to provide a bank guarantee equivalent to three months rent. It did so by causing the National Australia Bank Ltd to provide the required guarantee.

39. BHPL says that these were terms of a new lease; TTC says the term of the Sublease, being that originally granted to Giving & Living Pty Ltd were merely varied, and that the requirement for a bank guarantee was a term of the Sublease. When the Sublease was assigned, TTC claimed the requirement simply became an obligation of BHPL. The Sublease was merely varied not replaced by a new Sublease.

40. The Sublease (whether an assigned sublease or a new sublease) required payment of certain moneys, including base rent, contribution to outgoings, and an amount equal to any goods and services, consumption, value added or similar tax applying to any of the payments, and required BHPL to make payments without set-off, counterclaim, withholding or deduction. The terms and conditions included a provision that expiry or termination of the Sublease would not affect BHPL's obligations to make payment of any moneys due under it and that BHPL would indemnify TTC against any liability or loss in connection with any breach by BHPL of the Sublease. BHPL, in its defence, relied on the terms and conditions of the actual document without admitting the accuracy of this summary set out in TTC's Statement of Claim.

41. Around 31 January 2008, BHPL abandoned the Premises which, by s 115 of the Leases (Commercial and Retail) Act 2001 (ACT), resulted in the termination of the Sublease, though BHPL in its defence denied any breach of the Sublease.

42. Although BHPL said that "as it did not know the facts it could not admit them", TTC (although, in error, referring in paragraph 10 of the Second Further Amended Statement of Claim to the "applicant" instead of the "plaintiff") found a new tenant for the Premises. I am satisfied that I can find that the new tenant took occupation of the Premises from 1 June 2008, thus ending any further obligation of BHPL for payments to TTC.

43. TTC alleged it had suffered damage by the breach of the Sublease and abandonment of the premises and claimed $52 841 being rent and outgoings for the period from February 2008 to May 2008.

44. On or about 27 August 2003, BHPL arranged for the National Australia Bank to provide the required guarantee for the benefit of Leda.

45. A question arose, to which I will refer below, about the enforceability of that guarantee. TTC sought declarations as to its entitlements to the benefit of the guarantee that it and Leda had. BHPL opposed the making of such declarations.

46. The issues arising out of the Statement of Claim and Defence are as follows:

1. Whether the lease document under which BHPL occupied the Premises was the assigned Sublease from Giving & Living Pty Ltd or a new sublease.

2. Whether Leda had properly and effectively assigned its interest under the Lease (whether a new sublease or assigned sublease) to TTC.

3. What was the status of the bank guarantee that BHPL had given to Leda and whether it had been cancelled or whether Leda could, on behalf of, or accounting to, TTC, call on the guarantee for the moneys owed by BHPL.

4. In addition, BHPL alleged breaches of various obligations of TTC which, it said, were required of it under the Leases (Commercial and Retail) Act or the leasing documents, by reason of which BHPL was entitled to recover certain

over-charges and that it was unconscionable for TTC and Leda to have charged for certain outgoings which, it was asserted they were liable to refund to BHPL.

5. BHPL further challenged the claim by TTC on the basis of the matters pleaded in the Counterclaim.

47. The CounterClaim was against TTC alone. It pleaded a series of allegations but the cause of action was clouded by a lack of clarity in the way they were said to render TTC liable.

48. Thus, the Counterclaim consisted primarily of allegations that officers of TTC or of Leda had made representations which were made in trade or commerce. The representations were said to be false, in that they related to future matters and there were no reasonable grounds for making the representations.

49. The representations which were said to have been misleading or deceptive were said to have been made by the following persons:

(a) Mr Duane Lord, said to have been made from the beginning of 2007 through to the end of 2007 and in particular on or about 8 and 23 March 2007;

(b) Mr Tim Beirne, said to have been made on or about 10 July 2003;

(c) Mr Shane McCann, said to have been made in about March 2004 and then again further representations by him said to have been made on or about 23 March 2006; and

(d) Mr Bob Cooper, said to have been made from shortly after the time Hot Dollar Australia (Canberra) Pty Ltd occupied shop 190 in the Hyperdome until about mid 2007.

50. I set out below the various representations in some detail as, unsurprisingly, much of the evidence in the proceedings concerned them, whether they were made, whether they were false, whether they were misleading or deceptive and whether they led to BHPL suffering damage.

51. It appears that, insofar as the representations were made by officers of Leda, the alleged liability of TTC was said to be a result of the assignment of the Leda's interests in the Lease as lessor to TTC had the effect of assigning "to" TTC the liabilities that Leda may have had to BHPL.

52. It was then alleged that BHPL relied upon these representations and, in reliance upon them, was induced to enter into the Sublease and do or refrain from doing other things which resulted in damage to BHPL.

53. It was said that the conduct in making the representations involved TTC engaging in unconscionable conduct, both in equity and within the meaning of the Trade Practices Act 1974 (Cth), and amounted to misleading and deceptive conduct within the meaning of that Act and the Fair Trading Act 1992 (ACT) and in breach of clause 18.1 of the Sublease.

54. The Counterclaim also referred to the over-payments to which I have referred above (at [46] 4) and sought repayment of those moneys.

55. The issues arising out of the Counterclaim and Defence to the Counterclaim are as follows:

1. Whether Mr Lord made certain alleged representations and, if he did, whether they were misleading or deceptive?

2. Whether TTC failed to comply with its obligations in connection with the assessment of claims for and reporting of relevant information about the outgoings to which BHPL was required to contribute and whether the contributions it paid were more than TTC was entitled to receive.

3. Whether, following a grant of rental relief to BHPL by TTC, the rent and contributions to outgoings paid by BHPL was in excess of that it was required to pay.

4. Whether Mr Beirne made certain alleged representations either expressly or impliedly and, if he did, whether TTC was liable for any remedy to which BHPL might be entitled as a result of them.

5. Whether the matters the subject of the alleged representations of Mr Beirne were as described, such that the alleged representations were misleading or deceptive.

6. Whether Leda was required to give to BHPL a disclosure statement and whether TTC was required to do so.

7. Whether Mr McCann made certain alleged representations and, if he did so, whether TTC was liable for any remedy to which BHPL might be entitled as a result of them, especially as BHPL was by then already under a legal obligation to comply with the provisions of the Sublease.

8. Further, whether, when Mr McCann made any of the alleged representations, he knew or ought to have known matters which BHPL alleged were inconsistent with the representations.

9. Whether Mr Cooper made certain alleged representations and, if so, whether he knew matters or ought to have known matters which BHPL alleged were inconsistent with the representations.

10. Further, whether certain matters the subject of the alleged representations made by Mr Cooper were untrue.

11. Whether the claims by BHPL were barred by s 82(2) of the Trade Practices Act and s 11 of the Limitation Act 1985 (ACT).

12. Whether TTC engaged in unconscionable conduct and, if so, whether BHPL suffered loss or damage thereby.

13. Whether TTC is liable for any cause of action BHPL has raised against TTC at a time before it had an interest in the Hyperdome and, if so, the extent to which its liability should be apportioned with Leda whose liability would be concurrent.

14. Whether any loss sustained by BHPL was caused or contributed to by BHPL.

56. BHPL issued a Third Party Notice to Leda. It was accompanied by a Statement of Claim as required under r 303(2) of the Court Procedures Rules 2006 (ACT). The Third Party Claim was a rather curious claim. The claim was not for contribution or indemnity as is the usual claim made in a third party claim.

57. That, of course, is not the limits of such third party claims: r 302 of the Court Procedures Rules.

58. In this case, BHPL sought damages from Leda, not dependent upon any claim by TTC in its Statement of Claim which was for rent and other outgoings unpaid until the Premises were re-leased.

59. In this sense, it was truly a separate claim. It was, apparently, said to be permitted by virtue of it coming within the terms of r 302(b) and (c) of the Court Procedures Rules or both. That rule is as follows:

A defendant may file a third-party notice if the defendant wants to -

(a) claim a contribution or indemnity against a person who is not already a party to the proceeding; or

(b) claim relief against a person who is not already a party to the proceeding that -

(i) relates to or is connected with the original subject matter of the proceeding; and

(ii) is substantially the same as some relief claimed by the plaintiff; or

(c) require an issue relating to or connected with the original subject matter of the proceeding to be decided not only as between the plaintiff and defendant but also between either of them and a person not already a party to the proceeding.

60. This was a very similar situation to that in Jardine v Vaughan (No 3) [2015] ACTSC 33, where unpaid sale price instalments were sought from the defendant by the plaintiff and the defendant sought damages from the third party for misleading and deceptive conduct in connection with the sale. In that case, the third party proceedings were heard separately from the proceedings between the plaintiff and the defendant: see Jardine v Vaughan (No 3) at [8]-[9]. The defendant was awarded damages. Though that award was overturned on appeal, the Court of Appeal did not suggest the procedure was in any way defective: Clarkson Williams Partners Pty Ltd v Vaughan [2016] ACTCA 1.

61. There is no doubt that the Third Party Claim was substantially the same as the Counterclaim BHPL has made against TTC. Indeed, the final version of the Third Party Claim (that is the Further Amended Statement of Claim to accompany Third Party Notice dated 29 September 2014) was in substantially identical terms as the Counterclaim save for claims that were only maintainable against TTC, such as in relation to the subsequent variation of the Sublease.

62. Indeed, so similar were the two pleadings that, as in the Counterclaim, the Third Party Claim referred to BHPL as "the Defendant" and TTC as "the Plaintiff", but Leda was referred to, not as "the Third Party", which might have suggested some independent consideration of how the Third Party Claim should be pleaded but as "Leda" as in the Counterclaim. I suppose this says something about the use of computers to copy text without the need for independent thought.

63. Interestingly, BHPL asserted in the Third Party Claim that it had purchased an Assignment of Lease from Leda giving it entitlement to occupy the premises and that, on or about 4 November 2003, Leda varied the terms of the lease, pleadings which, at first blush, seems inconsistent with some of the defences it raised to the Statement of Claim.

64. The Third Party Claim repeated a number of the allegations of misrepresentation that had been included in the Counterclaim and alleged, as a result, that Leda had engaged in unconscionable conduct both in equity and within the meaning of the Leases (Commercial and Retail) Act and the Trade Practices Act and had engaged in misleading and deceptive conduct within the meaning of the Fair Trading Act and claimed damages.

65. The representations for which BHPL said Leda was responsible and which was said to have constituted the culpable conduct were those said to have been made by Mr Beirne, and the first 2004 representations said to have been made by Mr McCann.

66. In addition, BHPL alleged that, in or about April 2006, a prospective purchaser of the Giving & Living business from BHPL was instead offered an alternative tenancy in the Hyperdome by the shopping centre management, even though the purchaser had been introduced to the shopping centre by BHPL.

67. Curiously, BHPL also claimed, in the Third Party Claim, that Mr Lord's alleged representations, from beginning 2006 to end 2007 and particularly on or about 8 and 23 March 2007, had been made on behalf of Leda, even though it had sold its interest in the Hyperdome to TTC on 6 December 2005.

68. Leda filed a Defence to the Third Party Claim. It was, unfortunately, quite confusing. It denied that it or anyone on its behalf had made the certain representations alleged but then addressed other allegations as though they repeated certain parts of the defence even though it did not appear that they did so. It also appeared to controvert allegations that were not made in the Third Party Claim.

69. In the proceedings, no point seemed to be taken of the disconnect between the claims actually made in the Third Party Claim and the Defence to it.

70. So far as I could make them out, the issues arising out of the Third Party Claim and the Defence to the Third Party Claim were as follows:

1. Whether Mr Beirne made certain alleged representations, either expressly or impliedly, and, if he did, whether the matters the subject of the representations were, as described, such that the representations were misleading or deceptive.

2. Whether Mr McCann made certain alleged representations and, if he did, whether he knew or ought to have known matters which BHPL alleged were inconsistent with the representations.

3. Whether Mr Lord made certain alleged representations and, if he did, whether they were misleading or deceptive.

4. Whether Leda was responsible for any remedy to which BHPL might be entitled as a result of any representations made by Mr Lord.

5. Whether a prospective purchaser of the balance of the term BHPL had in the Sublease was improperly persuaded to enter into a lease of premises elsewhere in the Hyperdome.

6. Whether the procedures required to be followed in setting of and requiring payment for the outgoings payable by tenants were followed by Leda and whether BHPL had been overcharged for the contributions to outgoings it had paid.

7. Whether Leda had been required to give BHPL a disclosure statement under the Leases (Commercial and Retail) Act.

8. Whether the Third Party Claim was barred by s 82(2) of the Trade Practices Act or s 11 of the Limitation Act.

71. Central to these proceedings was the issue of the representations. Accordingly, it is appropriate to set them out here.

72. The first representations pleaded in the proceedings were said to have been made by Dwayne Lord, who was employed from April 2006 to January 2008 as the Centre Manager of the Hyperdome.

73. BHPL alleged that, from the beginning of 2006 to the end of 2007, and, in particular, on or about 8 and 23 March 2007, Mr Lord, on behalf of TTC, represented that:

(a) TTC wanted to keep BHPL's shop in the Hyperdome because it was a good shop;

(b) TTC was actively looking to relocate the shop to a better location in the Hyperdome; and

(c) in particular, from about March 2006 until December 2007, on approximately a weekly basis, the travelators near to the shop would be fixed soon.

74. These representations were known as the "Lord representations" and it was alleged that they were made in circumstances where Mr Lord knew or ought to have known that:

(a) TTC was not actively seeking to relocate the Giving & Living store to a better location;

(b) the Giving & Living store's turnover had fallen significantly and was, as a result, running at a loss; and

(c) TTC had no intention of fixing the travelators.

75. It was alleged that, in reliance on these representations, BHPL:

(b) was induced not to take steps to sell the business;

(c) was induced to invest money in the business; and

(d) was induced not to terminate the lease and thereby mitigate its damages.

76. It was also alleged that, at all material times, TTC was aware that BHPL was relying on the Lord representations.

77. The first in time but second pleaded representations were alleged to have been made on or about 10 July 2003 by Timothy Beirne to Ms Hungerford. These were called "the Beirne representations".

78. Mr Beirne was, from January 2002, the Retail Manager at the Hyperdome. As such, he described himself as "dealing ... day-to-day with the tenants and the marketing of the Centre".

79. In the conversation with Ms Hungerford, Mr Beirne is claimed to have represented:

(a) that the Hyperdome was a good location in which to have a shop such as the Giving & Living store;

(b) the Giving & Living store's location was a good one because the Coles Door, nearest to the store, had passing through it the second highest foot traffic in the Hyperdome;

(c) there was nothing that BHPL should know about the Hyperdome that could impact upon the Giving & Living business; and

80. It was also said that, arising from these representations, it was impliedly represented:

(a) that the layout of the Hyperdome was not expected to alter during the term of the Sublease in any way that could affect the correctness of those representations;

(b) that the then volume of the foot traffic would not fall during the term of the Sublease in any way that Leda was then aware would affect the correctness of those representations; and

(c) the marketing and promotion of the Hyperdome was not expected to alter during the term of the lease in any way that would affect the correctness of those representations or, in the alternative, the Hyperdome would pursue best industry practices in marketing and promotion to ensure that the volume of the foot traffic would not fall during the term of the Sublease in any way that could affect the correctness of those representations.

81. BHPL claimed that, at the time of making the Beirne representations, Mr Beirne knew or ought to have known that:

(a) Leda had already planned extensive development works, integrating or linking the original Hyperdome block with the Lifestyle Centre, which would be likely to divert foot traffic away from the Coles Door and be in breach of clause 18.5 of the Sublease or disturb BHPL's tenancy;

(b) Leda had already planned to introduce paid parking to the Hyperdome which would be likely to cause a substantial fall in the turnover of the shop and be in breach of clause 18.5 of the Sublease or to disturb BHPL;

(c) Leda had received a Market Research Report from AMRS recommending the implementation of many strategies to address identified shortcomings that negatively affected foot traffic in the Hyperdome; and

82. BHPL alleged that the representations related to future matters and that there were no reasonable grounds for making the representations. It was then claimed that, in reliance on the representations, BHPL:

(c) was induced not to terminate the lease notwithstanding the breaches of it;

(d) was induced not to take steps to sell the business; and

83. BHPL also claimed that Leda was aware at all times that BHPL was relying on the representations made in the Beirne representations.

84. I pause to note that the allegation that the rent was market rent was not a representation as to a future matter and there was no pleaded allegation that the allegation was false. By implication, however, the pleading that Mr Beirne knew or ought to have known that the rent was substantially above market rent may be seen, despite the inadequacy of the pleadings, to raise the falsity of that representation. This was just another challenge for the Court to address arising from the rather inadequate pleadings.

85. The third pleaded set of representations were alleged to have been made by Shane McCann on behalf of Leda in or about March 2004. Mr McCann was employed at the Hyperdome as Retail Manager from October 2002 and in late 2003 or early 2004 was appointed Centre Manager at the Hyperdome, taking up his role in early 2004 until April or May 2006.

86. It was alleged that he first represented that Leda intended to lease a shop opposite the Giving & Living shop (the Hot Dollar shop), to a company, Hot Dollar Australia (Canberra) Pty Ltd, which would lift the turnover of the Giving & Living shop. This was known as the first McCann representations.

87. It was then alleged that, contrary to the representation, the Hot Dollar shop, would not be likely to draw any foot traffic appropriate to the Giving & Living shop.

88. The fourth set of pleaded representations were said to have been made, on or about 23 March 2006, by Mr McCann, again said to have been made on behalf of Leda, though it had by this date assigned its interest in the Hyperdome. Mr McCann was said to have represented to BHPL that Leda would negotiate with prospective purchasers of BHPL's business in good faith regarding the reduction of the shop space and continuity of rent relief, which BHPL was then in the process of negotiating with Leda. This was known as the second McCann representations. BHPL alleged that the second McCann representations were made when Leda knew or ought to have known that it was not intending to engage in those negotiations.

89. A further, third representation was said to have been made that same date when Mr McCann, adding, on this occasion, that the representation was also said to have been made on behalf of TTC, was said to have represented that TTC would negotiate rent relief with BHPL in the order of 50 per cent to 30 per cent. This is known as the third McCann representations

90. BHPL said that all the McCann representations also related to future matters and that there were no reasonable grounds for making the representations. BHPL said that, in reliance on the representations, BHPL was:

(a) induced to enter the lease (a matter, I interpolate, that could not be so since the representations post-dated BHPL entry into the Sublease);

(c) induced not to terminate the lease notwithstanding the breaches alleged;

(d) induced not to take steps to sell the business (which, again, is odd in that the second McCann representation was that Leda would negotiate in good faith with prospective purchasers of BHPL's business); and

91. BHPL further alleged that at all material times Leda (curiously not TTC as well, instead or at all) was aware that BHPL was relying on the first, second and third McCann representations.

92. Finally, the last set of representations alleged were said to have been made by Robert Cooper, who was employed from October 2004 to late 2008, as Retail Manager and then a leasing executive at the Hyperdome.

93. BHPL alleged that, after Hot Dollar Australia (Canberra) Pty Ltd moved into the Hot Dollar shop opposite the Premises, Mr Cooper, on behalf of Leda and subsequently of TTC, represented to BHPL that that company would be moving out of the space and would be replaced by a "good new retailer". This was known as the Cooper representations.

94. BHPL alleged that the Cooper representations were made when he knew or ought to have known that that company had moved into the shop opposite the Premises and that there would not be a "good new retailer" moving into that shop, which retailer would not be likely to draw any foot traffic appropriate to BHPL's business.

95. Again, BHPL alleged that this representation related to a future matter and there were no reasonable grounds for making the representation and that, in reliance on it, BHPL was induced to:

(a) enter the lease (which, again, cannot be true since the representation was made well after BHPL had entered into the Sublease);

(c) induced not to terminate the lease notwithstanding breaches of the lease;

(d) induced not to take steps to sell the business; and

96. BHPL alleged that, at all material times, Leda was aware that BHPL was relying on the Cooper representations.

97. I note that, again, there was a deficiency in the pleadings in that, despite suggesting that the Cooper representation was made on behalf of TTC, as well as on behalf of Leda, there was no allegation that TTC was aware that BHPL was relying on the representation.

98. In all, once again, the pleadings were deficient and inadequate in a number of respects. In the result, none of these inadequacies were other than to make my task more complicated and, in requiring me to work out what was meant, delaying somewhat the completion of these reasons.

99. Only the Beirne representations were referred to in the written submissions of BHPL. These will need to be considered at some length below.

100. The failure to mention the other representations might imply, although it was not expressed, that the claims based on those representations were not pressed.

101. Extensive submissions were filed as to these representations by TTC/Leda.

102. In my view, it is not necessary to consider the representations, other than the Beirne representations, in any great detail.

103. I am prepared, however, on the basis of the evidence before me, to make the following findings.

104. I have carefully read the evidence, including, especially, the evidence of Mr Lord and documents that he created or were created during his time at the Hyperdome.

105. I am satisfied that, at the time of the alleged representations, TTC was actively seeking to re-locate BHPL's shop, contrary to the pleaded claim.

106. I am also satisfied that, while Mr Lord was aware that the BHPL turnover had fallen significantly, this did not render any statement he made to be false, misleading or deceptive.

107. I am also satisfied that the Coles travelator and the travelator outside the Coles Door were not inoperative on many occasions as alleged and certainly had no continuing mechanical problems. I am satisfied that, initially, the travelator outside the Coles Door was switched off during wet weather but that, subsequently, Leda or TTC arranged for a non-slip substance to be applied to it and that it could then be used when wet. I am also satisfied that it could still be used when not moving. In addition, the evidence which I am prepared to accept was that, if a travelator was broken, it would be fixed quickly.

108. Accordingly, I am not satisfied that any representations made by Mr Lord as alleged were misleading or deceptive or constituted unconscionable conduct.

109. In relation to the first McCann representations, BHPL gave no evidence in relation to it. Mr McCann denied making any such statement and it was not put to him in

cross-examination that he had made the representation.

110. In any event, the representation was inconsistent with what appear to be the facts relating to the occupation by Hot Dollar Australia (Canberra) Pty Ltd of a tenancy in the Hyperdome.

111. Accordingly, I am not satisfied that the first McCann representation was made.

112. The second McCann representations involved an assertion of Leda's willingness to negotiate with prospective purchasers in good faith regarding the reduction of the shop space and continuity of rent relief.

113. This can conveniently be dealt with at the same time as third McCann representations, namely the allegation that TTC represented to BHPL that TTC would negotiate rent relief for BHPL in the order to 50 per cent to 30 per cent.

114. The evidence came from Ms Hungerford who said:

I said to Mr McCann, 'The store is not doing well. The sales figures are continuing to decline. My original plan was to sell the business in two to three years after I purchased it. I need to know if I can get some relief from the Hyperdome.' He responded to me by saying - and it was a weird way that he put it, and that's why I remember it - 'Would 50 to 30 per cent rent relief assist you?' We were talking about various rent relief, but '50 to 30 per cent' I recall. I also - and, 'If I did obtain rent relief, would that be passed on to a buyer?' Because at that point in time, in 2005, I had appointed a broker to assist in the selling and marketing of my shop, and I had paid him marketing, and ... I said to Mr McCann, 'A broker has been employed, and I have paid a sum of money to the broker to assist in the selling of the shop. How would it affect the sale if I was able to have some assistance from the Hyperdome?' Mr McCann said to me, he would be able to look at the circumstances at the time that I had a buyer.

115. It is not in contest that TTC did grant BHPL a rent relief of $20 000 in the 2006/07 financial year and $32 000 in the 2007/08 financial year, though these were less than the 30 per cent minimum suggested by Ms Hungerford.

116. I am not satisfied that Mr McCann was offering a rent relief in the order of 50 per cent to 30 per cent of BHPL's rent. He was, as would be expected and appropriate, inquiring as to what level of rent relief was being sought. I cannot interpret what Mr McCann said as a representation that any particular level of relief would be granted.

117. If Ms Hungerford, who held herself out as an astute businesswoman, had wanted some clarity or certainty, she should have asked further questions. There was no evidence that she did so.

118. As to the representations alleged to have been made about passing on any rent relief to a purchaser of the Giving & Living business, Mr McCann did not say that it would be passed on. On Ms Hungerford's evidence, he merely said, very vaguely, that "he would be able to look at the circumstances at the time".

119. I note, too, that there was no reference in this evidence to any reduction in the floor space of the Giving & Living shop as had been pleaded.

120. Further, there was no evidence that any purchaser was found by BHPL or her broker or was ever presented to Mr McCann or anyone else for the relevant negotiation.

121. Accordingly, the evidence as a whole does not support the claim.

122. Insofar as the representation to negotiate with prospective purchasers is concerned, the highest it came was when Mr McCann is alleged to have said that he "would be able to look at the circumstances at the time that I had a buyer". That may be taken to have implied that Leda would negotiate. As no buyer was submitted, however, there is no evidence to suggest that Leda was not intending to engage in those negotiations. If Ms Hungerford wanted greater certainty, she could have, as an astute business woman, asked further questions or perhaps obtained a written assurance to pass on to her broker or any prospective purchaser.

123. So far as the allegation that TTC would negotiate rent relief in the order of 50 per cent to 30 per cent, the evidence of BHPL does not rise that high. On Ms Hungerford's evidence, Mr McCann was simply suggesting a possibility. Indeed, BHPL clearly understood that it was not necessarily going to be provided when she said, "If I did obtain rent relief, would that be passed on to a buyer?".

124. That BHPL did not obtain rent relief between 50 per cent and 30 per cent does not make what Mr McCann said in this representation to be false, misleading, deceptive or unconscionable conduct.

125. Mr Lord had sent an email to BHPL on 11 May 2006. In it, he said:

1. Rental Subsidy - we are prepared to look at this option if you can provide us with a certified P&L's [sic] for the last 2 years from your accountant. As a precursor to a decision on this, we encourage you to take advantage of the options to try and increase your sales we discussed i.e casual leasing, P.A announcements, in-centre signage etc.

126. BHPL conceded that this was consistent with what Mr McCann had said to her making it clear that there was no guarantee or offer that the subsidy would be 50 per cent to 30 per cent.

127. Accordingly, I find that Mr McCann did represent that TTC would negotiate with prospective purchasers and that this representation was not misleading or deceptive. I also find that Mr McCann did not represent that the rent relief would be in the order of 50 per cent to 30 per cent but that it would be negotiated and, no doubt, that figure would be considered.

128. Accordingly, I do not find any of Mr McCann's second or third representations to be false, misleading, deceptive or unconscionable.

129. Finally, I consider the Cooper representations.

130. As I have noted above, this allegation is inconsistent with the allegation in the Third Party Claim. One alleges that Hot Dollar shop, had already moved in, while the other that the company was going to move into the shop area opposite the Giving & Living shop.

131. These representations were not mentioned in the oral evidence Ms Hungerford gave. Mr Cooper's evidence was that he had no recollection of making any such representation.

132. In cross-examination, Mr Cooper agreed that there was a period of one to two weeks when the shop opposite the Giving & Living shop ceased to trade by reason of a

lock-out. It was not, however, put to Mr Cooper that he had said anything to Ms Hungerford about the shop or the company.

133. Indeed, the company's occupation of the Hot Dollar shop pre-dated BHPL's occupation of the Premises and the assignee, Hot Dollar Australia (Canberra) Pty Ltd, continued to trade under the same name and, it appeared, in the same way with more years left on the lease than BHPL had in the Sublease for the Giving & Living shop.

134. I am not prepared to find that Mr Cooper made the claimed representation.

135. As a result, so far as the claims based on the Lord representations, the first, second and third McCann representations, and the Cooper representations are concerned, BHPL's claim must be dismissed. The result of this that judgment will be given for TTC on the Counterclaim.

136. It is appropriate at this stage to deal with an issue that I must address about which there were no submissions.

137. As I have noted above, the Counterclaim, which was a claim against TTC alone, did, however, claim against it in respect of all the representations, not only those of its officers for whom it may properly be said to be vicariously liable. TTC would be liable ordinarily for misrepresentations, misleading or deceptive conduct or unconscionable conduct by its employees acting in the course of their employment without any allegation other than the allegation of employment or agency. See Creedon v Measey Investments Pty Ltd [1988] NTSC 80; (1988) 91 FLR 318 at 320-1.

138. As for representations said to have been made by the employers or agents of Leda, however, there was little explanation of how it was alleged by BHPL that TTC was liable for any such misrepresentations or misleading, deceptive or unconscionable conduct. The highest the allegation came was in paragraph [12] of the Second Further Amended Counterclaim as follows:

If (which is not admitted) the effect of the assignment referred to in paragraphs 5 and 6 of the Statement of Claim also assigned to the Plaintiff the liabilities of Leda to the Defendant, in respect of the matters set out in the following paragraphs, the Defendant further says as follows.

139. For completeness, I note that paragraphs [5] and [6] of the Statement of Claim (in identical terms in the relevant pleading of TTC, the Second Further Amended Statement of Claim) were as follows:

1. On or about 6 December 2005 Leda's interests as lessor in the Sublease were assigned to the plaintiff.
2. The assignment of the reversion and the benefits of covenants by the defendant in the Sublease were transferred by Leda to the plaintiff on registration of the transfer of the land which included the Premises to the plaintiff on 28 June 2006.

140. The assignment, however, is not a method whereby at law, the obligations of an assignor incurred prior to the assignment can be transferred to the assignee. They remain as obligations of the assignor. See Provident Financial Corporation Pty Ltd v Hammond [1978] VicRp 33; [1978] VR 312 at 318; Mitchell v Purnell Motors Pty Ltd (1961) 78 WN (NSW) 26 at 28-9; Stoddart v Union Trust Ltd [1912] 1 KB 181 at 194.

141. Such a transfer could have been effected by novation. See, for example, Tattock v Harris [1789] EngR 2456; (1789) 3 TR 174 at 180; 100 ER 517 at 521; Olsson v Dyson [1969] HCA 3; (1969) 120 CLR 365 at 388.

142. Of course, some of the obligations of Leda are transferred by an assignment of a lease because they are obligations that run with the land. See City of London Corporation v Fell [1993] 4 All ER 968 at 973-4. It does not seem to me, however, that a breach of an obligation not to engage in misleading, deceptive or unconscionable conduct is other than a personal obligation and could only be assigned by novation.

143. As pointed out in Mitchell v Purnell Motors Pty Ltd however, this may not have the effect of preventing a party in the position of BHPL from seeking to set-off its damages claim against the TTC claim for costs, but not to claim any damages over and above those for which it was liable. In this case, however, there is no claim by Leda against which BHPL can counterclaim or seek a set-off.

144. The consequence is that any claim for damages to which BHPL is entitled as against Leda is not recoverable from TTC. This will have to be considered in the final orders to be made.

Breach of the Leases (Commercial and Retail) Act 2001 (ACT)

145. In addition to the various misrepresentations or misleading or deceptive conduct which BHPL complained had been made by TTC/Leda or in which they had engaged, BHPL complained of breaches of the Leases (Commercial and Retail) Act.

146. There were, however, ultimately no submissions made by BHPL about this aspect of its claim. It is, therefore, necessary to say little about it, though, on the evidence adduced, only one aspect of the claim seemed to me to have any substance.

• an alleged failure by Leda to give BHPL a disclosure statement under s 30 of the Leases (Commercial and Retail) Act;

• an allegation that TTC/Leda had engaged in unconscionable, harsh or oppressive conduct in dealing with BHPL, contrary to s 22 of that Act; and

• that TTC/Leda had made representations that were and TTC/Leda knew or should reasonably have known were, false or misleading is a material particular in the course of the negotiations; and

• the claim by TTC/Leda for a contribution to outgoings was excessive and not authorised by law so that BHPL was overcharged $77,895.97.

148. The issue of the disclosure statement depended on the alleged assignment of the Sublease being regarded as the grant of a new lease. In its defence, BHPL had pleaded that the leasing arrangements with Leda following the sale of the Giving & Living business by Giving & Living Pty Ltd to BHPL was the issuing of a new lease and not an assignment of the existing lease. As such a new lease, it would appear to be a "proposed lease", so that s 30 of the Leases (Commercial and Retail) Act required Leda to give to BHPL a disclosure statement. A prescribed form of disclosure statement (AF2003-4), made under s 157A of the Act, is an eight page document prescribed on 11 March 2003 and so applicable here. It requires a good deal of information to be disclosed, such as details of the premises the subject of the lease, details of rent and other outgoings, finishes and make good details, and details of agreements and representations. In particular, for shopping centres, it requires additional details to be given, especially relevant in the context "changes or developments planned by the owner and timing of any changes or developments for: 1. Shopping Centre, 2. Surrounding roads".

149. In this case, the term of the lease was extended and provision made for review of the rental for extra years. It appears that BHPL relied on the variation to say that this constituted a surrender of the current Sublease and a re-grant of the Sublease. This would be in accordance with what was held by the Privy Council in Take Harvet Ltd v Liu [1993] 2 All ER 459 at 467, as follows:

In Jenkin R Lewis & Son Ltd v Kerman [1970] 3 All ER 414 at 419, [1971] Ch 477 at 496 Russell LJ, delivering the judgment of the Court of Appeal, summarised a set of circumstances in which, on well-established principles, a lease will be treated as having been surrendered by operation of law:

If a tenant holding land under a lease accepts a new lease of the same land from his landlord he is taken to have surrendered his original lease immediately before he accepts the new one. The landlord has no power to grant the new lease except on the footing that the old lease is surrendered and the tenant by accepting the new lease is estopped from denying the surrender of the old one. This "surrender by operation of law" takes effect whether or not the parties to the new lease intend it to take effect. Moreover, even if there is no express grant of a new lease the old lease will be surrendered by operation of law if the arrangements made between the landlord and the tenant are such as can only be carried out so as to achieve the result which they have in mind if a new tenancy is in fact created.

150. The question of whether there has been a surrender and re-grant is, however, a question of fact. As Young J said in Pascoe-Wabbe v Nusuna Pty Ltd (1985) 3 BPR 97,231 at 9622:

Up until fairly recently courts would usually take the view that unless there was some relatively minor alteration in the terms of the lease the parties must have intended a surrender and a regrant, see eg Lewis & Cassidy Landlord and Tenant Law, (1966) p 122. However, such a question is a question of fact (Wirral Estates Ltd v Shaw [1932] 2 KB 247 at 257 as applied by the Court of Appeal in Stedman v Shaw (1970) 91 WN (NSW) 190 at 196) and courts have been more ready to infer a mere variation, especially in cases of adjustment to the rent, in the last 20 years and the present law is probably accurately summed up in the 4th edition of Halsbury vol 27 para 448. That summary includes the statement that normally where the term of the lease is altered it is difficult to satisfy the court that there has been a mere variation.

151. I am not satisfied, on the balance of probabilities, that the evidence was sufficient in this case to make a finding as to the relevant facts, though it would seem from what Young J said that the variation may have been found to be a surrender and re-grant.

152. While the issue about whether the leasing arrangements constituted an assignment of the Sublease originally granted to Giving & Living Pty Ltd or the issuing of a fresh lease was not the subject of submissions by BHPL. Nevertheless, it is appropriate that, I confirm as part of the TTC claim for rent and other expenses that BHPL was bound.

153. The lease to Giving & Living Pty Ltd, which commenced on 11 September 2000, was in evidence. Also in evidence was a transfer of the lease from Giving & Living Pty Ltd to BHPL executed by both parties. That transfer was registered (registered number 1358384).

154. Sections 77 and 78 of the Land Titles Act 1925 (ACT) makes provision for the effect of registration of such a transfer. The sections are relevantly as follows:

1. (1) On the registration of a transfer, the interest in land described in the transfer, shall pass to the transferee.

1. By virtue of every transfer of a ... lease, the right to sue upon the memorandum of ... lease, and to recover any debt, sum of money, annuity or damages thereunder (notwithstanding that the right may be deemed or held to constitute a chose in action), and all interest in any such debt, sum of money, annuity or damages shall be transferred so as to vest it in the transferee thereof.

155. In Danel Investments Pty Ltd v Nexstar Investments Pty Ltd (No 2) [2011] ACTSC 120 at [269], Foster J explained the effect of the registration of the instrument of transfer of a sublease. His Honour said:

269. In the ACT, a registered sublease may be assigned at law by the execution and registration of a form of Transfer of Sublease in the prescribed form. Upon the instrument being registered, the estate or interest of the assignor (the named sublessee in the registered sublease) as specified in the instrument of transfer will pass to the assignee. Thereafter, the assignee will become subject to and liable for all of the same requirements and liabilities to which the assignee would have been subject and liable if he or she had originally been named in the sublease (see ss 77 and 78 of the Land Titles Act). It is registration which completes the transaction and which effects a transfer of the legal estate.

156. I respectfully agree with his Honour's analysis. Thus, BHPL was bound by the terms of the Sublease.

157. The approach is consistent also with similar considerations of this issue in other cases. See Queensland Premier Mines Pty Ltd v French [2007] HCA 53; 235 CLR 81 at 100-1; [55]- [56]. See also Provident Capital Pty Ltd v Printy [2008] NSWCA 131 at [31].

158. It is unclear, but BHPL may have been relying on a construction arising from s 15 of the Leases (Commercial and Retail) Act for its Defence. I reject any such argument. That section simply provides that where an assignee conducts its activities in a way that would exclude the lease from the application of the Act by virtue of s 12, then the Act does not apply while the assignee is a lessee of the premises. That has no relevance here.

159. A second, somewhat different argument is relevant to the liability of BHPL, though not directly relevant to the issue of whether the arrangements constituted a new lease or an assignment.

160. TTC's Statement of Claim alleged that on or about 6 December 2015, following the sale of the Hyperdome to TTC, Leda's interest as lessor in the Sublease was assigned to TTC.

161. BHPL declined to admit this allegation but further said that no notice of any such assignment had been given to BHPL. In its reply, TTC did not assert that any notice had been given to BHPL but relied on the operation of law.

162. As with a number of the other matters to which I have referred, this was not the subject of express further submissions. Nevertheless, it seems to me that there is no basis for the pleaded Defence by BHPL relating to this issue.

163. I am satisfied that, as pleaded in the Statement of Claim, Leda's interests as sublessor in the Sublease were properly, legally and effectively assigned to TTC. The transfer was registered under the Land Titles Act, as noted above (at [153]). As a consequence, by s 78 of the Land Titles Act, the interest Leda had in any debt, sum of money or damages payable under the assigned lease was transferred to and vested in TTC.

164. Any requirement for notice in respect of the assignment of a debt arose under s 205 of the Civil Law (Property) Act 2006 (ACT). That Act, however, does not apply where it is inconsistent with any provisions of the Land Titles Act: s 5 of the Civil Law (Property) Act. For the reasons already stated, the Land Titles Act provisions are inconsistent.

165. Accordingly, the lack of notice, if there was such, did not affect the right of TTC to sue under the lease: Property Builders Pty Ltd v Adelaide Bank Ltd [2011] NSWCA 266; 15 BPR 98,491 at 29,418; [40].

166. Further, BHPL did pay rent to TTC after the assignment and, it is clear from a number of exhibits, including emails to Ms Hungerford, and letters she sent to BHPL by TTC as landlord, that she knew there was a change of landlord.

167. This seems to me to constitute an attornment by BHPL. An attornment is an acknowledgement by a tenant of the change of owner of the reversionary interest in the premises: Cornish v Searell (1828) 8 B&C 472 at 476; [1828] EngR 39; 108 ER 1118 at 1119. As Brereton J pointed out in Adamow v Kirk (1958) 75 WN(NSW) 514 at 518 "[t]he commonest and simplest form of attornment is by tender and acceptance of rent". The tenant must, of course, be aware of the change: Fenner v Duplock [1824] EngR 507; (1824) 2 Bing 10 at 11; [1824] EngR 507; 130 ER 207 at 208. Such an attornment then creates an estoppel: Partridge v McIntosh & Sons Ltd [1933] HCA 38; (1933) 49 CLR 453.

168. Thus, BHPL cannot deny that it was a tenant of TTC.

169. What is particularly unclear is that, because of the circumstances of the variation which showed Giving & Living Pty Ltd as the lessee, it may be that the disclosure statement was required to be given to Giving & Living Pty Ltd and not BHPL. I am fortified in this by the terms of s 15 of the Leases (Commercial and Retail) Act which provides for the application of that Act in the case of an assignment.

170. Nevertheless, the Leases (Commercial and Retail) Act makes no provision for the sanction, if any, that flows from the failure to provide a disclosure statement. None of the provisions for compensation or other orders under that Act on which BHPL relied, namely ss 22, 37 and 81, make provision for the response to a failure to provide a disclosure statement.

171. I note that, when BHPL sought to amend the Counterclaim to insert the pleading that relied on the failure to provide a disclosure statement, no point was taken as to the consequences, if any, of such a failure: Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Ltd [2014] ACTSC 197.

172. Otherwise, there appears to have been no consideration of this issue and I can find no relevant authority on the question.

173. Section 117 of the Leases (Commercial and Retail) Act gives a tenant a right to terminate a lease on 14 days' written notice if the landlord has not given a disclosure statement as required, if the disclosure statement is false or misleading in a material particular or if it omits such a particular. This sanction does not assist BHPL for that time has now long passed. There is no provision for an extension of time.

174. In any event, this is not what BHPL sought, but it claimed damages for breach of the obligation. This was a civil action purportedly based on a breach of a statutory duty.

175. Because there was no submissions on this issue by either party, I need, I believe, to make only the briefest reference to it. I have carefully considered the helpful analysis of when a statutory duty gives rise to a civil action in Carolyn Sappideen and Prue Vines, Flemings Law of Torts (Thomson Reuters Lawbook Co, 10th ed, 2011) at 424-8; [18.20]; and R P Balkin and J L R Davis, Law of Torts (LexisNexis Butterworths, 5th ed 2013) at 515-23; [16.10]-[16.25].

176. In addition, I note that the Leases (Commercial and Retail) Act does provide identified remedies for other breaches of the Act itself or conduct which the Act prohibits. See

177. The fact of these specific provisions, together with the specific provision in s 117 of the Leases (Commercial and Retail) Act relating to a sanction for the failure to provide a disclosure statement, leads me to conclude that there is no civil action for damages for a breach of the obligation to provide a disclosure statement. See Martin v Western District of Australasian Coal & Oil Shale Employees' Federation [1934] NSWStRp 57; (1934) 34 SR (NSW) 593 at 596.

178. The Counterclaim also alleged that the Hyperdome engaged in unconscionable, harsh or oppressive conduct. The pleading was somewhat difficult to follow here as it made a kind of omnibus claim for these other matters. There appeared on the pleadings to be three sources of this: the alleged misrepresentations of Mr Beirne; the failure to provide a disclosure statement and the carrying out of building works on the Hyperdome, including the establishment of the Lifestyle Centre and upgrading of the Courtyard between it and the Target Mall; the erection of pipe railings and a sign in the undercover car park leading to the Coles Door pointing to shops away from the Coles Door; and the introduction of paid parking.

179. Whether conduct is unconscionable has been considered by a number of authorities in the context of the Trade Practices Act. It is clear that its meaning, in that context, is wider than its meaning in the context of "the unwritten law", that is according to principles of equity. See Australian Competition and Consumer Commission v Radio Rentals Ltd [2005] FCA 1133; 146 FCR 292 at 299; [24].

180. In Australian Competition and Consumer Commission v 4WD Systems Pty Ltd [2003] FCA 850; 200 ALR 491 at 544; [184]- [185], Selway J provided the following helpful discussion:

1. The ordinary or dictionary meaning of the word "unconscionable" was explained in Hurley v McDonald's Australia Ltd [1999] FCA 1728; (2000) ATPR 41-741 at [22]:

For conduct to be regarded as unconscionable, serious misconduct or something clearly unfair or unreasonable, must be demonstrated - Cameron v Qantas Airways Ltd [1995] FCA 1304; (1994) 55 FCR 147 at 179. Whatever 'unconscionable' means in s 51AB and s 51AC, the term carries the meaning given by the Shorter Oxford English Dictionary, namely, actions showing no regard for conscience, or that are irreconcilable with what is right or reasonable - Qantas Airways Ltd v Cameron [1996] FCA 1483; (1996) 66 FCR 246 at 262. The various synonyms used in relation to the term 'unconscionable' import a pejorative moral judgment - Qantas Airways Ltd v Cameron [1996] FCA 1483; (1996) 66 FCR 246 at 283-4 and 298.

1. In order to find that conduct is "unconscionable" it is necessary to do more than merely show that the behaviour is misleading or deceptive, or otherwise in breach of some other provision of the TPA. What is necessary is to show that the conduct is so unacceptable that it can properly be described as "unconscionable". Normally it might be expected that behaviour would only be "unconscionable" if some moral fault or responsibility is involved. Normally it might be expected that this would involve either a deliberate act, or at least a reckless act. Mere unreasonableness or unfairness may not be sufficient, at least in the absence of some moral fault. This is why it was critical to the conclusion he reached in Simply No-Knead that Sunberg J was able to find an "overwhelming case of unreasonable, unfair, bullying and thuggish behaviour". Of course, those words are not a definition of "unconscionable". But having made that finding it is quite apparent that the behaviour could properly be characterised as "unconscionable".

181. I deal with the representations of Mr Beirne later and also the matters relating to the building works.

182. So far as the failure to give a disclosure statement is concerned, I do not consider it comes, in the circumstances, to being even close to amounting to unconscionable conduct.

183. The establishment of the Lifestyle Centre cannot be regarded as such conduct because it was established prior to the sale to BHPL of the Giving & Living business.

184. So far as the other works are concerned, I deal with those at some length below. There is, however, no basis for the allegation that the development of those works constituted, unconscionable, harsh or oppressive conduct within the proper meaning of the term. It is, therefore, unsurprising that there were no submissions by BHPL on this issue.

Representations and misleading or deceptive conduct

185. So far as any representations or misleading or deceptive conduct might be actionable under the Leases (Commercial and Retail) Act are concerned, there is the same conduct for which claims are made under the Trade Practices Act and the Fair Trading Act.

186. The only basis for such a claim is under s 22 of the Leases (Commercial and Retail) Act, namely that such representation or conduct is unconscionable or harsh or oppressive. It is not clear what, if anything, "harsh and oppressive" adds to the notion of conduct being unconscionable.

187. Even if any representations are made or TTC/Leda engaged in any misleading or deceptive conduct, I am not satisfied that such conduct in this case could come near the correct application to it of the term unconscionable as interpreted by the High Court in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; 214 CLR 51. See, for example, per Gleeson CJ at 64; [14]. There was here none of the "high degree of moral obliquiry" required by Spigelman CJ in Attorney-General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; 63 NSWLR 557 at 583; [121].

188. The pleadings did raise the issue of the contribution BHPL was required to make to the outgoings of the Hyperdome. It was alleged that TTC/Leda had overcharged BHPL for its contribution because of a failure to give required notices to BHPL, that the amounts claimed were not in accordance with ss 70 and 71 of the Leases (Commercial and Retail) Act and an expenditure statement and auditor's report as required by clauses of the Sublease.

189. BHPL alleged that the conduct of TTC/Leda breached ss 65, 66, 70 and 71 of the Leases (Commercial and Retail) Act because of these alleged failures as well as various terms of the Sublease.

190. It was alleged by BHPL that the breaches of the terms of the Sublease meant that BHPL was entitled to terminate the Sublease because of these breaches.

191. Again, no substantive submissions were made as to these issues and Ms Hungerford gave no evidence about them.

192. On the other hand, TTC/Leda did adduce evidence about those issues. The evidence was not challenged and the deponent to the relevant affidavit, Jeremy Watson, was not cross-examined.

193. The evidence was that, contrary to the pleaded allegations of BHPL,

(a) written estimates of the outgoings that BHPL was required to contribute under the Sublease were given at least a month before the start of each accounting period, except in 2004 when the estimate was given on 4 June 2004 for the accounting period commencing on 1 July 204; and

(b) written reports prepared by auditors were sent to BHPL within 3 months of the end of each accounting period, except in 2006 when the report was sent on 16 October 2006 for the accounting period ending on 30 June 2006.

194. The Leases (Commercial and Retail) Act makes no provision for any sanction for non-compliance with these provisions. For the reasons generally set out above (at [175]-[177]) lead me to the view, though in the absence of submissions from BHPL that any breach of these provisions does not given BHPL a civil cause of action, an entitlement to terminate the lease, especially as such terms in the Sublease cannot be regarded as essential terms or serious breaches of innominate terms, or to decline to pay the amounts demanded, if otherwise payable. See also Dovastand Pty Ltd v Mardosa Nominees Pty Ltd [1991] VicRp 68; [1991] 2 VR 285.

195. Neither the pleadings nor any particulars supplied to me identified the way in which any of the claims for outgoings breached any provision of ss 70 or 71 of the Leases (Commercial and Retail) Act. I have inspected the claimed expenses and none seem to me to be outside the permitted range of recoverable outgoings. The term "outgoings" is a term "of very wide import" which include "the ordinary expenses of cultivating and managing the property": Newman v McNicol [1938] NSWStRp 46; (1938) 38 SR(NSW) 609 at 625. I see no reason not to construe the relevant legislative provisions in the light of the common law.

196. Another issue raised in the proceedings but which was not addressed by either party, although pleaded was the limitation period in the Trade Practices Act and the Limitation Act as a matter of defence in TTC's Defence to the Counterclaim and Leda's Defence to the Third Party Claim. This may require that it be addressed unless it can be shown that the relevant party, in this case TTC/Leda has abandoned the defence. I have been unable to find any relevant direct authority.

197. On the other hand, it is clear that the limitation issue must be pleaded before a court can consider it: Piscioneri v Reardon [2015] ACTSC 61 at [54], [56]. See also Piscioneri v Reardon [2016] ACTCA 33 at [46].

198. The pleading in this case was that any cause of action pleaded by BHPL, since arising prior to 20 February 2006 is barred by statute. The basis on which that date has been chosen is not clear. The proceedings were commenced on 20 February 2008. While the reference to 20 February is consistent with the pleading, the year is not.

199. The reference to 20 February 2006 would provide only for a two year limitation period. There is no basis for so finding.

200. On the other hand, BHPL filed its Defence and Counterclaim and its Third Party Claim on 10 August 2009.

201. So far as TTC is concerned, the end of the limitation period for the claims of BHPL against it under the Counterclaim is 20 February 2008, for s 51 of the Limitation Act provides that the claim in such a counterclaim is brought on the date when TTC became a party to the original action, namely 20 February 2008. This is a statutory modification of what was formerly regarded as the position, namely that the limitation period for a counterclaim (as opposed to a set-off) ended when the counterclaim was commenced: Lowe v Bentley (1928) 44 TLR 388.

202. Leda, however, was not a defendant to the Counterclaim issued by BHPL. The similarity between the Counterclaim and the Third Party Claim, however, suggested that it had a similar position in the proceedings.

203. It appears from Nelson v Wyong Shire Council (1989) 68 LGRA 164 at 167-9, that a Third Party Claim may be encompassed within s 51 of the Limitation Act which provides for the application of the Act to claims made by "set-off, counterclaim or

cross-claim". It is to be noted that the procedure in New South Wales was under consideration in that decision. In that jurisdiction, "cross-claim", includes a third party claim: s 22 of the Civil Procedure Act 2005 (NSW) (replacing s 78 of the Supreme Court Act 1970 (NSW) which was applicable at the time of that decision, though in similar terms). Ordinarily, a cross-claim would, however, be a claim against another party, that is the plaintiff or a co-defendant and not a third party claim.

204. A claim in third party proceedings is usually contingent upon the defendant's liability to the plaintiff. In such a case, the cause of action would not arise until the defendant's liability is determined: Allman v Country Roads Board [1959] VicRp 81; [1959] VR 614 at 619-21, approved in Kheirs Financial Services Pty Ltd v Aussie Home Loans Pty Ltd [2010] VSCA 355; 31 VR 46 at 52; [20]. In that case, the cause of action accrues when the plaintiff was given judgment against the defendant for a cause of action in respect of which the defendant may be entitled to compensation. See s 21 of the Limitation Act.

205. This is not the case here. In effect, BHPL is seeking to litigate the same claim it is litigating against TTC in the Counterclaim. In those circumstances, it would seem that the third party would be in the same position as a non-party defendant to a counterclaim and s 51 of the Limitation Act would apply. That is to say, the action commences, for the purpose of the Limitation Act, when Leda became a party, namely when the Third Party Notice was issued. That was 10 August 2009.

206. Thus, the claims must have been brought within the limitation period in both cases and that period must not have ended, in the case of TTC before 20 February 2008 and, in the case of Leda, before 10 August 2009.

207. The limitation period commences when the cause of action accrues. A cause of action accrues when every fact has come into existence which each party must prove, if traversed, in order to support her, his or its right to judgment: Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 52 ALR 231 at 240; Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 558.

208. It is clear from Wardley Australia Ltd v Western Australia at 525, 551, that the statutory cause of action under s 82 of the Trade Practices Act, or s 46 of the Fair Trading Act, arises only when the actual loss or damage is sustained.

209. It is not entirely clear when this may be, for, in this case, there were ongoing losses that BHPL says it suffered from the relevant conduct. That loss, however, seems to have flowed from the entry into the contract of sale at the earliest and possibly the entry into the Sublease. The former was on 21 August 2003, the latter on 4 November 2003. These, then, must be the earliest dates on which the cause of action accrued. The latter date is consistent with the approach of this question in cases such as Emanuele v Chamber of Commerce and Industry SA Inc (1994) ATPR (Digest) 46-121 at 53,570, namely that, when BHPL became the assignee of the Sublease (or the new sublessee under the Sublease), it was unconditionally bound by the Sublease to make payments which constituted at least part of the loss and damage it alleged it suffered.

210. The only question, then, is the length of the limitation period. Under s 82(2) of the Trade Practices Act, that period was initially for three years, but in 2001, by the Trade Practices Amendment Act (No 1) 2001 (Cth), the period was extended to six years. Thus, in 2003, the period was six years from the date on which the cause of action accrued.

211. As to the Fair Trading Act, no period was specified in 2003. Thus, the general period set out in s 11 of the Limitation Act applied. This, too, was six years.

212. Accordingly, I am satisfied that the limitation period for the claim of BHPL against both TTC and Leda was six years.

213. The dates of 20 February 2008 and 10 August 2009 both fall within six years from 21 August 2003 and, per force, from 4 November 2003.

214. Accordingly, there is no bar to the claims under the relevant limitation provisions for the claims made by BHPL in these proceedings.

215. Because of the findings I have made about some of the representations about which BHPL made complaint, it will not be necessary to address all the evidence given unless relevant for the issues that remain.

216. On the second day of the proceedings, namely 17 September 2014, the Court viewed the Hyperdome and its surrounds. It was helpful and the Court appreciates the assistance of the lawyers for the parties and the staff of the Hyperdome for facilitating the view.

217. Although, since the events the subject of these proceedings, the premises have changed in a number of respects, some of which were the subject of evidence in these proceedings, the general layout was the same as that at that earlier time and the view was very helpful in allowing me to get a physical picture of the Hyperdome generally and the Premises. Relevant changes were pointed out to me.

218. Representatives of the parties, as well as counsel and instructing solicitors for both parties, were present during the view and counsel pointed out relevant features. The conversations were not recorded by the Court's transcription services but, in my assessment, nothing was said that was not later stated or implied from evidence actually given in Court.

219. The view was entirely conducted for the purpose of enabling me to understand the issues in the proceedings, the evidence adduced and how to apply it. I did not, however, put the results of the view in place of evidence. There was no agreement between the parties for me to do that and I did not do so. See Scott v Numurkah Corporation [1954] HCA 14; (1954) 91 CLR 300 at 313.

220. Brenda Hungerford was the sole shareholder and owner of BHPL. She had made some affidavits that were filed but not read. All her evidence was given orally.

221. She had been for many years a financial planner. In 1985 she was the Branch Manager of St George Financial Planning at Parramatta moving into financial planning in April 1987. In 1988, she became General Manager for Nelson Parkhill BDO and in 1990 became General Manager of NWA Financial Services Pty Ltd.

222. From 1990 to 2000, she owned her own financial planning practice with a dealer's licence from 1996, Hungerford Financial Services Pty Ltd. In July 2000, her practice merged with another practice, to become Halliday Financial Services Pty Ltd of which she became Director and Financial Advisor. She left the merged practice in February or March 2002. She then commenced her own practice in business consulting and share trading, Hungerford Management Pty Ltd.

223. As a financial consultant, she managed portfolios of her clients' investments, giving business advice as to tax strategies and effective ways of managing her client's portfolios, both in superannuation and other investments.

224. She later undertook business consulting through the commercial division of LJ Hooker Ltd, a real estate agency, and also some retail consulting on the South Coast for a large store there. Some years prior to that, she had owned a retail business of Herbal Solutions in Annandale, but she did not seem to rely on this experience, judging by her evidence.

225. She was a Certified Investment and Financial Advisor and had been a Senior Associate of the Australian Financial Planning Association since 1993. In 1996, she obtained an Investment and Security Dealer's Licence and became a Dealer Member of the Financial Planning Association in 1997. She was a Member of the Australian Institute of Company Directors.

226. In April or May 2003, she started thinking about other investment opportunities. At that stage, she had a fairly substantial financial portfolio in excess of $3 000 000, made up of savings, real estate, shares and a superannuation account. She was looking to invest in a managed business without needing to work in it on a day-to-day basis.

227. She spoke to Philip Roberts of LJ Hooker Woden to see if such a business might be available. The business she was looking for was one that was effectively and profitably managed by somebody, but of which she would have overall control.

228. Mr Roberts gave her some suggestions and she also investigated opportunities through trade magazines.

229. In about early June 2003, Mr Roberts referred her to the Giving & Living business. It sounded of some interest to her.

230. As a result, she went to the Hyperdome to familiarise herself with the Centre and the business, though, oddly, she had also said she was already familiar with it. She had a look at the shop and the Hyperdome. She looked at the number of people in the Coles Mall and familiarised herself with the area around the Hyperdome as well.

231. At that stage, Ms Hungerford was living on the South Coast and, when she drove up, she parked in the multi-storey car park outside the Coles Door. She found a chair outside the Giving & Living shop and sat there and watched the people a number of times. She visited the shop a few times, until finally she introduced herself to the director, Mr D'Amico.

232. Mr D'Amico gave her carte blanche, allowing her to talk to any of the staff and for them to give her any information. She was given access to the daily diaries filled in by staff at the end of each day to show sales information. She was also given access to reports of takings and expenses.

233. Mr D'Amico gave her some accounting figures which she forwarded to her accountant with the daily diary figures.

234. She confirmed her interest in the shop with Mr Roberts. She walked around the whole of the Hyperdome, looking in the Target Mall and the Lifestyle Centre. She noticed that there were not many people in the area that linked the Lifestyle Centre and the Target Mall, to which I will refer in these reasons as "the Courtyard". That she undertook such investigations was not generally challenged, though the extent of some of it was disputed.

235. She made an appointment to meet Mr Beirne on 10 July 2003 to discuss the sale. Mr Beirne was very welcoming and they had a good conversation.

236. She told Mr Beirne that she was interested in purchasing and investing in the Giving & Living business and she said Mr Beirne told her, "It is a good business to invest in, and it has the second highest door count".

237. According to her, the conversation continued as follows: Ms Hungerford said, "I am interested in the marketing that the Hyperdome does. This is an important part of my considerations that the advertising and marketing is appropriate". Mr Beirne then said, "The marketing of the Hyperdome is very good quality and you will be able to take part in the marketing campaigns". He continued, "There is also in-house radio advertising" and he made it clear she would be able to take part in that also. This, she understood was announcements that were made throughout the Hyperdome using its public address system.

238. Ms Hungerford said that, by this time, she had found out about residential developments around the Hyperdome and new government offices, now the Caroline Chisholm Building, being erected. She also noted other buildings being constructed in the area. She was aware that the LJ Hooker office in Tuggeranong was the "highest selling office in the world".

239. As a result of this knowledge, she asked Mr Beirne about the developments and, according to her, he said, "I also know about the developments, and it is a very good thing - going to be very good for Giving & Living that the developments are happening".

240. Mr Beirne then requested her to complete an application for a tenancy and, before she could be accepted as a tenant, the application had to be accepted. She had, at that time, explained some of her background to Mr Beirne.

241. Her evidence was that she then said, "Is there anything that I need to know about why Ric D'Amico is selling his business?" and Mr Beirne said, "No, it's a very good business and you will do very well. It is the second highest store. You will do well with that".

242. The words used in the second last sentence of that answer are odd. The reference to "second highest store" has little meaning in this context. It was not the subject of a pleading. Further, Ms Hungerford had earlier said that the actual words used by Mr Beirne were, "... it has the second highest door count". See above (at [236]). Even that is an odd answer.

243. This evidence shows some of the problems with Ms Hungerford's testimony. It seems to me that, because Mr Beirne himself conceded that he had told her that the Coles Door had the second highest foot traffic count in the Hyperdome, these two statements were intended, in a rather unsatisfactory way, to refer to that statement Mr Beirne acknowledged that he had made.

244. Ms Hungerford then said that she asked Mr Beirne, "Is there anything about the Hyperdome that I need to know that would affect my investing in Giving & Living?". She said in evidence that Mr Beirne said, "No, there is nothing".

245. She took the application form away and completed it over the weekend. It required her to disclose her assets and liabilities, personal details, bank accounts, and also to set out a retail plan.

246. As a result of her conversation with Mr Beirne, however, she rang Mr Roberts and told him that she was prepared to proceed with the purchase of the business and, on 11 July, paid a 10 per cent deposit of $23 500 from her superannuation fund account.

247. She then submitted the tenancy application form on 14 July 2003. This included her curriculum vitae as the director of BHPL.

248. That document, which was in evidence, showed Ms Hungerford's involvement in the financial services sector. The information about her background is described above at [226]-[228].

249. In the tenancy application, she showed an anticipated annual turnover of $750 000 in the first year rising to $825 000 in the second year and $900 000 in the third year, an annual increase of 10 per cent. She also prepared a 12 month cash flow from August 2003 to July 2004.

250. She gave the tenancy application to Mr Beirne on 14 July 2003, noting that she had included a retail plan which showed that her sales would increase by 10 per cent each year. She told him that she intended to sell the business in two to three years.

251. She said that, when meeting Mr Beirne on 10 July 2003, she had also told him that she wanted a new lease to extend the current term by two years so that she would then have at least a three to five year lease to sell the business.

252. She told Mr Beirne, "Because I am taking an extra two years on the lease, I would expect that I would be able to get a discount on the lease because of taking the extra two years". Mr Beirne said, "That this would not be possible because the rent was currently at market rate". Mr Beirne also said, "You will be required to have a bank guarantee of three months rent".

253. In relation to the extension of the term of the lease, Mr Beirne said, "We would be able to do a lease on no less terms than had previously been with Giving & Living".

254. Ms Hungerford said that, on 14 July 2003, Mr Beirne told her, "I am very glad that you are purchasing the business. You will do very well with your background and I will put the application into Leda".

255. Her evidence was that she then proceeded to negotiate the precise terms of the purchase of the business from Giving & Living Pty Ltd. She also continued with what she described as her "due diligence". She visited the Hyperdome, familiarising herself with it and ensuring that the foot traffic was going to substantiate the figures that she had been given. She continued her investigations at the Hyperdome and the surrounds to ensure that before she exchanged contracts she was doing the correct thing as far as her investment was concerned.

256. In particular, she said that she saw in the Coles Mall people coming in the door at approximately 25 people per minute at 11:00am in the morning. She said that she had done this on one occasion in mid-week and then corrected herself and said that she did it on several days on about six occasions at different times. She noted that there was often a queue at the counter in the Giving & Living shop and that people were being well serviced by the staff. She noted that the shop had a large kitchenware section and described it as a "specialist kitchen shop as well as homewares". She saw there was a great deal of interest in the kitchenware side of the shop as well as the homewares.

257. She saw people whom she described as wearing "ID tags" going into the shop and she identified them as employees from government offices. She also noted people walking across the government car park under the multi-storey car park into the Coles Door. She noted that there were extra staff in the shop between 11:00am and 3:00pm on weekdays.

258. Mr D'Amico had told her that lay-by transactions were an important part of the business and she noted people paying deposits for lay-bys in the shop.

259. She also noticed people coming across the government car park had crossed at the traffic lights at the Athllon Drive/Reid Street North intersection from the government offices.

260. On 21 July 2003, she had incorporated BHPL, as I noted above (at [24]). It was to be the vehicle through which she was to purchase the business.

261. On 21 August 2003, contracts between BHPL and Giving & Living Pty Ltd were exchanged for the purchase of the Giving & Living business. Settlement occurred on 1 September 2003 when BHPL took control of the business.

262. After exchange of contracts, Ms Hungerford went with the store manager, Claudia Montagner, to a trade show where suppliers demonstrated their products and arrangements for bulk-buying of products were made by retailers. She submitted credit applications to various suppliers and bought goods from existing suppliers as well as from new suppliers.

263. In the first quarter after purchase of the business, she attended at the shop on a weekly basis, although sometimes she was there more than once a week. She retained Ms Montagner as the Manager of the store and made no staffing changes at that stage. Apart from some new suppliers with whom she had made arrangements at the trade show, there were no changes that she made at the shop.

264. During this quarter, she received daily accounting from the staff of the shop. These were daily run sheets which accounted for all cash and EFTPOS transactions and any cheques, though there were very few, and it detailed all expenses that were paid. Ms Montagner prepared those or, if she was not there, the next most senior person in the shop did so. The documents came to Ms Hungerford by facsimile transmission.

265. Ms Hungerford kept a graph at home and a chart of these reports. She also faxed them to a bookkeeper, operating the Mind Your Own Business (MYOB) accounting package for the business, and reporting the results to her accountant on a weekly basis.

266. When she attended at the shop, she photocopied the daily diaries. She also prepared the necessary work for payment of all the wages and superannuation contributions. She prepared graphs of income and expenditure from the reports in the daily diary sheets. Towards Christmas, however, she visited the shop more frequently and obtained information on each visit.

267. She also received all the suppliers' invoices and, it appears, arranged for payment.

268. The graphs she prepared had daily, monthly and annual figures for gross sales.

269. As a result of this monitoring of the affairs of the business, Ms Hungerford found that the retail turnover for the shop had fallen steadily; a reduction of about 50 per cent of retail turnover since the purchase of the business up to November 2007.

270. It appears that the figures prepared by the MYOB system were presented to the management of the Hyperdome. Ultimately, the management of the Hyperdome were also given BHPL's balance sheets and profit and loss accounts. The monthly sales figures required to be provided to the Hyperdome, however, were submitted on a document pro forma that the Hyperdome management required BHPL to complete.

271. In early 2004, Ms Hungerford found that Ms Montagner was completing that form for the Hyperdome management but discounting the sales figure by 20 per cent. Ms Hungerford asked her why she was doing that and was told that it was the practice employed by Mr D'Amico previously. Ms Hungerford said that she did not want that to continue. She said, "You can't do the figures that way. They cannot be discounted. I need you to give the Hyperdome [the] figures as they are" and Ms Montagner agreed to do that.

272. She then reported to the Manager of the Hyperdome who, by that time, was Mr McCann, that the figures had been discounted by 20 per cent and that she had instructed her staff not to do that anymore. It is not clear what, if anything, resulted from that report.

273. Ms Hungerford also gave evidence that the Hyperdome layout changed after BHPL had commenced conducting the Giving & Living business. The changes started from November 2003 and continued through to December 2006. Initially, she noticed that barricades were erected on the perimeter of the multi-storey car park and also in the Courtyard. Steel barriers were erected in various places, and new footpaths and kerbing were constructed. Ms Hungerford said that the effect of these changes was to cause people coming to the Hyperdome to approach the building from another direction and enter through other entrances than through the Coles Door.

274. Temporary metal barriers were erected where workers were engaged in building the developments.

275. Steel pipe barriers were, she said, erected along the perimeter of the ground floor of the multi-storey car park. Low brick walls were built on the government car park side of the path or roadway leading into the Courtyard.

276. Ms Hungerford said she also saw other work, including pavings and preparatory work in the Courtyard, where, also, there were constructions barriers.

277. After February 2004, Ms Hungerford said she saw construction work in the Courtyard and around the Lifestyle Centre. This appeared to continue into 2006. She did not actually know what the works were, but she saw people working in and around the area.

278. In January/February 2004, she noted parking booths being erected and that outdoor car parking was being prepared for paid parking to be introduced into the Hyperdome multi-storey car park.

279. Ultimately, paid parking was introduced; Ms Hungerford thought that it was introduced in February 2004 but, in fact, it was introduced on 1 March 2004.

280. Thus, customers who wished to park in the multi-storey car park had to go through a barrier by collecting a ticket and, on exit, give a ticket to an attendant in a booth and pay fees. Initially, Ms Hungerford said that she understood that parking fees were charged from the beginning of the time when a car entered the car park but, at some point, the system was changed so that the first three hours of the parking was free. At the time, as she understood it, Ms Hungerford said that the government car parking appeared to have paid parking also. Ms Hungerford said that she had not been told, at any time, about the introduction of paid parking and, in particular, had not been told of it by Mr Beirne in her meeting with him on 10 July 2003.

281. Similarly, no-one had told her about the construction of the steel pipe barriers along the edge of the multi-storey car park and, in particular, Mr Beirne did not mention that in his meeting with her on 10 July 2003, nor did he mention the erection of the low brick wall, both items which she said inhibited people who crossed the government car park from going on into the multi-storey car park and through the Coles Door, though she gave no details of how she arrived at that conclusion.

282. Similarly, with the work being done in the Courtyard, Ms Hungerford said that she had not been advised about it prior to its commencement and, in particular, no-one from the Hyperdome had mentioned it to her.

283. Photographs of the steel pipe barriers were admitted into evidence. Ms Hungerford said that, although the photographs were taken in 2012, the barriers and their location had not changed since they were installed. She also identified a bollard next to the pedestrian crossing across the ground floor of the multi-storey car park. That also was not there in September 2003.

284. Ms Hungerford pointed out some of the development in the Courtyard which had not been there when BHPL took over the Giving & Living shop in September 2003.

285. She identified improvements that had been made on the westerly side of Athllon Drive around the government offices where pathways had been constructed leading to the traffic lights at the pedestrian crossing on Athllon Drive leading to the entrance to the Lifestyle Centre. This, of course, was not development undertaken by the Hyperdome owners.

286. Ms Hungerford referred to the traffic lights at that pedestrian crossing across Athllon Drive. She said that she did not know that they were going to be installed, but became aware of them in early February to March 2004. No-one from the Hyperdome had told her about the installation of these lights.

287. Ms Hungerford then gave evidence about the conduct of the Giving & Living business. That changed, to some extent, when she terminated the employment of Ms Montagner and appointed another employee, Lina Sutherland, to take over as manager at the end of June 2004. Ms Sutherland had been a casual employee, but as manager worked full-time in the store. From that time, however, Ms Hungerford had a somewhat more "hands-on role". She did not explain precisely what this meant.

288. She reduced the hours of the casual staff from about February 2004 as a result of the fall off in patronage. She had noticed that there was a reduction in the number of people walking through the Coles Mall though she did not do any counting. She raised the issue with Mr McCann in about February. In response, Mr McCann then offered her a casual leasing of a kiosk in the Target Mall. At the time, Ms Hungerford also noticed the difference in the number of customers.

289. Her evidence was that the sales figures in October and November 2003 were up slightly but that the sales figures in December 2003 had declined and the decline continued from then on until BHPL abandoned the premises.

290. In January and February 2004, she realised that she needed to take some action and that was when she reduced the number of casual staff and, in March 2004, let the second full-time sales person go.

291. So far as the casual staff were concerned, there would be two people in the store between 11:00am and 3:00pm, but not every day of the week.

292. In February 2004, she attended her second trade show and, as a result, introduced the sale of jewellery. Her "diligent and experienced staff" also took part in a major effort to keep the shop looking as good and attractive as possible. There was also a change in the lay-by business which continued until, in 2005, she cancelled it except for lay-bys over $200. The number of sales through lay-by had been declining steadily from November 2003. At the time, she was selling nativity scenes at Christmas time which, she said, people loved, but were always put on lay-by because they were sold for between $300 and $400.

293. Her evidence was that, when she had been undertaking her due diligence prior to purchase, there were "always people in the store and their [sic] [was] often a queue at the counter" but that over Christmas 2003, it was only necessary to have three instead of five employees and then she needed only two.

294. So far as the jewellery she introduced was concerned, it consisted of smaller, cheaper items, which she said were very popular. They included items such as bangles and necklaces of a price from $10 to $30.

295. In 2004, she opened two additional stores, one in Manuka in June 2004 and one in Yarralumla in July 2004. The Manuka shop was not an existing business but she purchased the lease and established the business from the beginning. She used some stock from Tuggeranong.

296. The Yarralumla shop was, in fact, an existing business, which she purchased for about $23 000. The stock there had, however, become run down; therefore she filled the store with stock from Tuggeranong. Each of these two stores were much smaller in size than the Tuggeranong store.

297. There was, however, no real difference between the stock on offer between the three stores, although there was less kitchenware in the two smaller stores, especially not larger items such as saucepans.

298. Ms Hungerford next explained that, in her view, the marketing at the Hyperdome was of an extremely poor quality.

299. Up until June 2004, Ms Hungerford did use the in-house radio advertising through the public address system of the Hyperdome, although she said it was not successful. She participated in Hyperdome catalogues for special occasions such as Christmas, Mother's Day and Easter, but she said they were of poor quality. None were in evidence.

300. She undertook some advertising of her own. She arranged for a designer to design a new logo for the store and she undertook some catalogue drops herself. She also purchased radio and television advertising for about five months. It became, however, too expensive and was not bringing in sufficient custom.

301. She could only justify marketing on her own account through radio and television if she could spread it over the three stores. She also hoped that the two new stores would support the cash flow for the Hyperdome store. She gave no specific examples of what she said was the poor quality of the marketing of which she complained.

302. When she opened the Manuka and Yarralumla stores she changed the name of the Tuggeranong store to "Hungerfords" and used that name for the two new stores. She said that she had to change the name because of an agreement with Mr D'Amico which was that she "was only allowed to have that one shop with the name Giving & Living".

303. Ms Hungerford also arranged for tea and coffee to be sold at the Tuggeranong store from about June 2005 but stopped it in about October because it was not helping sales and income and it took up floor space with the tables and chairs.

304. In 2005, Ms Hungerford took on more of the day-to-day role in the business and was in the shop quite often. She actually took over the management of the store in December 2005. From that time, she was in the store three to four days a week and at Christmas time five days a week.

305. In April 2006, she travelled to China to attempt to work out a way of reducing the cost of stock. A friend introduced her to a Chinese man who introduced her to suppliers in China. A bit oddly, she actually said that she made six trips to China from 2004 to 2007. The stock she bought from China was similar to stock that had previously been in the store, save for the kitchenware; she did not buy stainless steel items from China. The difference in price was very significant and, for example, she mentioned that the jewellery was about 10 times cheaper than jewellery supplied in Australia. The jewellery had the highest profit margin but also glassware, chinaware and candles sourced from China were all items that had much higher profit margin than from sales of similar stock she could acquire in Australia.

306. She said that she noted that the foot traffic in the Coles Mall continued to decline steadily, especially early in the morning. She had no actual evidence of this, even compared to the figures she had obtained from her due diligence. She had noted, when doing due diligence, that there were people waiting at the door to enter at 9:00am but said that this rarely happened from 2004. Indeed, she said that the Coles Mall did not have shoppers until about 10:00am and, while the numbers then increased, that was only by a few more people.

307. During this time, she visited the Target Mall and noticed that there were far more people in the Target Mall, especially at the end nearest the Lifestyle Centre, though it was unclear from what base she was able to say there was an increase. These numbers were, she said, not that high in 2003, though she had no exact figures for this. She also noticed that those people using the Coles Mall did not appear to have the ID tags that she had noticed before. She did notice people with such tags, however, in the Target Mall and also in the Food Court of the Hyperdome. Her evidence as to this was rather anecdotal and unsatisfactory.

308. She gave evidence about conversations she had had with Mr McCann. In light of my findings about the representations he is alleged to have made, I do not need to deal with those.

309. She did, however, obtain some casual leasing within the Target Mall where she could set up a small store as a temporary kiosk. She had to pay a fee of $1500 for the week. She also had to hire a cash register and arrange for stock and a full-time staff member but, at the end of the week, sales in the main shop did not increase and the expenses did not justify the temporary casual leasing.

310. Ms Hungerford said that she did speak to various people including Mr McCann and Mr Cooper about the falling numbers of people in the Coles Mall.

311. In August or early September 2004, Ms Hungerford spoke to Mr McCann about the rent which was due to increase from 1 September 2004. She says that she told Mr McCann, "The foot traffic has fallen so much in the Coles Mall and my sales have been declining and I am hoping that you can give me some help and that the increase in rent should be absorbed by the Hyperdome because of the decline in people and also the decline in my sales". She was told to put the request in writing which she did. She received no reply from the letter.

312. She had a further conversation with Mr McCann in 2005 and she described it as "a good conversation with him". She again described to him the problems she was having with the store and the declining sales figures; she asked for rent relief. Again, I have addressed this conversation and do not need to repeat it.

313. On 27 March 2006, she sent an email to Mr McCann pointing out that the shop had an all-time low in sales the previous day with sales income of $168; when she had purchased the shop, the normal daily sales were well over $1000.

314. BHPL continued to operate the Manuka store until the lease expired at the end of 2008 and sold the Yarralumla store in October 2010. BHPL maintained a separate profit and loss account for each store. Ms Hungerford received daily summaries and they were all sent to her bookkeeper. The balance sheet, however, combined the finances for the three stores.

315. In March 2006, she said that she advertised the sale of the Giving & Living store through a broker. One person expressed an interested in all three shops. The interested purchaser consulted Mr Cooper who, she thought, was the Leasing Manager of the Hyperdome at the time. She then had a conversation with the broker and, although it was unclear, it appears that the broker was told that the purchaser was no longer interested.

316. As a result, she went to see Mr Cooper and said to him, "You're giving me the mushroom treatment. You have turned my only good potential buyer away from buying my three stores". Mr Cooper denied that he did that and said that the prospective purchaser, after looking around the Hyperdome, had decided that he would instead set up another store in another location. Ms Hungerford suggested that he was lying but he denied it.

317. She later complained to Mr Lord who, by that time, had become Manager of the Hyperdome. She also had a further conversation with Mr Lord about rent relief. She said, "I have previously applied to Shane McCann for rent relief, though I have had no response, and my figures are still declining and I am getting to the stage where I cannot continue. My assets are being sold down and I have a lot of debts". Mr Lord asked her for a statement of assets and liabilities, which she gave him, and also he wanted it verified by her accountant, as well as being supplied with a balance sheet and profit and loss statement.

318. In late June or July 2006, Mr Lord advised that she had been granted $20 000 a year rent relief. She thanked Mr Lord.

319. She also referred to a conversation she said that she had had when she said Mr Lord had come to her store and commented on how few people there were in the Coles Mall; he said, "You could fire a cannon down this Mall" and she said, "Yes, that is true". Mr Lord then said to her, "Would you like to come for a walk around the Mall to see where you would prefer to be located?" and she agreed. They had a walk around the Mall, mainly the front adjacent to Anketell Street. Mr Lord did show her a small shop at the bottom end of the Target Mall and another one. Both were however much smaller. One was not suitable because it was in, what Ms Hungerford perceived to be, a bad location; the other was in a more reasonable location which she thought would be appropriate.

320. She also had a conversation with Mr Lord about the coffee bar and cafe.

321. The relocation did not proceed. Mr Lord advised her by email that the Hyperdome was not prepared to fund the re-location. He indicated that, should she wish to relocate, she would have to do so at her own cost. He would be happy to discuss it further. She did not proceed with that option.

322. There was also a discussion about a reduction in the size of the store but Mr Lord advised that "[g]iven the amount of vacancies currently within the Centre, we are not prepared to purposely create another at this stage".

323. In May 2006, she invited Mr Lord to publicise her store through the public address system. I assume that this happened, but there was no evidence about it.

324. It was not entirely clear but it was suggested that this was the period of time when Ms Hungerford also pursued the idea of serving coffee and tea in the Giving & Living store but was told that she would have to purchase insurance and draw up a plan for the store. Her earlier evidence had been that this was at least 12 months earlier as noted above (at [304]).

325. When the rental relief was granted to her, it was granted conditionally, including that the relief was only available to BHPL and not to any purchaser of the Sublease or the business. It was only available until her sales increased to $550 000 a year and was conditional upon all arrears being paid immediately.

326. Unsurprisingly, Ms Hungerford was unhappy with these conditions as it was impossible for her to pay the back rent immediately. She was also concerned about the other conditions.

327. Ms Hungerford was sure that she had other conversations with staff of the Hyperdome in 2006 but not recall them. She said that she had further conversations with Mr Lord in 2007 about the business. In particular, in November 2007, he brought to her attention that her rent was $25 000 in arrears.

328. She gave evidence about assistance provided by the Hyperdome in marketing. She did seek the assistance of Hyperdome staff but she said that the help consisted of some posters that were put up and displayed around the Hyperdome. She also expanded her range of jewellery across the three shops and introduced a loyalty card with substantial discounts for people who accrued loyalty points. She undertook a letterbox drop and in-house radio advertising. Sourcing stock from China was also a big part of her efforts to improve sales.

329. By June-July 2007, although she had to keep a minimum of two staff in the store and it was rarely more than that, she found that sometimes she would often be that other member of staff. Only during busy periods, Easter and coming up to Christmas, would she employ further casual staff. She would herself work on Friday nights and over the weekends.

330. Ms Hungerford observed the foot traffic in the Coles Mall still declining in June-July 2007, and although the customers were few in the store, the decline had evened out by 2007. It did not seem to decline further, she said, from early 2007 to January 2008. There were very few people coming into the Giving & Living shop at that time.

331. She again approached Mr Lord for rent relief and it was granted in the sum of $32 000 per annum.

332. In November 2007, she had a further conversation with Mr Lord in which he referred to possible relocation when Bankwest had expressed an interest in the Premises. That, however, fell through. It was during this particular conversation that she was informed that her rent was then $25 000 in arrears.

333. The store continued to trade until January 2008 when it ceased trading because, Ms Hungerford said, she had run out of money.

334. Ms Hungerford was asked about her conversation with Mr Beirne on 10 July 2003. She said that, if he had told her about the developments at the Hyperdome which she had described, she would not have proceeded with purchasing the store.

335. She also said that, if Mr Beirne, when asked by her about whether there was anything she needed to know about the Hyperdome that would affect her investment in Giving & Living, had he told her about the developments at the Hyperdome which she subsequently saw in the Courtyard and around the multi-storey car park, she would not have proceeded with the purchase.

336. She explained that, at the time, she did not need to buy a shop to work in; she had other projects on which she was working as well as real estate developments that she could have progressed with her existing real estate portfolio.

337. She was also asked about the original leasing arrangements. She said that she was aware that, at some point, there was an assignment of interest from Leda to TTC. She said, however, that she did not become aware of that assignment until it was disclosed in these proceedings. She said that the only notification which she received was a letter from the Hyperdome requiring her to pay her monthly rent to another entity. This seemed an oddly casual approach to her leasing arrangements for a self-proclaimed astute business woman.

338. Ms Hungerford was also asked questions about BHPL's obligation to pay a share of outgoings of the Hyperdome. She said that, from time-to-time, she had received documents from the Hyperdome in relation to those outgoings. This confirms the evidence to which I have earlier referred about those documents. She received, through Mr D'Amico, the estimated budget for outgoings for 2003/2004 and other relevant documents.

339. She also gave evidence of borrowing funds from the National Australia Bank (NAB) for BHPL to purchase the Giving & Living business. She said that she had a flexi mortgage, known as the Bingie Facility, from the NAB which was used as a business loan facility secured against her home. She, not BHPL, was the borrower personally on that facility.

340. During BHPL's occupancy of the leased Premises in the Hyperdome, BHPL borrowed money from NAB and from Ms Hungerford personally from time-to-time. The money borrowed from her was borrowed through the Bingie Facility but shown in the books of the business as a loan from her.

341. Many of those loans were still in existence and had not been repaid.

342. Prior to taking over personally as Manager of the business, Ms Hungerford said that BHPL had paid its Manager a salary of $50 000 a year. Apparently, however, she told Mr Peter Haley, an expert witness BHPL retained for the proceedings, that the Manager had been paid $60 000. There was no explanation for this discrepancy.

343. She also said that there was a requirement for Director's fees to be paid by BHPL, but she said that there was no documentation which evidenced that obligation, curiously saying, in answer to a question about any such documents, "Only the cash flow", meaning the draft document produced earlier in the proceedings.

344. Ms Hungerford was then extensively cross-examined.

345. She said that she was currently working as a practice manager for her solicitor and that, as well as generally running the practice and looking after clients and general office duties, she had, under supervision of her employer, day-to-day carriage for the firm of these proceedings on behalf of BHPL. She spoke with experts, for example, and witnesses in regard to the matter and she prepared her own affidavit. That affidavit was prepared in part when she was simply a client and later completed it when she was employed. She also had quite an involvement in the preparation of the proceedings before they came to Court.

346. One part of the proceedings in which she was particularly involved was the discovery process and in the examination of the documents produced on discovery by TTC/Leda. Some of those documents were reproduced as exhibits to her affidavit.

347. She had been working on those documents since late 2008 in conjunction with her lawyer.

348. She agreed that her recollection of events since 2003 or 2004 has faded and admitted that some matters had been hard to recall. These included the exact words of conversations, the dates of those conversations and the like. Without the assistance of reference to documents, including many produced on discovery, she could not remember some dates. The discovered documents assisted her to reconstruct some of those matters. She had, however, some emails and also her own records in addition. She had looked, at all of these to reconstruct the sequence of events of what happened in 2003 and 2004. She had also read her affidavit thoroughly before giving her evidence.

349. She admitted, however, that she had not put before the Court any document in regard to her conversation with Mr Beirne on 10 July 2003. She said that she did make some notes on her computer which had since "died".

350. She agreed, however, that she did not write a letter to the Hyperdome confirming her discussion with Mr Beirne.

351. It is not necessary to detail or summarise the whole of the extensive

cross-examination, although there are a number of areas where that becomes important.

352. For example, it was asserted by her counsel in final submissions that she was "an astute businesswoman". This was based on her accumulation of considerable wealth over her then working life to which I have already referred.

353. She was, however, challenged on that in cross-examination where it was suggested that, despite this description, her knowledge of and qualifications for the conduct of a retail business were not such as to justify the submission of her counsel.

354. She agreed that her only direct involvement in retail business was with the Moruya Shop, Silly Willy's, where she had provided some business consultancy. The report she prepared for that was admitted into evidence.

355. That report set out a proposal for ongoing business consulting and management and dealt at some length with the aims and objectives of the client, the development of staff and some timeframes. It was not entirely clear from the document the extent to which Ms Hungerford would be involved. In some of the aims and objectives there was an express reference to her. In some, however, there was a recommendation for an outside consultant; in others there was no reference to the person who was to undertake the work, whether Ms Hungerford or someone else. In some cases, it was clear that this responsibility was with the owner; in other cases there was just silence on the issue. It was possible that Ms Hungerford would be engaged to do some further work, but, on the other hand, it may have been the owner who would undertake that work, a not unreasonable expectation since part of the proposal was to provide him with the capacity to deliver an efficient retail business. For this, it was likely that he should be directly involved in much of the work.

356. Nevertheless, it was also in stark contrast to the "business plan" submitted to Leda when Ms Hungerford made application for a tenancy. Indeed, in cross-examination, she acknowledged that her business plan for BHPL was "a far departure from what [she] advised Silly Willy's to do" in the draft she had prepared.

357. Ms Hungerford agreed that the turnover estimate in the "business plan" she had prepared for the tenancy application and which was the only one she had ever prepared as part of a business plan was a "ball park back of the envelope calculation" and, at the time of giving evidence, she could not recall the methodology behind the calculations.

358. She agreed that there were no documents containing more detail than the retail plan submitted and that she had not created another one at any other time; it was "all in [her] head".

359. That it was in her head and not in writing she agreed was not in accordance with the proper approach to a business plan, which, she agreed, should be in writing and include details of staff training, financial controls and profitability, development of goals and, more broadly, operational and financial benchmarks. There was no such document for the Giving & Living store. She agreed that this approach was not in accordance with the approach she had taken in the advice she gave Silly Willy's.

360. She denied, however, that the lack of a formal business plan was one of the reasons that the Giving & Living store failed to meet her objectives and expectations.

361. This was, perhaps, even more curious because she had originally purchased the business and invested in it with a "hands-off approach". While she had regular staff meetings, it was only in 2004 that she started looking at marketing strategies and the need to change her original retail plan. She did not have a Standard Operating Procedures and Induction Manual for the staff; she said that this was because most of them had been working there for 10 to 12 years.

362. The contrast between what she had proposed for Silly Willy's and what she had implemented in relation to the Giving & Living store was quite telling.

363. Ms Hungerford also placed considerable emphasis on the due diligence that she conducted prior to the purchase of the business. This was also the subject of significant cross-examination. The following elements as she described them seemed to constitute her due diligence:

Discussion with staff, her observation of the foot traffic, her observation of nearby developments, the delivery of relevant financial documents to her accountant and her discussion with Mr Beirne.

365. The assessment of foot traffic was relatively simplistic and impressionistic. Certainly, initially, she suggested in her evidence that she was quite diligent in assessing that. She said that during the period of 14 July to 19 August, she was looking at foot traffic at least once a week. She was, at that time, also at the store about once a week and talking to staff as frequently. She agreed that the impression she wished to leave with the Court was "that she was performing due diligence on an ongoing basis week by week". It appeared, however, that, between 25 July and 11 August 2003, she was overseas in the United States of America.

366. This meant that, on the basis of her evidence, she could only have been at the shop and noticing the foot traffic on two or at best three occasions, namely between 14 and 25 July and between 11 and 19 August, somewhat less than three weeks.

367. Her impression of the foot traffic for public servants was based on those persons who were wearing lanyards, presumably attached identification tags, and there were no figures or detailed records to which she could refer.

368. This contrasted strongly with the rather more professional approach that the Hyperdome had taken to foot traffic and whose records did not confirm the changes that she noticed. Indeed, it showed that the Coles Door had been the highest or second highest entry point to the Hyperdome by reference to the foot traffic count and continued to be so until BHPL vacated the Premises.

369. While I do not have to make any precise findings about it, although encouraged by TTC/Leda to do so, it seems to me that, consistently with other criticisms of her evidence, Ms Hungerford was attempting to exaggerate the level of due diligence that she had conducted in this area. I address this further below (at [903]-[923]).

370. Nevertheless, I accept that she was aware that foot traffic was an important underpinning for the success of the Giving & Living store and she was aware of a level of what it was at that time of purchase.

371. As to the nearby developments, Ms Hungerford gave evidence of the significance she placed on those developments. For example, the newly proposed public service Caroline Chisholm Building was given pre-eminence because it was to house public servants, a market that BHPL targeted. This was critical for her plan to increase turnover by 10 per cent year-by-year.

372. Her basis for that expectation, however, was quite limited. She relied on what she saw with the developments surrounding the Hyperdome but her investigations were simply that she "drove past them, [and] looked at them". She did not go around building sites. Despite agreeing that it would have been prudent to have "made inquiries", she "chose not to make those inquiries".

373. It was perhaps telling that, in relation to the Caroline Chisholm Building, she was aware that it was one of the more significant developments in Tuggeranong and on which she was relying. Certainly, the building had not even "grown out of the ground" in 2003 when BHPL purchased the business.

374. She understood (that is, did not actually know) that the building was completed in about 2006, thereby making no contribution to her proposed increased turnover. What was telling is that, in answer to the question, "So you can't have been expecting any increased foot traffic from what became the Caroline Chisholm Building, can you?" she responded, "In hindsight, no". Later evidence suggested that the building was not actually tenanted by January 2008 and may not have had significant public service occupancy until later.

375. Despite having worked with LJ Hooker Woden, she seems to have made no inquiries from that agency about its staff's knowledge of the developments at Tuggeranong.

376. She did say that she had been told by "someone" that the development sites would be occupied within two to three years. She could not recall who had told her. That is, in itself, striking because her plan was so dependent upon the increased population within the precinct and it is at least surprising that she could not remember who misled her in such a spectacular way.

377. It also shows that the failure of the business to meet her self-identified targets was related to the delay in surrounding developments.

378. This undermines, to a significant degree, her projected increased turnover which appears to be based on the flimsiest of evidence, contrary to what she, as a management consultant, must have understood to be an appropriate basis on which to found her business plan.

379. The next item was the investigation of the financial affairs of the Giving & Living business which she undertook in conjunction with her accountant, Peter Shaw. She gave him what she said was a bundle of documents. The documents that she identified, however, could not have been provided to Mr Shaw in July 2003 because a number of the documents included financial information for periods well after that, in one case, including some figures for 2007.

380. In cross-examination, Ms Hungerford agreed that she had been in error in saying that the documents had been given to Mr Shaw, although she tried to avoid having to make that concession.

381. It became unclear as to what material she had given Mr Shaw and, therefore, the reliance that could be placed on his advice. That was not an insignificant matter because it appeared that, at the time of purchase, Giving & Living Pty Ltd was in arrears of rent which would have excited careful consideration of the financial circumstances of the business.

382. As part of her due diligence, Ms Hungerford placed considerable reliance on the conversation that she had had with Mr Beirne. Given that this was the basis for one of her primary claims, this is unsurprising. Whether, however, she was relying on it in particular with hindsight was a relevant issue.

383. Despite this, no documents of any kind were produced to the Court in relation to the conversation. That was rather odd given the importance which Ms Hungerford had placed on the conversation and, in particular, the representations she said had been made by Mr Beirne in it, even if she had recorded it later when she saw things happening at the Hyperdome about which she had not been told.

384. Her evidence then became somewhat problematic. It was suggested that no such documents were produced to the Court because there were no such documents but she denied that. She said that she did make them on a computer but that her computer had "died". She was asked a number of questions about the computer in cross-examination and agreed that she did not take any steps to recover the information from the computer. Indeed, she did not know the brand of the computer, whether it was a laptop or a desktop, the model, where she purchased it, or when exactly it "died". She made no attempt to get it repaired because she had spoken with "someone in Moruya, who advised that it wasn't worth fixing". She thought she may have given the computer to her grandchildren but had not inquired whether they still had it.

385. Given the importance of the representations made by Mr Beirne, this rather casual approach to contemporaneous records is, at least, surprising and justifies an available inference that there was no such computer or there was a computer but it contained no records of a conversation with Mr Beirne or, if it did contain such a record, it did not corroborate Ms Hungerford's version of events.

386. One of the representations Ms Hungerford asserted Mr Beirne had made was that Mr Beirne had told her that the current rent was "market rent". It was suggested to her that Mr Beirne had said that the rent was "ongoing rent" and she denied that.

387. She later agreed that what Mr Beirne had said may have been "going rate" instead of "market rate".

388. I have to say, I have found the submissions on behalf of TTC/Leda to be a little confusing. My own view is that, contrary to those submissions, there must be a similarity between "market rate" and "going rate", although "ongoing rate" is quite different.

389. Some evidence in an unchallenged affidavit suggested that BHPL was not paying either a market rate for the rent it paid to the Hyperdome under the Sublease.

390. As noted above (at [295]-[296]), Ms Hungerford opened shops at Manuka and Yarralumla in an endeavour to increase sales. In doing so, she both opened them under a different name and also changed the name of the Giving & Living store. Some evidence, to which I will refer below, suggested that the change of name was not a satisfactory marketing approach. When that was put to Ms Hungerford, she suggested that she had changed the name because she was obliged to under the agreement with Mr D'Amico and his company. She said that the agreement to purchase the business prevented her from opening another shop under the brand name "Giving & Living".

391. A copy of the written Sale Agreement, which was in evidence, did refer to change of the name of the business.

Should the purchaser [BHPL] wish to expand the business r [sic] into the areas from which the vendor is restrained in clause 12 she [sic] shall use the name in conjunction with the location such as Giving and Living Batemans Bay. Provided however that should she change the nature of the business she will not use the name Giving and Living in any location.

393. The areas of restraint of the vendor under clause 12 of the Sale Agreement where the vendor would not carry on business in a shop for the retail sale of home décor products including ceramic, crystal and kitchenwares was:

In ... the Australian Capital Territory together with the south eastern corner of New South Wales being an area from the east coast of New South Wales 100 km inland commencing from and including Nowra to the New South Wales/Victorian border.

394. This, as Ms Hungerford agreed, did not have the effect that she described and would have allowed her to open in Canberra any number of stores under the name "Giving & Living" and, indeed, the two she opened could have been called "Giving & Living Yarralumla" or "Giving & Living Manuka".

395. Ms Hungerford, however, then maintained that the prohibition from opening more than one store under that name was based on an unspecified oral agreement subsequently made with Mr D'Amico, but for what consideration and how it bound her she did not say. She could not recall where the agreement was made or whether it was made over the telephone or face to face. Her evidence was confusing because she first admitted knowledge of the clause to which I have just referred but later said that she did not realise that she did have such knowledge because of the alleged oral agreement.

396. It is difficult to see how the oral agreement could have been binding on her in the circumstances and its vagueness undermines the likelihood of its existence.

397. Challenges in the cross-examination of Ms Hungerford also related to the extent of her involvement with the preparation of these proceedings and the character and quality of her evidence.

398. As noted above (at [345]-[347]), Ms Hungerford was closely involved in preparation of BHPL's factual case and she had a close connection with the preparation of affidavit evidence. She had read various affidavits and was involved in the preparation of some of them. Her evidence to suggest that this did not influence her evidence or her recollection was unconvincing.

399. Despite agreeing that it would be normal to remember what she had learnt in preparing those affidavits, she denied that, if she heard an additional fact in the course of preparing someone else's affidavit, it would add to her understanding of the facts. She agreed, however, that she could not deny that her understanding had been supplemented in this way. Her initial unwillingness to concede that this was likely tended to suggest that she was more of an advocate for her cause than merely a witness of fact.

400. Another problem that this created was through her involvement in the preparation of the expert evidence. Each expert witness called by BHPL acknowledged speaking with Ms Hungerford in connection with the preparation of their reports and, indeed, two of the witnesses undertook site visits with her.

401. While, at one level, it is not surprising that the owner and director of BHPL would be consulted by experts as to the factual basis on which they were to provide their reports, the contact seemed to have extended beyond what was appropriate. Thus, Ms Hungerford was closely involved in the preparation of the expert accounting evidence report, especially by way of giving express instructions about its contents.

402. This led to instructions which seemed to amount to directions of the basis on which the reports were to be prepared rather than simply factual information which could be independently assessed by the experts as such.

403. Both of these matters were significant when evaluating the way in which Ms Hungerford gave her evidence. TTC/Leda submitted that she had tailored her evidence to fit with documents about matters she had not recollected.

404. An example given was not one that was critical to the case but was instructive. In her oral evidence, Ms Hungerford had said that, when paid parking was introduced, those parking vehicles had to pay from the moment they entered the car park. She also said that this had changed after about three weeks when the Hyperdome gave a free period of two or three hours before the vehicle owner had to pay for parking.

405. In her affidavit, however, she had deposed that, when paid parking was first introduced, it allowed the customer free parking for the first two hours free but later said that, after three weeks, the free period was extended so that it allowed the first three hours to be free.

406. The two matters were inconsistent. She agreed that, notwithstanding that she had a different recollection when giving evidence from what she swore to in her affidavit, she nevertheless did that by giving greater comfort to the documents than to her memory although, apparently, not resiling from her memory.

407. This did mean, however, that it was necessary to scrutinise her evidence very carefully because of the risk that her recollection was not accurate or was influenced by reading other documents, including the affidavits of other witnesses.

408. Unsurprisingly, because the events occurred more than 10 years before the time when Ms Hungerford was giving evidence, she agreed that there were many things of which she lacked a clear recollection. This is consistent with ordinary human experience.

409. Nevertheless, it is often the case that witnesses can remember the relative occurrence of events either through the sequence of events or the temporal relationship between them. Precise dates, times and, of course, exact words, are likely to be lost over time.

410. Ms Hungerford admitted that, after the discovery process in the proceedings, she was able to look at the discovered documents "to identify and reconstruct when something occurred". That was, she admitted, the process by which she built up her recollection not only of dates but sequences of matters, although adding that she also had emails from her own records as well.

411. There were many occasions when she was unable to recall precise dates and made some errors in the dates she gave from time-to-time.

412. Nevertheless, Ms Hungerford "doggedly" refused to concede that her extensive reference to documents and conferences with other witnesses would have led to a reconstruction by her of the events of which she gave evidence.

413. The example of this suggested problem put to her in cross-examination was, however, not a very clear cut one.

414. In her evidence, Ms Hungerford had referred to a possible purchaser of her business, Mr Mackennal. She said that she had not spoken to Mr Mackennal at the time of the events about which she had given evidence. She did say, however, that she had spoken to her broker at the time.

415. She said that she had, however, assisted Mr Mackennal in the course of preparing his affidavit. Unconvincingly, she denied that her recollection of events had been assisted and improved by speaking with him and preparing his affidavit and denied that there was any need to quarantine the information that Mr Mackennal had told her from her own recollection of events.

416. While she could not have had first-hand knowledge of the conversations between Mr Mackennal and Mr Cooper or the contents of any such conversations, and can only have known of them from reading his affidavit or speaking to him, it did not seem to me that this was a significant problem with her evidence.

417. It adds to the concern I have about her evidence, however, and I consider that her evidence must be scrutinised with care. Indeed, so far as her recollection of events and conversations is concerned, I would not be prepared to rely on her recollection alone unless confirmed by documents or other evidence.

418. In re-examination, Ms Hungerford was shown some letters that BHPL's lawyers had written on her instructions, seeking a new lease from the Hyperdome. Those documents were admitted in evidence and were said to support her case that she had sought a new lease, not merely the assignment of the lease to Giving & Living Pty Ltd. This, however, did not take the issue much further.

419. In relation to suggestions that decisions taken by Ms Hungerford herself were responsible for the demise of her business, she said that she had had a number of conversations with the managers of the Hyperdome from time-to-time but that the quality of the management she was providing to the Giving & Living business had never arisen. It was, however, not clear that the managers were required to be aware of the quality of her management of her business, were competent to comment on it, or had the knowledge or expertise to be able to assess it. There was no evidence about any of these matters.

420. Nevertheless, she did say that Mr Lord had told her that the store "always looked very - as good as it could and that the staff and service were excellent".

421. She also said that none of the Hyperdome management staff had ever talked to her about her business plan submitted with her tenancy application. Again, there was no evidence about any requirement or competence to do that on the part of any of the managers.

422. In particular, she said that the topic of her "quitting the lease" did not arise in any of the conversations with Hyperdome managers until 30 January 2008, when she did meet them to say that she was abandoning the Premises, as she did the next day. She said that the meeting was "quite an aggressive meeting", at which she was told that, if she did abandon the Premises, she would be sued, presumably for outstanding rent but that if she stayed she "could the [sic] rent free".

423. There were some questions also about the outgoings but, in the light of the issues that I have to decide, I do not need to summarise or refer to that evidence.

424. The first witness for the plaintiff was Mr Timothy Beirne. He was a property executive with qualifications in property economics and business.

425. Mr Beirne made two affidavits which were filed and from which certain paragraphs were read. A number of documents were annexed to his affidavits and these included the original Sublease, a letter from Giving & Living Pty Ltd of 9 April 2003 seeking rent relief, which was refused and offering BHPL a choice to pay out the lease or vacate, a letter from BHPL's lawyers seeking information about the tenancy, which was supplied, a copy of the various lease documents evidencing the transfer to BHPL, the variation and the tenancy application by BHPL, together with copies of internal Hyperdome newsletters from June 2003 referring to paid parking at the Hyperdome, and some other documents.

426. The paragraphs read in his second affidavit replied to a Report by Mr Martti Honkanen and denied any intent by him or the Hyperdome to divert pedestrian traffic away from the Coles Door to the Target Door. It also gave background to the introduction of paid parking and the installation of pipe rails, the latter being to ensure cars paid for parking and installed for no other purpose. He also denied that the improved amenities in the Courtyard were designed to divert foot traffic.

427. Since 1996, Mr Beirne had been interested in shopping centre management and had, since that time, been in employed in various shopping centres.

428. He was appointed Retail Manager to the Hyperdome in January 2002. He reported to the Centre Manager but undertook most of the day-to-day management issues dealing directly with tenants. In September 2002, he became the Centre Manager.

429. Mr Beirne emphasised the obligation he took seriously to maintain confidentiality both in respect of the business of the shopping centre and its owner but also the businesses of the tenants. He described his duties as Retail Manager and then as Centre Manager to protect and enhance the income stream of the owner, at the time, Leda. This involved also concern with the overall "health" of the Centre and the financial performance of the Centre including its tenants.

430. In the case of the Hyperdome, he noted that almost all of the income stream to the Hyperdome came from the payments made by tenants under their leasing arrangements. He had approximately 10 staff members to assist him in his tasks.

431. The Centre issued regular newsletters to tenants. These were prepared by Centre Management and distributed to each tenant, principally by the security officers. His attention was drawn to the Hyperdome's June 2003 newsletter to tenants which included information about the introduction of paid parking at the Centre. The government had proposed to introduce paid parking in the government car parks in the area and, as a result, the Hyperdome was investigating the introduction of paid parking for the multi-storey car park associated with the Hyperdome. His attention was also drawn to a further newsletter in November 2003 which also reported further on the issue of paid parking. The fee structure for such parking would be similar to that at the Woden Plaza, another shopping centre in south Canberra.

432. The newsletter contained other information. For example, the June 2003 edition, also mentioned that a new shop, Hot Dollar, was to open in the site formerly occupied by the Go-Lo shop, opposite the Giving & Living store.

433. Mr Beirne generally had little recollection of the events of 2003. He was, however, able to identify the standard procedure to be followed by him in respect of the relevant matters.

434. He outlined the standard procedure he followed when dealing with an inquiry for the assignment of a lease by a purchaser of a business that was an existing tenant of the Hyperdome. The procedure involved him meeting the proposed assignee and introducing himself. It involved giving the assignee a bundle of documents which included information to be completed and returned to him for consideration. He would then make a recommendation to the Retail Manager for Leda and, if the assignment was approved, the assignee would be involved. He did note that about nine out of 10 applications for assignments did not ultimately eventuate.

435. He stated that tenants of the Hyperdome had to report sales information to Centre Management every month on receipt, he reviewed the reports that were submitted. He treated them confidentially and never disclosed the information in those reports even with prospective purchasers of such businesses. The reports were required so the Hyperdome could monitor and assess the state of retail trading in the Centre. He assessed the reports on both a macro- and a micro-level. That is to say, it assisted him to assess the financial health of the Centre as a whole but also the financial health of each of the tenants. He was not asked by either counsel what he did when the financial health of a tenant was not good and he did not explain.

436. He was also given by his staff a schedule of those tenancies which were in arrears with rent and this assisted him in identifying those tenants which were defaulting or likely to default. He confirmed, again, that he would not disclose that information to other parties.

437. He was asked some questions about conversations that he might have had with prospective assignees of leases and purchasers of businesses within the Hyperdome. He was asked if he would ever disclose to such a person that the lease was in "a good location". He said that he would not use those words in relation to any location. In any event, he pointed out that this was very much dependent upon the nature of the business; one location may be good for one tenancy but not for another. He said that, if he had been asked such a question, he would tell the prospective assignee to make their own inquiries.

438. He accepted that the Hyperdome had various precincts such as the Food Court, the Fashion Court and so on. This might be relevant to the appropriate location for an individual tenancy.

439. He was also asked how he would respond if questioned about whether there was anything that a prospective assignee should know about the Centre. He said it was a difficult question to answer because he would not know what the questioner actually wanted to know. He said that, to the best of his recollection, he had never encountered that question. He would certainly not divulge information about the business of the assignor and, again, would suggest that the questioner should go and make inquiry of the business itself. His standard response was that the person should "go and find out".

440. This applied also to questions about whether the rent for premises of a business was at market rent or not and he would, as a standard approach, suggest that the inquirer make their own inquiries.

441. He recalled the Giving & Living business, but had no detailed recollection of it. He also had no independent recollection of his dealings with Ms Hungerford in July 2003. He had looked at the documents produced in these proceedings in an attempt to refresh his memory but, even looking at those documents, he had little recollection of the actual events. Thus, he said he did not remember Ms Hungerford asking about whether the Giving & Living shop was in a good location and he had no reason to suppose that he would not have applied the ordinary standard procedure he followed to such questions. He said he made no comment about the location of businesses to prospective assignees.

442. He was also asked about developments around the Hyperdome. He said that, again, it was not his practice to make comments about proposed developments and, in particular, about adjacent vacant blocks of land.

443. He was again asked whether he had described the Giving & Living business as "a good business" and said that he had been trained not to use the word "good". He repeated that the standard procedure was not to make comment to proposed assignees about anything to do with buying a business in the Hyperdome. He did recall, however, that the Coles Door to the Hyperdome had the second highest foot traffic of any door in the Hyperdome. He was also asked about the question Ms Hungerford said she had asked him, namely, "Is there anything I need to know about why Rick D'Amico is selling the Giving & Living business?". He had no recollection of that inquiry, but said that that was a matter of confidentiality between the landlord and tenant and not a matter that was to be disclosed. He would have suggested, if such a question had been asked by Ms Hungerford, that she should go and ask Mr D'Amico directly.

444. He was asked also about what he would say if he had been asked by a prospective purchaser whether the purchaser should know anything about the Hyperdome or its operation in regard to the business the purchase of which they were thinking of buying. He said that his response would, at first instance, be to ask what the questioner wanted to know. He was asked whether he might say, "No, there is nothing you need to know" and said that his standard procedure had trained him not to respond like that but to ask what the questioner wanted to know.

445. He pointed out that there were a number of things that were happening at the Hyperdome and to say that there was nothing that was needed to be known would be inappropriate. The Centre would develop over time and keep developing to ensure that it remained competitive.

446. He pointed out that there were approximately 200 retailers in the Hyperdome and that it would not be possible to make sensible comments to anyone about such matters. He also seemed to suggest that it would be unethical.

447. He was asked to comment on a suggestion that he said to Ms Hungerford, "I am very pleased you are taking the shop" and he pointed out that what was here involved was an assignment of a lease that was an existing commercial arrangement and that it did not matter to him if that lease was assigned or not. He said it was not a representation that he would have made in 2003.

448. He was also asked about whether he would have said to Ms Hungerford, "You will do well with the business [that Mr D'Amico was selling to her]" and again he pointed out that he had been trained not to comment on how retailers will perform or otherwise and that he had no reason to believe that he would have departed from what his training taught him to do and say in regard to any of these matters in 2003. He pointed out that there was no need to deviate from any of the procedures and he would have had to make a report of any such deviation as he was scrutinised by those to whom he had to report. He said that a comment like, "You are making a good business decision by buying the business", would fall into the same category.

449. He said that he was not aware that the conversation that he had with Ms Hungerford was part of any due diligence that she was undertaking.

450. He was asked about Ms Hungerford's suggestion that it was as a result of this conversation that she formed the view that the Hyperdome was not expected to alter during the term of any prospective lease. He said that that was not a representation that he would give either then or now and that he was unlikely to have said anything to give rise to that belief.

451. He was asked about marketing and promotion conducted by the Hyperdome and a suggestion that Ms Hungerford said he had told her that it was not expected to alter during the period that she would be a tenant. He said that he did not recall discussing that. There was a marketing team in place and, in any event, questions about marketing would have been referred by him to the marketing team.

452. Mr Beirne also gave some evidence about the paid parking which he said commenced on 2 March 2004, according to the documents he had seen, though he had no independent recollection.

453. He also had no independent recollection of Ms Hungerford requesting a new lease rather than an assignment of the Sublease. All he could say was that the Sublease was on foot and there was a request for an assignment and an extension of the term which, he noted, was, in fact, granted. He noted that the document that had been signed was, in fact, an assignment of lease.

454. He noted that the Sublease required a bank guarantee and personal guarantees to be provided by the sublessee. The present guarantors were Mr D'Amico and his wife.

455. He was shown a letter from Mr Shaw, Ms Hungerford's accountant. He had no recollection of receiving that letter but noted that it had been received, because standard practice, required a certified statement of assets and liabilities from an accountant for the prospective assignee. He identified his signature on the recommendation that he then made the Sublease be assigned as proposed.

456. Mr Beirne was also shown a document which set out the foot traffic for July 2005. It showed that at that time, the Coles Door had the highest foot traffic for that month in the Hyperdome.

457. Mr Beirne was cross-examined at some length. He agreed that he had left the employ of the Hyperdome in 2004. Since then, he had worked in Melbourne, Sydney and Brisbane.

458. He said that he was first asked in 2012 about the meeting he had had with Ms Hungerford; this was in preparation for the first affidavit he made in the proceedings. He had no recollection of the conversation with Ms Hungerford and he agreed that his recollection of the Hyperdome itself was a little bit hazy. He did not consider that his recollection of the events of 2003 were clearer in his mind in 2012 than when he was giving evidence. He was honest and made admissions against interest.

459. He said that he did not knowingly say anything incorrect in his affidavit. He recalled, in the witness box, discussing the foot traffic through the Coles Door but agreed that insofar as anything was said in his affidavit, that was the best of his memory at the time.

460. He was asked about the process for having a tenant approved as a prospective new tenant. He agreed that a tenancy application form would have to be completed and submitted. He would scrutinise the form and make a recommendation to the Retail Manager for Leda, who would make the final decision as to whether to accept the tenant or not. He alone made the recommendation without necessarily input from other members of his team. His recommendation was based on the information he had at the time and an assessment of the application, and he would provide any relevant information to the Retail Manager for consideration.

461. The assessment of the application was part of his job to protect the income stream of the owner, Leda, and that was one of the reasons why he required a prospective new tenant, such as BHPL, to provide financial and capability information together with an indication of the person's experience in business in order to assess the application. He also required a business plan to be submitted and this would all be part of the information on which he would base the recommendation to the Retail Manager. Ultimately, it was the job of the Retail Manager to accept or reject the application. He would, in making the recommendation, draw to the Retail Manager's attention any matter that he would consider relevant. Sometimes he would suggest that the Retail Manager should discuss the application with him.

462. In the case of Ms Hungerford's application, he did not note anything to suggest that there were any concerns about the application. The Minute that he sent to the Retail Manager was in evidence and he confirmed that what was said in the Minute was his belief at the time. He agreed that he noted in the Minute that there were no current issues with the tenancy, namely Mr D'Amico's existing tenancy. He did accept, however, that the tenant was liable for some arrears of rent from time-to-time.

463. His attention was drawn to a request in March 2003 that Mr D'Amico had made on behalf of Giving & Living Pty Ltd for rent relief. In the letter, Mr D'Amico indicated that the situation was quite significant and that, if rent relief was not forthcoming, he may have to leave the Premises. This situation had arisen, in part because of the move of the Go-Lo business from the Coles Mall to the Lifestyle Centre. As a result, Mr D'Amico stated that the foot traffic had significantly dropped. Mr Beirne agreed that it would be a significant matter if a tenant said that, without rent relief, it would have to vacate. A vacancy would affect the income stream of Leda and the environment of the Centre and there would be risks about being able to pursue the tenant for rent arrears. There were also potential implications for stores in the vicinity.

464. He was also taken to the reply to Mr D'Amico's request for rent relief which declined to provide that relief. It noted that, at the time, the store was three months in arrears, although Mr Beirne seemed to think that it was only two months in arrears at the time.

465. The reply also indicated that Leda would consider an early surrender of the tenancy and agreed that such a surrender would end any obligation for payment of rent.

466. He agreed that the Hyperdome would have considered coming to a mutually agreeable solution with Mr D'Amico, but he had not received any further requests from him. It was suggested to him that that was the same position when Ms Hungerford approached him and he confirmed that there had still been a possibility that Mr D'Amico would seek to surrender the Sublease early and leave the premises.

467. He agreed, too, that there were issues with the Giving & Living tenancy at the time when Ms Hungerford approached him because there were still rent arrears. He was unable to be precise, but it appeared there were either two or three months rent in arrears at that time. He had no recollection that Mr D'Amico brought the rent up to date and agreed that he could not have done so because there were still arrears at the time BHPL took over the premises.

468. As a result, the Hyperdome had an incentive to agree to the assignment to BHPL and Mr Beirne agreed that this was so.

469. He also acknowledged that the rent payable for the Giving & Living store was in excess of market rent and that the assignment meant that he would be ensuring that above market rent was being paid to the Hyperdome for the balance of the lease and, indeed, for the two year extension; he agreed it was "a pretty good deal" for the Hyperdome. This was, in part, because if he had offered a fresh lease to Ms Hungerford, such a lease would have to be at market rent which was, of course, a lower rate than the current lease required to be paid and which would, of course, continue to be required under the assignment of the lease. These were frank admissions that Mr Beirne made, strengthening my view of his honesty as a witness.

470. Mr Beirne agreed that a good indication about the quality of the location of a store in a shopping centre like the Hyperdome would be the number of people passing by, the foot traffic. He agreed that, while it was by no means the only indication of whether the store was at an appropriate location, it was certainly an important one. He agreed that it was an indicator about which he would expect any prospective tenant to show concern or interest. He agreed that it was particularly important with shopping malls, compared with shops in the street, because shopping malls are an enclosed space and there are only a certain number of people who go in, so where they walk is particularly important, because that is the only source of people for passing traffic necessary for the health of many stores in the Centre.

471. He agreed that he had a recollection of telling Ms Hungerford that the Coles Door had the second highest foot traffic in the Hyperdome. He agreed, after some prevarication, that this meant that he was, in effect, telling Ms Hungerford that the store was in "a good location". He agreed that this was something he had volunteered despite, according to his training and experience, he should be trying not to make representations or assurances about the worth of the location in the Hyperdome.

472. He agreed, however, that, by saying this, he had "certainly gone a very long way" towards telling Ms Hungerford that, "[i]t probably [was] a good location". He agreed that, on reflection, and having regard to his training experience, he probably should not have said that. He thought that he should have qualified that by saying something like, "But that might change in the future because we are doing a few things outside that might affect it".

473. He did know, at the time, that the Hyperdome was planning to undertake some developments and that these might affect the foot traffic count at the Coles Door. That is, he knew that, quite apart from paid parking, which would affect the whole of the Hyperdome, there were works involving the erection of barriers of different kinds in order to put a ring around the paid parking locations, although he recollected that there was pedestrian access through the barriers. He knew that, in order to install the relevant equipment there would have to be some temporary barriers erected while the building works were being undertaken and he also knew that there were pipe rails and some kerbing and guttering that would discourage cars from driving wherever they chose to in the areas subject to paid parking. He was aware that it was going to cost a lot of money to undertake the necessary building works for the introduction of paid parking, and that it was not just the installation of boom gates, but involved an extensive allowance for putting up railings and bollards.

474. He was aware that these works had the potential not only to impede cars from moving through those areas but the potential to impede pedestrians from moving wherever the metal railings were going to be erected. He agreed that it would have been a fair thing to do to tell Ms Hungerford of the work that might affect her and agreed that it was not something that she could find out from other sources.

475. He also knew that there were other plans to upgrade, in particular, the area between the Target Mall and the Lifestyle Centre, the Courtyard. He was aware, in particular, of the work to be done there, namely the erection of some toilets, and some windbreaks and an awning. This would, he knew, integrate the main part of the Hyperdome with the Lifestyle Centre. He was aware that there was already an extension that had brought the Hyperdome physically into better contact with the Lifestyle Centre, but there was still a gap as at 2003 and he was aware that the Hyperdome had a strategy to make the gap more attractive by upgrading its amenity. He agreed that this would make it attractive for people who were in the Lifestyle Centre to move into the main part of the Hyperdome and vice versa. They would do so through the Target Door.

476. He also agreed that there were upgrades to make the Hyperdome more accessible through the Lifestyle Centre. He was aware that there was a substantial government office building, the Centrelink building, on the other side of Athllon Drive from the Lifestyle Centre, where there were a substantial number of office workers. He agreed that it would be desirable to encourage those people to visit the Hyperdome, although he said that they were already doing that.

477. He agreed that he wanted to get as many people walking into the Hyperdome as it was reasonable to accommodate and he agreed that Leda wanted to make the Lifestyle Centre an attractive entry from Athllon Drive. He agreed that Leda wanted to encourage people who had not been used to shopping at the Hyperdome to come to the Hyperdome so as to attract not merely existing customers but potentially new customers. He agreed that it was desirable for them to spend as much time as they reasonably could in the building and that Leda wanted to encourage that.

478. He knew that people entering the Coles Door were not just people who had parked in the car park outside that entry, but that they were coming from further away, and he was aware that some of them had identification tags around their neck. He knew that some people coming into the Hyperdome worked at offices on the other side of Athllon Drive.

479. He was also accepted that, in the middle of 2003, pedestrian traffic lights made it easier for pedestrians to cross Athllon Drive. In the middle of 2003 the only lights relevantly across Athllon Drive were at the corner of Reed Street North. The pedestrian lights outside the Lifestyle Centre were in later installation.

480. He agreed that he knew that, by making the Lifestyle Centre entry a more attractive place for people to enter the Hyperdome, it might have the effect of encouraging the office workers in the Centrelink building to use that entry rather than, for example, a "closed door" such as the Coles Door. He agreed that, on reflection, he should have told this to Ms Hungerford. He was aware, for example, that, at the time, she lived on the south coast.

481. Mr Beirne was also asked questions about turnover rent. He explained that when a tenant had earned in excess of a particular amount set in the lease document, the tenant would pay an additional amount of rent to Leda, the "turnover rent".

482. Mr Beirne indicated that he would set the turnover rent after negotiations with the tenant.

483. In re-examination, Mr Beirne said that he could not recall what Ms Hungerford had asked him. In particular, he could not recall whether she had asked him about the strategy or plans in relation to foot traffic but he did say that if she had asked him he would have told her.

484. He agreed that Mr D'Amico and his wife were guarantors of the Sublease and that this would be a means of using leverage against the tenant if required. That gave Leda comfort because of the guarantee. This made it, for example, a different circumstance to a tenant that had given no guarantee or a more limited guarantee than the one required under the Sublease. Nevertheless, he said that Leda was "commercial" in its dealings; that is to say, it would be prepared to negotiate an arrangement such as the surrender of a lease.

485. He recalled that there was, from time-to-time, arrangements which might have included rent forgiveness for a period of six months or similar.

486. He also agreed that the pipe railings that were installed in connection with the paid parking allowed for easier pedestrian access and simplified relocation, although he did not particularise where that would be.

487. He also said that he did not recall seeing ID cards on customers coming across from Athllon Drive.

Duane Robert Lord, Robert Frederick Cooper and Shane Henry McCann

488. Because of my earlier findings, it is not necessary for me to summaries the evidence given by employees of TTC/Leda Messrs Lord, Cooper or McCann, in particular about representations that they are alleged to have made.

489. I have rejected the allegation concerning the representations they were alleged to have made and the evidence is not relevant to the other issues that I have to decide in this case.

490. The General Manager of Mirimax Pty Ltd, trading as TCS Instruments, Harold Kolodziej gave evidence. The business of TCS Instruments was, amongst other things, to provide people counting services to a whole range of businesses. It provided such services to the Hyperdome.

491. In the event, the issues in the proceedings mean that I do not have to make particular findings about the question of people counting. Accordingly, it is not necessary to recount Mr Kolodziej's evidence in detail.

492. In summary, the counting mechanism used by TCS Instruments operates through the installation of sensors across a door space. On one side is a transmitter that transmits a light beam constantly and on the other side a sensor receiving the light beam. When a person passes through the door space, the light beam is broken and that is counted as a person.

493. Of course, where two people walk through the door space precisely side-by-side, the system will not count both individuals. The evidence was that, where the doorways have a low volume of person traffic, less than 100 people per hour, the error rate is extremely small and the volume not significant enough to affect the overall system. With busier doors, the company uses other technology, usually a visual thermal device overhead, which can detect every individual and has the capability of tracking multiple individuals entering concurrently.

494. In auditing the system at the Hyperdome, it was found that the error rate was less than 15 per cent and that was sufficient for the purposes of the Hyperdome.

495. Mr Kolodziej said that an audit was conducted by a technician regularly and who would check the system in 15 minute counting modes. The technician would use a mechanical clicker to identify each individual going in and out, recording the start time and the finish time of his testing so as to compare with the sensor system.

496. Mr Kolodziej identified statistical reports of door counts for the Hyperdome from July 2005 to October 2008. They were admitted into evidence. They were clearly more accurate or relevant than the surveys conducted by Ms Hungerford or on her behalf.

497. He was also able to identify one-off events that cause sensors to provide inaccurate measurement.

498. He indicated that each time the beam is broken, the count is only one half of a person because for every entry, there will be an exit and, accordingly, accuracy requires that to be included in the process for accurately calculating entries to the Hyperdome.

499. TCS Instruments had provided people counting services and audited those services to the Hyperdome since 2001.

500. In cross-examination, Mr Kolodziej indicated that there could potentially be periods where an audit would not be conducted for a period of 24 months.

501. He was also asked about some extraordinary counts that the staff of the Hyperdome had identified, but he was unable to make a comment as he had not been asked to investigate the records for that purpose and did not recall the issues.

502. Documents admitted into evidence showed that there were issues in relation to the people counting from about May to October 2005. For example, in the Weekly Summary Report of 27 May 2005, the relevant software had been disabled; in the Weekly Summary Report of 20 May 2005, it was noted that the Anketell Street entry had been under-reporting, which was also noted in the Weekly Summary Report of 7 June 2005 when the audit indicated the under-report maybe as large as 29 per cent.

503. A further problem was noted in the Weekly Summary Report of 1 July 2005 when over two days a count of 2927 persons was recorded for a period when the Centre was closed. A similar problem was noted in the Weekly Summary Report of 12 August 2005 and 14 October 2005.

504. While such problems would raise concerns about the accuracy of the reports of the people counting systems, it was not at all clear that it would affect the relativity of the size of foot traffic through the various entries to the Hyperdome.

505. In any event, the Weekly Summary Report of 14 October 2005 did report that the problem had resolved. After referring to irregularities in the system, including the odd counts at 8:00pm and 9:00pm on Saturday and Sunday, when the Hyperdome was closed, it recorded:

The problem was investigated by the system administrators but unfortunately they could not pin point the problem as the system had not been regularly audited for over 24 months. Therefore they could not explain the errors. They did however support my suspicions that the system has been over counting consistently at unusual periods and the only conclusion that they could provide for this was that the counts were being manually manipulated. The system has now been locked and manual manipulations are only possible via the use of a password which only Bright Lights have access to. It should be noted that the errors ceased once the traffic system was audited.

506. The reports of the foot traffic counts for all entries to the Hyperdome for the period from July 2005 to January 2008 were in evidence. I am satisfied from this evidence that for the period from July 2005 to October 2005 the absolute numbers are likely to be in error but that the relativities between the various entries to the Hyperdome are, on the balance of probabilities, correct because of the correlation with later counts reported.

507. I am also satisfied that for the period November 2005 to January 2008 both the absolute numbers and the relativities are correct.

508. These showed that from July 2005 to April 2007 and for August 2007, the Coles Door showed the highest foot traffic of any of the 16 entrances for which counting was undertaken, including the Target Door.

509. I also note that, for the months of May 2007 to July 2007 and for September 2007 to January 2008, the Coles Door showed the second highest foot traffic of the 16 entrances to the Hyperdome.

510. This evidence is in stark contrast to the anecdotal evidence of Ms Hungerford about the falling off of foot traffic through the Coles Door. In this regard, I note that the counting through the Coles Door does not include the foot traffic through the Coles Travelator for which there was a separate count.

511. The expert evidence was presented as concurrent evidence. This is a more modern method of adducing expert evidence which results in the Court being better and more helpfully informed about their evidence. See Strong Wise Ltd v Esso Australia Resources Pty Ltd [2010] FCA 240; 185 FCR 149 at 175; [93]- [96]

512. The method has been helpfully described by the Administrative Appeals Tribunal in Re The International Fund for Animal Welfare (Australia) Pty Ltd and the Minister for Environment and Heritage [2005] AATA 1210 at [43]- [45], as follows:

1. The means by which most of the evidence was taken was the process now frequently used in the Tribunal which the Tribunal has called 'concurrent evidence'. All of the witnesses prepared reports or made affidavits. The reports and affidavits were admitted without objection except as to relevance. Prior to giving evidence witnesses whose evidence related to similar areas of expert knowledge conferred with one another. This process involved up to four witnesses at a time. Legal representatives were not present. Sometimes the meeting was wholly or partly by telephone including international telephone calls. Witnesses who gave evidence on more than one area of expert knowledge were involved in more than one meeting. The witnesses who took part in this process included the chief executive officers and other employees of the zoos. The chief executive officers were also cross examined conventionally on non expert issues. During their meetings the experts were asked to isolate the matters on which they reached agreement and the matters on which they continued to disagree. They were asked to reduce this to writing. So far as the Tribunal is aware this process took place without any intervention from the legal representatives except, perhaps, in the provision of typing facilities.
2. Each group of witnesses took an oath or affirmation to be truthful. They sat alongside one another. Not all witnesses were in the hearing room. Some were overseas. They joined the concurrent evidence session by video link. In one case ... the evidence was received by telephone. [two witnesses] gave evidence concurrently from the United Kingdom by video link. At the time they were in separate parts of the country.
3. At the beginning of each session the agreed statements were received in evidence. The witnesses were then asked, in turn, to state succinctly what they wished to stress as the essential parts of their evidence. Some of the witnesses accepted this opportunity. Others did not. They were then asked, in turn, whether they wished to ask any of the other witnesses questions or to comment on what the other witnesses had said. Counsel for the parties were then invited to ask questions of any of the witnesses. During all this time members of the Tribunal asked questions when they thought it was appropriate.

513. While not precisely in this form, the concurrent evidence was generally given in this way. The pre-hearing "conclave" of the witnesses in each area or discipline was most useful and helped identify the areas of agreement and disagreement and the reasons for the latter.

514. This was a useful way of proceeding and it did highlight the differences between the experts and the reasons for those differences in a very helpful way.

515. Concurrent evidence was given first by the forensic accountants for the respective parties, Peter James Haley for BHPL and Gregory Meredith for TTC/Leda.

516. Mr Haley was retained by BHPL and provided an expert report. Mr Haley was a Chartered Accountant. He held the Degree of Bachelor of Commerce and a Graduate Certificate in Applied Finance and Investments. He was a Member of the Institute of Chartered Accountants in Australia and a Member of the Financial Services Institute of Australia.

517. He was a Partner, Forensic Accounting and Litigation Support, of Vincents Chartered Accountants.

518. He had had over 27 years experience in business analysis and the accountancy profession, most recently 11 years specialising in forensic accounting. He had prepared and submitted forensic accounting reports as expert evidence and had appeared to give evidence in various courts and tribunals in Queensland as well as in the Supreme Court of Queensland, the Supreme Court of New South Wales, the Federal Magistrates Court of Australia (since 12 April 2013, renamed the Federal Circuit of Australia), and the Family Court of Australia.

519. He had prepared assessments of damages in relation to various commercial disputes including trade practice disputes, business interruption claims, retail shop lease disputes, partnership disputes, shareholder disputes, defamation actions and professional negligence claims, as well as in family law matters and economic loss reports in person injuries matters.

520. Mr Haley made two affidavits, both effectively annexing Reports. They were filed and read. In both, Mr Haley acknowledged that he was bound by the Expert Witness Code of Conduct. He also attached a statement of his qualifications.

521. In his first Report, Mr Haley set out the background of the Giving & Living business and then calculated the loss and damage he assessed attributable to the alleged misleading or deceptive conduct. Given the substantial progress made in the

pre-evidence discussions between him and Mr Meredith, the "conclave" as it became known, it is not necessary to set out his calculations or reasons in detail.

522. Mr Haley assessed the economic loss suffered by BHPL as a result of the claimed conduct by TTC in the sum of $4 613 481. This was broken down as follows:

523. His second affidavit was prepared in response to Mr Meredith's affidavit which caused him to provide updated calculations. Mr Haley also responded to various matters raised in Mr Meredith's affidavit. Again, these were dealt with in the conclave and in the concurrent evidence hearing.

524. Mr Haley's supplementary report based on further information and assumptions re-calculated the total losses in the sum of $5 296 052, made up as follows:

Hungerford's liability to pay remuneration $1 458 738

Loss of profits and increase in value of good will $1 458 326

525. Mr Meredith was also a Chartered Accountant and was a Partner of the firm, Ferrier Hodgson, Chartered Accountants. He held the Degree of Bachelor of Economics and was a Fellow of the Institute of Chartered Accountants. He was a Member of the Insolvency Practitioners Association of Australia, the Financial Services Institute of Australia, the Australian Institute of Company Directors, and special interests groups in forensic accounting and business valuation of the Institute of Chartered Accountants of Australia.

526. He had experience as an expert witness in a wide variety of cases and in various litigation support assignments. He had prepared expert reports for a large number of legal actions including business, shares and option valuations, loss and damage assessments, investigation of financial transactions and solvency reports. He had acted as a court appointed referee.

527. Mr Meredith made one affidavit which was filed and read; to it was exhibited his Report. He also acknowledged that he was bound by the Expert Witness Code of Conduct.

528. Mr Meredith's Report was a comprehensive document which attached the documents on which he relied as well as detailed schedules with his calculations. It attached a curriculum vitae, the letter of instructions, and a list of the documents with which he was provided.

529. Mr Meredith assessed the total loss and damage sustained by BHPL on two bases. Initially, in respect of the pre-lease representations alleged, he quantified the loss within a range of $64 399 to $435 684. In respect of what were described as the trading representations, namely those made after BHPL had entered into the Sublease, he assessed those within a range of $46 937 to $516 752. These two would be added together to provide the total loss, if both representations led to liability.

530. If the losses from the trading representations alone were considered, the losses would be reduced by lease exit costs and he quantified those within the range of $65 817 to $535 632.

531. As with Mr Haley, it is not necessary to summarise his Report as the relevant issues were dealt with in the concurrent evidence hearing.

532. Mr Haley and Mr Meredith then conferred "in conclave" and produced a document which tabulated the positions of the two accountants and identified the differences between them.

533. It is appropriate to approach the evidence in this way.

534. The first area was the initial capital outlay. Mr Haley identified that the initial capital outlays were constituted by $228 538 being goodwill and $52 913 separately as being the cost of plant and equipment. Both figures were recorded in the financial statements of BHPL for the financial year 2004. They exceeded the amount paid for the business and there was no explanation as to why there was such a difference of $46 451 from the actual purchase price which would seem to me to be the actual capital outlay of BHPL. Mr Haley did not apply a separate figure for the purchase of stock as he dealt with that as part of the trading losses.

535. Mr Meredith relied on $235 000 as the actual purchase price paid, assuming that it was reflective of both the value of goodwill and of the plant and equipment. He then added the amount paid in relation to stock, namely $123 895, in addition to that purchase price.

536. Thus, Mr Haley assessed the capital outlays in the sum of $281 451 while Mr Meredith assessed them in the sum of $358 895.

537. The fundamental difference between the approach taken by Mr Meredith and by Mr Haley for the other items of damage was that Mr Haley consolidated the three stores ultimately owned by BHPL, namely the Giving & Living store, the Manuka store and the Yarralumla store. His view was that, but for the original purchase, BHPL would not have purchased the other two stores and, accordingly, any losses attributable to the inducement of BHPL by the misrepresentations or misleading or deceptive conduct to enter into the purchase of the Giving & Living store was compensable.

538. Mr Meredith considered that the purchase of the Manuka and Yarralumla stores did not flow from any misrepresentations and the decisions amounted to a separate commercial decision not flowing directly or causatively from the initial decision. He pointed out that, if one store was struggling, it was a questionable decision to invest in another two stores.

539. So far as the borrowing costs were concerned, there was agreement on the quantum of those costs which, in respect of the Giving & Living store, totalled $66 449 up to the end of the financial year 2008. These were the costs that Mr Meredith assessed as damages flowing from the purchase of the business following the misrepresentations.

540. Mr Haley, however, assessed the borrowing costs in the sum of $139 407. This amount included the borrowing costs referable to the Manuka and Yarralumla stores and also continued the costs through to financial year 2011.

541. Mr Meredith noted that the Giving & Living store ceased trading on 31 January 2008. He considered that it was not appropriate to include costs beyond this date as they would relate to the other stores.

542. If, contrary to Mr Meredith's opinion, the borrowing costs had to be extended to the end of the financial year 2011, he indicated that the costs referable to the Giving & Living store were about two thirds of the borrowing costs for the three stores. This would add $33 749 for the additional three years bringing the total to $100 198.

543. As to trading losses, Mr Haley assessed those as in the sum of $701 531, whereas Mr Meredith assessed them as in the sum of $549 651.

544. The principal difference was that Mr Haley assessed the trading losses on a consolidated basis, that is inclusive of the three stores, Giving & Living, Manuka and Yarralumla. Mr Meredith assessed the trading losses only as they pertained to the Giving & Living store.

545. It appeared to be common ground that those figures were adjusted to add back

non-cash expenditure (depreciation) but also borrowing costs and interest which would have been taken into account under other heads of claim.

546. Again, Mr Haley continued the losses through to the financial year 2012. It is not entirely clear why that was done since the stores had closed some years before; the Giving & Living store closed on 31 January 2008, the Manuka store closed in December 2008 and the Yarralumla store was sold in October 2009. It was not clear to me the basis on which trading losses would extend, on any basis, beyond the end of the financial year 2010.

547. The next head of damage was the interest on funds advanced by Ms Hungerford to BHPL. Mr Meredith did not concede that this was an appropriate head of damage. He was unable to find any documentation or other indication in the records of BHPL that showed the terms of any moneys advanced by Ms Hungerford and, prima facie, accepted that any loans, which had, of course, to be repaid, would be interest free.

548. Mr Haley calculated interest on those funds advanced to financial year 2011 in the sum of $907 531. He had reduced this from his original assessment because he was subsequently provided with a breakup of the non-current liabilities and agreed with Mr Meredith's calculation of the interest payable on the portion of the liability that related to advances from Ms Hungerford.

549. This was because, principally, the non-current borrowings related to a bank overdraft account as well as to the advances from Ms Hungerford. The interest on the bank overdraft account, however, had already been accounted for in the profit and loss account and, accordingly, the inclusion of that would overstate the payable interest. Mr Haley appeared to accept that.

550. Mr Meredith's concern was that there was no record in the accounts of BHPL showing any accrual of such interest and none was in fact paid. There was no note to recognise that liability in the accounts.

551. Mr Haley indicated that his instructions were that Ms Hungerford had always intended to recover interest on the money paid. She had not included any indication of that in the accounts because the company had losses anyway and the inclusion would only increase the losses in BHPL and result in a taxable income to Ms Hungerford personally when she was not receiving the funds. In this sense, Mr Haley suggested that one had to look at a "group" as a whole which involved Ms Hungerford, BHPL and her superannuation trust. It was, however, contended by TTC/Leda that this was an inappropriate characterisation because BHPL was incorporated for the specific purpose of protecting assets and quarantining losses; there was no "group" to which TTC or Leda was liable.

552. Mr Meredith, however, expressed the opinion that it was, in any event, a shareholder's loan made interest free. There was no record of interest being charged on the loan, there were no notes to the accounts nor was there any reflection in the financial statements of any liability because it was neither charged nor accrued. Mr Haley was simply instructed that there was such an intention of Ms Hungerford. There was, however, no documentation or any other indication in the records of the company on which he relied; he simply relied on the instructions he was given. There was no evidence to substantiate the claim.

553. Mr Haley pointed out that, in the case of a company such as this, with only one shareholder and director, there were no obligation to prepare accounts. The only requirement for accounts to be prepared would be for the purposes of providing a tax return. Since the company was in a loss position, the increased loss through the interest accruing but not paid would not affect the tax position.

554. Mr Meredith considered that accounts should be prepared in accordance with accounting standards and, if there was a loan which was interest bearing, the interest should at least have been accrued or there should have been a note to the accounts to that effect. He considered that the accounts should reflect the actuality of the situation of the company and, on the records of the company, the loan, which was reflected in the company's accounts, was otherwise interest free. Further, if Ms Hungerford, made her tax returns on a cash basis, it would be irrelevant to her.

555. The next head of damage was remuneration payable to Ms Hungerford by BHPL. There were two aspects of this. The first was that she claimed director's fees and associated superannuation and, secondly, from the date of termination of Ms Montagner's employment as manager, manager's fees and superannuation on them.

556. Mr Meredith did not concede that this was an appropriate head of damage. Again, he said that there was no documentation or record in the company's records of any agreement to pay director's fees and there was no agreement to remunerate Ms Hungerford for the managerial role.

557. He expressed the further opinion that the fees were being charged for the three businesses and this was not a recoverable damage because they were being charged after the closure of the Giving & Living store.

558. Mr Haley assessed the total remuneration for nine years in the sum of $1 458 738. This comprised directors fees of $72 000 per annum together with superannuation at a rate he was instructed to apply of $27 600 per annum, manager's wages of $60 000 per annum together with superannuation of those wages at the standard community guarantee rate of nine per cent, less a small amount of remuneration of $26 262 that Ms Hungerford had received.

559. Mr Meredith expressed the opinion that the remuneration, if payable, should only be paid for the period of the operation of the Giving & Living store and, in the case of the manager's fees, only from the departure of Ms Montagner.

560. He expressed no view on the amount of the director's fees, but considered that, if she was entitled to any fees, the superannuation should be at the guarantee rate of nine per cent per annum.

561. So far as the superannuation was concerned, Mr Meredith expressed the opinion that it should be at the guarantee rate of nine per cent, thus assessed in the sum of $6480 per annum on the fees of $72 000.

562. Mr Haley, however, used a figure $27 600 per annum which appeared to come from a document prepared by Ms Hungerford of cash flow which showed her intention to receive that amount in superannuation, a rate of 38 per cent.

563. The amount of manager's fees also was different. Mr Haley used the amount of

$60 000, which was the amount Ms Hungerford instructed him that BHPL had been paying its previous manager, though this was not her evidence: see above (at [331]). Mr Meredith based his assessment, namely $30 565.28, on an average of the award wage for the relevant period. Both applied the community guarantee rate of superannuation at nine per cent per annum.

564. The next head of damages was loss of profits. This arose from the submission that, had BHPL not invested in the Giving & Living business, it would have invested in an alternative business which would have produced the expectations she had of a 10 per cent increase in sales each year and an ability to sell at the end of two or three years for a substantial profit.

565. Mr Haley relied on Ms Hungerford's predictions and calculated an amount of $474 768 for lost profits, $36 023 for loss of goodwill, and $947 535 for interest on the lost profits, making a total of $1 458 326.

566. Mr Meredith considered that, as no alternative business had been identified which would have performed in line with Ms Hungerford's expectations, it was not appropriate to include this head of loss. Mr Haley did not identify any such alternative business but said that he was instructed to assume that such a business could have been acquired.

567. In addition to pointing out that no alternative business had been identified, Mr Meredith made two further points.

568. The first was that the acquisition of such an alternative business would have required a similar capital outlay, which would have meant BHPL would have still incurred borrowing costs and interest, thus, an expense for the alternative business. Further, an award for the lost capital would amount to double counting. He also considered that the assumptions of the profits that would be recoverable from the Giving & Living store and the increase in goodwill were not sustainable. The premise of an alternative business that could provide such a return was unsubstantiated as there was no information available to suggest that the Giving & Living store could yield the growth assumed by Ms Hungerford in her projections provided to Mr Beirne. The actual growth in sales for the business between the financial year 2001 and the financial year 2002 was only four per cent. Ms Hungerford, however, had projected a growth of 28 per cent. There was no material from which that significant increase could be justified.

569. Mr Meredith explained his methodology in some detail. He assessed the

pre-purchase information and formed the view that the purchase price was a fair purchase price and that the real value of the business based on that information was, in fact, the purchase price. Thus, the purchase of the business, based on pre-purchase information would show no loss.

570. That, of course, does not address the complaint by BHPL, not that the business was worth less than what was paid for it, but rather that she would not have purchased the business at all had the misrepresentations not been made, because of future risks.

571. Mr Meredith accepted that the business after purchase traded at a loss. He recognised that it might take some time for Ms Hungerford to work out that the business was not trading well and so he allowed trading losses incurred in the first six months in the sum of $57 959.

572. If, however, the real measure of the future maintainable earnings of the business reflected post-purchase could reasonably be reflected by the trading of the business after purchase, then using a capitalisation of future maintainable earnings method to the value of the business, while the business would be worth zero, the real value would probably be the residual value of the stock at the purchase price at the time of purchase resulting in a loss of $354 906.

573. Representations made after the purchase of the business would be relevant if the Court found that it was reasonable for BHPL to stop trading, for example, at the end of June 2005. While it would have ongoing lease obligations, he noted that, in fact, when BHPL abandoned the business, TTC was able to re-lease the premises within four months. That, of course, assumes not only the capacity to re-lease the premises but also that the rent would be at the same level or greater for, if not, BHPL may remain liable for any reduced rent recoverable by TTC from a new tenant.

574. Accordingly, Mr Meredith identified the trading losses to 30 June 2005 in the sum of $263 492 including the pre-lease trading losses to which he added the loss of stock which resulted in a total loss of $349 619. It would be necessary, he considered, also to identify the lease exit costs.

575. He calculated the total loss, were BHPL to have left the premises on 30 June 2005, would be $642 578 and, at 31 January 2008, approximately $875 765.

576. Mr Meredith emphasised that the owner of a business such as BHPL, where acting reasonably, would cease trading when it was clear that the business was unprofitable.

577. Mr Haley was cross-examined at some length. The thrust of the cross-examination was to show that his Report was substantially influenced by instructions he was given, even though, in some cases, those instructions were different from his expressed opinion. The inference to be drawn from this, it was submitted, was that the Report was not a truly independent expert report but was constrained by instructions and directions that could either not be independently verified or limited the expertise applied.

578. To this end, a series of email exchanges between him and BHPL's solicitors was admitted into evidence which showed a close and directive involvement in the preparation of his Report by Ms Hungerford and her lawyers.

579. For example, the loss occasioned because BHPL had not been able to earn profits from an investment in an alternative business was considered at some length. Mr Haley had some experience of calculating a lost profit scenario when there is an opportunity lost such as suggested here, and he said that his experience was that such losses are calculated where there is strong evidence that a claimant had considered purchasing another business but that he had not seen any such evidence in this case. He confirmed that there were no other potential business reports that he had received. His conclusion was that, "Therefore, the current claim for losses on those items is not applicable". He agreed, rather reluctantly, that his experience was that if there is no evidence of an alternative business there can be no claim for loss of opportunity or loss of alternative profits.

580. He was then shown an email from BHPL's solicitors where he was instructed, "But for the misrepresentations the company would have made the profits and increases in goodwill as projected in its cash flow statement". Mr Haley said he "[t]ook that as [his] instructions". He said that he felt bound to accept those instructions in preparing his expert report.

581. He agreed that, if there was no alternative business to be purchased by BHPL, there was no loss of opportunity claim.

582. He acknowledged, also, that BHPL's solicitors had instructed him to adopt a cash flow statement prepared by Ms Hungerford "[a]s the profit number to adopt in the opportunity loss calculation".

583. Accordingly, he included such losses in his Report on the basis of investments in another business that would have returned profits to the extent of those calculated by Ms Hungerford in her original business plan.

584. Similarly, in a further email, Mr Haley discussed the appropriate rate for the interest on the calculated loss of profit of the business.

What is the assumed increase in profitability of the notional business we would have invested in? This increase in profitability flows through to an increase in Goodwill value - greater profits = greater goodwill. I can adopt the lease default interest rate if instructed but I just don't think there is any justification for doing so. What the lease says is the penalty interest rate bears no relationship to how the business would have traded. As it's an arbitrary assumed rate of increase it is normal to adopt a round, consistent percentage, in my experience.

586. In response to that, BHPL's solicitors instructed:

I appreciate what you say, but as it is an arbitrary rate of increase anyway, I think it is better to take a rate that at least has some connection with the case, so we will go with the least default interest rate.

587. Again, with some reluctance, Mr Haley agreed that his opinion at the time was that there was no justification for the lease default interest rate as being applied in these circumstances. He agreed, in evidence, that "the penalty rate under the lease does not necessarily reflect what would have been earned".

588. His final view was expressed in the following exchange of evidence:

... as an expert giving evidence to his Honour today you would stand by your proposition, as you say in your email truthfully in 2012, that you don't believe there is any justification for adopting that interest rate. As an expert that is your evidence, isn't it? --- Although I took on board Mr Giles' comments that there is a rate that has some connection with the case so that's a justification, yes.

But as an accounting expert there was no justification then and there is no justification now, is there? --- Well it was still a rate that was within the range of the possibilities, yes.

But it didn't have any connection you said at the time, did it? --- I didn't, before I had Mr Giles' further comment that he considered it didn't - it had a connection with the case.

So it is fair to say that you incorporated that rate on Mr Giles' instructions rather than on your opinion as an expert accountant? --- It was his instruction but yes, I considered it a rate but after taking on board what he was saying that it had a connection to the case, yes.

Don't you say down the bottom, 'Am happy to adopt the lease default interest rate if so instructed for this'? --- Yes.

And that was seeking instructions as to whether or not to incorporate that interest rate? --- It was, yes.

And Mr Giles provided you with those instructions? --- He did.

And the basis for you utilising that lease default interest rate was solely Mr Giles' instructions, wasn't it? --- It was.

589. In further examination, Mr Haley's attention was drawn to the rate of interest he had used to calculate the interest payable by BHPL to Ms Hungerford on the loans supplied by her. He adopted the "indicator lending rate/Small Business/Variable/Small Overdraft" rate published by the Reserve Bank of Australia for the month before the start of the company's financial year as representing the appropriate interest rate to apply. He chose that because he said that "it represents a rate of which small business would borrow and this is a small business that has borrowed ...". He chose it because he thought it was an appropriate rate.

590. In general terms, I prefer the evidence of Mr Meredith to that of Mr Haley which, in my view, has been compromised by his reliance on instructions that were not borne out by the admitted evidence.

591. Evidence was given by two retail economists, one retained by each of TTC/Leda on the one hand and BHPL on the other.

592. BHPL retained Sean Stevens who was a retail economist with Essential Economics Pty Ltd, with particular expertise in market assessments, location analysis and impact assessments for retail commercial developments. He had an Honour's Degree in Economics and was a Member of the Retail Committee of the Property Council of Australia (Vic) and a Member of the Victorian Planning and Environmental Law Association.

593. Gavin Duane was an economist at Location IQ in Sydney. He was retained by TTC/Leda. He had a Degree of Bachelor of Economics (Honours) and had advised in the fields of market analysis and strategic research since 1993 to a wide range of clients in the retail, residential, commercial, industrial, and shopping centre industries. He had appeared as an expert in a number of planning courts and tribunals.

594. These witnesses also conferred and prepared a helpful document which identified the areas of agreement and disagreement.

595. Mr Stephens made three affidavits which were filed and read. The first affidavit was really used to annex his Report which was prepared in the form of what was called an "Expert Witness Statement". He acknowledged being bound by the Expert Witness Code of Conduct.

596. His Witness Statement included a detailed Curriculum Vitae and a brief summary of the instructions he had received. He also outlined visits he made, documents he reviewed and the discussions he had, particularly with Ms Hungerford and BHPL's lawyers.

597. His Witness Statement heavily relied on instructions. This included his instructions that Ms Hungerford, before the purchase of the Giving & Living business, "undertook a process of due diligence" but it was not clear that he had details of what actually was done. Regrettably, some of his instructions were incorrect, in particular, in respect of the opposite tenancy being vacated by Go-Lo and then occupied by Hot Dollar.

598. In his Witness Statement, Mr Stephens opined that the developments in the Courtyard resulted in "a significant increase in the investment risk" of the purchase of the Giving & Living business, undermining the potential for customer traffic through the Coles Door.

599. He further considered that "an objective" of the developments was "to encourage people" coming from the south-west car park and the government offices to enter through the Courtyard and the Target Door at the expense of the Coles Door. He undertook a calculation of the moving annual door counts between April 2004 and October 2008 which showed a decrease of 15.3 per cent for the Coles Door and an increase of 7.8 per cent to the Target Door. He also relied on a survey to which I later refer taken on one day for an hour over lunchtime which showed a much smaller number of persons displaying what was said to be government identification.

600. As a result, he considered the potential trading impact on the Giving & Living business much greater than just the reduction in gross foot traffic through the Coles Door would imply.

601. He also undertook a zone analysis showing the shops in the Target Mall out-performed the shops in the Coles Mall from June 2003 to December 2007 in increasing retail sales which, he said, supported his view that the development work had caused a detriment to the Giving & Living business.

602. He considered that the introduction of paid parking would have had an effect on the relative attendances of the Hyperdome as the location of a retail business. He also considered "operational issues" and considered, on the basis of the instructions he had received and the information available to him that the Giving & Living business after purchase by BHPL was well-managed. He considered that the Hyperdome had a relatively low marketing budget but could not say what the exact impact on sales would be. He considered economic conditions in Canberra were generally strong and there were no significant impacts on the retail section.

603. His conclusion was that the most important factor in the trading performance of the Giving & Living business was the decline in passing foot traffic with a secondary factor being the competition provided by the Hot Dollar store.

604. His second affidavit also annexed a Report responding to the Report of Mr Duane. He agreed on a number of matters but disagreed on the extent of the competition from the Lifestyle Centre shops, the extent of the effect of the change to foot traffic in the Coles Mall and the extent of the effect of general economic conditions. He explained his reasons for disagreement.

605. His third affidavit annexed a supplementary report which provided information on the location of tenancies that experienced a decline in their sales between June 2003 and December 2007 which he said was a result of the development works.

606. Mr Duane made two affidavits which were filed and read almost in their entirety. The first affidavit effectively annexed his Report commissioned by the solicitors for TTC/Leda. He acknowledged being bound by the Expert Witness Code of Conduct.

607. The Report included a detailed Curriculum Vitae. In it, he also set out the letter of instructions given to him and the material he had received and on which his Report was based. In the Report, he described the Giving & Living business and its sales. It referred to the general circumstances of the business, including the general economic conditions at the Hyperdome, including the Lifestyle Centre. He then addressed particular issues: paid parking, the Hot Dollar tenancy, the Manuka and Yarralumla stores, the pedestrian signals at Athllon Drive, and the Courtyard works. He also undertook a zone analysis and considered the issue of rent relief.

608. He concluded that the key factors impacting on the sales decline that the Giving & Living business experienced were the opening of the stores in the Lifestyle Centre and the Manuka and Yarralumla stores. He considered that the introduction of paid parking, the developments in the Courtyard and the Hot Dollar tenancy would not have had a material impact on the Giving & Living store and that a sales impact would have been experienced from the low growth or lack of growth in the Tuggeranong trade catchment area.

609. His second affidavit also annexed a further Report which addressed further affidavits filed by BHPL, including those of Mr Stephens, Mr Honkanen and Mr Benjamin Grima (to which I refer below at [864]). He concluded that the further survey conducted by Mr Grima did not show a significant change in foot traffic and that the pedestrians using the Coles travelator would have had the same relevant exposure to and visibility of the Giving & Living store as those using the Coles Door.

610. Fundamentally, the substantial disagreement between Mr Stephens and Mr Duane was on the amount and then the effect of decline in foot traffic in the Coles Mall on the trading of the Giving & Living shop.

611. Both of them agreed on the importance, particularly for small speciality retailers in a shopping centre environment, of the volume of pedestrian or customer traffic passing in front of the shops. In the words of Mr Stevens, "In a shopping centre often you are not renting the floor space of a shop itself, you are actually renting the people who are going past your door".

612. Both witnesses agreed that there had been a decline in foot traffic in the Coles Mall between April 2004 and July 2008. This was not inconsistent with the evidence of the foot traffic counts which showed that the Coles Door remained the highest or second highest entry for foot traffic, for the table produced by Mr Duane showed a decline in Coles Travelator and the Target Door also.

613. The effect on trading for the other stores in the Coles Mall was, however, somewhat dissimilar. The Giving & Living store, which changed to Hungerfords, had a fall of 42 per cent in sales; the next highest fall in sales revenue of a store in the Coles Mall, however, was Design Home Australia at only 13 per cent. The store opposite Giving & Living, Hot Dollar, had increased sales over the period, as did the optometrist, OPSM, and Beaky's Books.

614. Mr Stevens also indicated that there seemed to be a fall in the number of government employees passing through the Coles Door. While the identification of such employees was rather rudimentary, namely as to whether they had identification tags on or not, there seemed an acceptance that this was an appropriate method. I am not sure that it was. It is likely to give an underestimate.

615. Mr Duane, however, pointed out that neither the Manuka nor the Yarralumla stores were particularly close to government offices; indeed, there was very little by way of government employment around the Yarralumla shops. While the Giving & Living store was decreasing in sales, the Yarralumla and Manuka stores were maintaining reasonable sales.

616. Mr Stevens relied on some door counts that were conducted in 2009 and 2013, to which I refer below (at [860]-[863]). Those counts purported to show relatively small numbers of people coming through the Coles Door compared to those coming through the Target Door. They also purported to show, based on identification tags, relatively few government employees coming through the Coles Door as compared to the Target Door.

617. There were, however, a significant number of problems with these surveys. In the first place, the time period is well out of any relevant period for this case. In the second place, there was no count comparable to these for the period prior to September 2003 when BHPL purchased the Giving & Living store.

618. It is also relevant that traffic lights were installed across Athllon Drive at approximately the entry to the Lifestyle Centre. These were installed prior to BHPL purchasing the Giving & Living store. That gave protected access to public servants from the buildings immediately across Athllon Drive, namely Centrelink, though there was, before the installation of the traffic lights, a pedestrian crossing which give pedestrians a right of way. There were, it would appear, large numbers of government employees in those buildings. There were also developments in the grounds of those buildings over which the Hyperdome had no control.

619. Mr Duane also criticised the data because the first survey was conducted on one day only for a period of about one hour. He submitted that it was very weak or, "in economic terms, not statistically robust". The survey, in April 2013, was for a period from 11:30am to 1:30pm of the Coles Door and it showed that 25 per cent of those entries were, based on identification tags, government workers. That throws doubt also on the validity of the 2009 survey.

620. Mr Stevens relied upon a comparison between the Target Mall and the Coles Mall. He noted that the foot traffic in the Target Mall increased by 23 per cent over the period, whereas the foot traffic in the Coles Mall had increased by two per cent over that same period. That, of course, can depend on the base numbers; for a small base, a small absolute increase can, nevertheless, be a large percentage increase. He also pointed out that three stores in the Coles Mall that had experienced declines in sales were stores between the Coles Door and the Coles travelator. That is to say, they would have missed foot traffic entering the Coles Mall from the Coles travelator.

621. There was a difference between Mr Stevens and Mr Duane in relation to the effect of traffic through the Coles travelator. Mr Stevens felt that it would have little effect because it did not lead foot traffic entering the Coles Mall by the Coles travelator past the door of the Giving & Living store. Mr Duane pointed out, however, that it did open into the Coles Mall opposite a significant shop window for the Giving & Living store so that its wares were obvious.

622. Mr Duane pointed out, further, that the Target Mall was a much "younger" mall and that this could have an effect on the percentage growth, a version of the point I made above at [620].

623. Mr Duane also pointed out that the decline in sales for the three stores in the Coles Mall that suffered a decline in sales was markedly different for two of them compared to the Giving & Living store. A computer store experienced sales decline of one per cent. This was compared to the Giving & Living store decline of 42 per cent. As indicated above at [602], Design Home Australia only experienced a sales decline of 13 per cent.

624. He also remarked that another store in roughly the same location, between the Coles Door and the Coles travelator, Hot Dollar, had a significant increase in sales.

625. Mr Duane also felt that competition elsewhere in the Hyperdome was also relevant. He considered it an important issue. He felt that the Hot Dollar store significantly affected the sales of the Giving & Living store.

626. Mr Stevens, in his original report, was, unfortunately, mis-informed that Hot Dollar had not opened its store until February 2004.

627. He reviewed the product lines sold by Hot Dollar and identified approximately 50 per cent of the merchandise which he thought would compete directly or indirectly with the Giving & Living store. He suggested this would account for approximately $567 200 in sales.

628. Subsequently, he was corrected that Hot Dollar had, in fact, opened prior to BHPL taking over the Giving & Living store. He also seemed to resile from his suggestion that there was a significant overlap and competition between the two stores, particularly as Hot Dollar had experienced an increase in sales over the relevant period. He did not explain his change of mind.

629. Mr Duane was also of the view that the reduction in foot traffic was difficult to relate to the reduction in sales of the Giving & Living store. During the relevant period, foot traffic in the Coles Mall, if the Coles travelator is included, reduced by only about six per cent to eight per cent; if a count was just taken of the Coles Door itself, it reduced by 10 per cent to 12 per cent. He considered that it was not rational to correlate that with the 42 per cent fall in sales of the Giving & Living store.

630. Mr Stevens agreed that there was not necessarily a linear relationship between drop in foot traffic and reduction in sales but referred to the "dynamics", although it was not entirely clear to what he was referring.

631. It appeared that he was referring to a drop in government employees accessing the Coles Mall but, of course, there was no comparative information of that in the evidence. He also suggested that, while the Hot Dollar store did not experience a decline in sales, it was arguable that it would have experienced a greater increase had the fall off in foot traffic not occurred. That would be extremely difficult if not impossible to demonstrate accurately. That, of course, does not mean the argument should be ignored.

632. Mr Duane denied that the difference in foot traffic would be substantially in terms of government employees. He also took the view that the changes in the architecture of the Hyperdome, with the erection of bollards and pipe railings and the low wall would be unlikely to have caused substantial changes in the habits of pedestrians.

633. Mr Stevens relied on the installation of the traffic lights across Athllon Drive at approximately the entry to the Lifestyle Centre. It has to be noted that those lights, however, were installed prior to BHPL purchasing the Giving & Living store.

634. It was further pointed out that they replaced a zebra crossing where, of course, pedestrians have a priority over vehicle traffic.

635. Mr Stevens relied upon the 2009 survey which showed a larger percentage of government employees (again, only assessed by virtue of their identification tags), coming through the Target Mall rather than the Coles Mall. The difficulty with that survey was that there was no "before" survey to say whether either the absolute number or percentage of government employees had fallen. It was, also, undertaken for a very limited period, namely one hour in one day.

636. From that perspective, it might be compared with the 2013 survey which took a snapshot of two hours of the Coles Door showing 25 per cent of those entries were government identified workers.

637. Mr Stevens referred to a zone analysis. A zone analysis breaks up a shopping centre into particular components, but then allows a judgement about the relative performance of the zones. It also provides information from which an analyst or an economist can draw conclusions about why that may be occurring and what can be done about it.

638. He described what he said had happened in the Hyperdome, when he compared the traders in the Coles Mall from the Coles travelator as one zone and those in proximity to the Target Door as the other zone. He said it was immediately apparent, undertaking that zone analysis, that the traders in the Target Mall had significantly out-performed those in the Coles Mall. The sales of stores in the Target Mall increased by 23 per cent over the period whereas the sales of stores in the Coles Mall by only two per cent over the same period. Thus, he concluded the Target Mall zone had out-performed the Coles Mall zone and he sought a common feature across all the tenants in the Coles Mall zone and, in particular, that three tenants there experienced a sales decline. He considered that the common feature was the level of customer traffic using the Coles Door.

639. Mr Duane was sceptical of that analysis. He pointed out that the Target Mall was a new zone establishing itself. Growth profiles for the tenants were at different levels and, as noted above, the Target Mall was a "younger mall". He felt that the zone analysis was of limited value in this instance.

640. He also noted that there were competitive pressures which might explain the sales decline for some of the other stores. For example, the computer store had other competitors in the Target Mall and in the Lifestyle Centre.

641. He felt that it was too much of a leap to say that foot traffic was the whole answer, particularly where the Hot Dollar store had increased its sales.

642. Consideration then turned to identifying competition more precisely. Mr Duane felt that the competition from the Lifestyle Centre and the Target Mall was a very important issue. In addition, the Hot Dollar store opening opposite Giving & Living also affected its sales and Mr Stevens agreed with that.

643. Mr Duane noted that the stores which Mr Stevens suggested had a 10 per cent direct competition level and another with a 30 per cent direct competition level were significant levels of competition. Those two stores had sales revenue of $1 000 000 each.

644. Further, other competitors in the region of $400 000 to $500 000 of sales revenue had started operating prior to BHPL taking over the Giving & Living store. His view was that these competitors must have had a significant impact on the sales of Giving & Living.

645. Mr Stevens agreed that there was competition; "every retailer is competing". The issue, then, was not whether there was competition, but whether the competition significantly affected sales over a period of time. He considered that the Lifestyle Centre was anchored by a large electrical and white goods store which had very little or nothing to do with the core functions of the Giving & Living store.

646. Nevertheless, Mr Stevens agreed that there were some product lines in stores in the Lifestyle Centre which had a relevant crossover with the Giving & Living store. He noted that the Giving & Living store was a specialist gift and home wares store whereas for the other traders those product lines were ancillary type products. He considered, however, that there was a functional difference between a store with a wider range of products and a more specialised store. He also noted that reports he had seen showed that, during the relevant period, the Hyperdome was "underweight in terms of giftware and home wares". If that were so, it is difficult to explain why the Giving & Living store suffered such sales reduction if it was being conducted well.

647. Mr Duane had a different view. He considered that the three competitive stores were much larger and felt that if a customer was in the business of shopping for home wares or gifts, these stores would have provided a much greater range and depth. Mr Duane considered that the Giving & Living store was not able to respond to that competition when impacted by it; the competition was just not handled reasonably well.

648. Mr Stevens pointed out, however, that it was important for competition that there be a significant passing foot traffic for the speciality stores.

649. The issue of the two new stores at Manuka and Yarralumla was then considered.

650. Mr Duane made the point that it was highly unusual for a retail chain of any sort to be opening stores in an environment where it had declining sales. He thought also that it might impact on the sales in the Giving & Living store because there would be persons who would be likely to go to the closest stores rather than to Tuggeranong. This would affect, in particular, residents within the northern part of the catchment for the Giving & Living store. Thus, he considered that there would be some lost sales for the Tuggeranong store. That, of course, would be different were the stores to be further away and not within the catchment for Tuggeranong and the Hyperdome.

651. Mr Stevens took the view that the other stores were, in fact, outside the trade area served by Tuggeranong. Although Mr Duane did agree that they were outside the trade area, he did not agree that they were "well outside" the trade area. Mr Stevens also felt that the nature of the stores meant they were far more likely to serve a localised catchment. He did not disagree that there might potentially have been some decisions made where a purchase was from Yarralumla rather than Tuggeranong but he considered that it would not have a meaningful impact on the trading performance of the Giving & Living store.

652. In essence, both agreed that there could be an impact; Mr Duane said that it is significant and had to be taken into account, whereas Mr Stevens said it was not significant and should not be taken much into account.

653. Mr Duane pointed out that the two stores contributed about $360 000 in sales. Thus, even if 10 per cent or 20 per cent of those sales were a redirection from the Giving & Living store, it would contribute $40 000 to $80 000 of the reduced sales of the Giving & Living store, which is 10 per cent to 15 per cent of total sales for the Giving & Living store. He did not believe that it was an unbelievable scale of impact.

654. Mr Stevens could not accept that "with the wealth of opportunities that people have to purchase giftware and home wares - all manner of locations across southern Canberra" these impacts were a reasonable assumption to make.

655. The change of name was then discussed. Mr Stevens considered that the change of name had no meaningful effect, in part because there was no change of location. He relied also on the fact that there was an advertising campaign that would create awareness of the new name. He did not think that there was necessarily a cause and effect between the change of name and the decline in sales.

656. Mr Duane considered that the change of name, which was accompanied by a change in livery and colour scheme, would effectively mean to the consumer that it was a brand new store; a different store from what it previously was. His view was that it would have some consequences for those who were previously loyal to the Giving & Living brand. Mr Duane said that it was not the main cause but it was a component, particularly for a brand that had been in the location for 10 to 11 years. To change to an unknown brand could, he said, most likely have had some sort of impact on the sales of the store.

657. Mr Stevens felt that it could just as well be a positive as well as a negative impact. He felt that the change of name may have arrested part of the decline particularly as he found that there was then some stabilisation in the sales in the store. He did not provide any information linking the two, however. Indeed, he agreed that it was not necessarily the case and said, "We'll never actually know that".

658. He accepted that there was some goodwill associated with the Giving & Living name but felt that it was limited, particularly as it was, in his opinion, a "one-off home wares and giftwares store". He could not see that the goodwill could not be transferred to another name as long as it was providing an appropriate level of service, pricing and products.

659. Mr Duane agreed that changes in name can have a positive effect but, in this instance, it did not seem one of the more obvious examples of this, given that it did experience a decline in sales and other stores in the same location did not experience the same decline in sales.

660. The final area of consideration by these experts was the question of the management of the store.

661. Mr Duane felt that the quality of management could have had a significant impact. He noted that a major employee had been dismissed, there had been a change of livery and brand, and two other stores opened within the same catchment.

662. His view was that "those operation[al] issues in total would have had an impact". Further, the one person was now trying to operate three stores as opposed to one and the management of the store would have impacted on the performance.

663. Mr Stevens, however, saw that while the Giving & Living store was declining, the other stores were managing to generate increases in sales. That, from his point of view, meant he was somewhat confident that there were processes in place able to generate increasing sales.

664. He also noted that the Hyperdome Centre Management rated BHPL highly as an operator and wanted to retain it as a tenant. This was, of course, based on alleged representations that were disputed.

665. He noted that there had been an internal promotion for the store supplemented by Ms Hungerford herself. He was not convinced, accordingly, that management processes were to be blamed evenly partly for the significant decline in sales.

666. Mr Duane agreed that there was not what might be called "base evidence", to say whether the management was good or bad. He made the point that the two new stores at Manuka and Yarralumla were very low trading stores and had come off a very low base of sales, which would mean percentage increases were not meaningful.

667. Mr Stevens said that the key issue was the direction of the sales. He also pointed to the decline in sales for the other stores in the Coles Mall.

668. Mr Stevens gave evidence about the importance of visual cues between locations which assist in customer and pedestrian flow and traffic. Sight lines are important so that, if, for example, a customer can see the other end of a mall and the type of trade that is there, that might allow for customer to be attracted to follow that visual cue.

669. He also thought that the pipe railings were a visual cue that limited permeability and would have inhibited pedestrians from continuing into the multi-storey car park to the Coles Door.

670. Mr Duane agreed with the principle of sight lines but was hesitant to talk about the barriers as it was not his field of expertise. He felt, however, that such barriers as were installed here would not change people's knowledge or view of the "entry statement" to the Coles Mall. Importantly, they were not impermeable and had pedestrian gaps. He agreed, however, that the person with less specific intent could potentially be influenced but that it was hard to be precise about that. His experience was that shoppers are creatures of habit and will use the same entry and the same route many times.

671. Mr Duane agreed that while those persons who were in the habit of travelling through to the Coles Door would continue to do so but, for example, government employees more recently joining departments might be more inclined to be guided by the rails. Nevertheless, he pointed out that, over time, people would get to know the Hyperdome and understand what components they could and would want to visit.

672. Mr Stevens was asked about the relative sales in the Coles Mall and the Target Mall. He noted that over the relevant period the average increase in sales for the speciality shops in the Target Mall was an increase of 48 per cent whereas in the Coles Mall it was an average of two per cent. I note that, of course, the Target Mall as a younger mall would have a lower base. Nevertheless, there did seem to be an increased performance in the Target Mall.

673. Mr Stevens reiterated that speciality shops rely on the exposure to customer traffic that is generated by the anchored tenants and the other components of the shopping centre; that is effectively what drives the sales and patronage of those stores.

674. Mr Duane pointed out that the Target Mall would benefit also from the Lifestyle Centre flow on increases as earlier discussed. The Lifestyle Centre was, of course, already part of the Hyperdome when BHPL became a tenant. He pointed out, also, that the total Centre sales increased by five per cent or, from June 2003 to December 2007, by 7.5 per cent. The Coles Mall increased by two per cent so that the under-performance was not a significant under-performance.

675. Mr Duane also agreed that a large number of people who were going through the Coles Door would be going to Coles, which had a loyalty program as well encouraging them to go to that store. He pointed out that the speciality shops grew at the same two per cent that the whole Mall, including Coles, grew in their sales.

676. Mr Stevens was not attracted by the argument that the Target Mall speciality shops were starting from a low base. He noted that there were various factors involved which was the nature of retailing; particular types of traders will have different trading levels. To him, the important thing was the absolute level and the trend.

677. There is another difference between Mr Stevens and Mr Duane. Mr Duane felt that the existence of the Lifestyle Centre and its development by the Hyperdome would have made particular benefits accruing to the Target Door. He thought that these were much more significant than the improvements in the Courtyard.

678. Mr Stevens had visited the Lifestyle Centre and found that it was not particularly busy but was used mainly as a thoroughfare by office workers. He felt that the works in the Courtyard had made significant changes to the accessibility of pedestrians to the Target Mall, particularly from across the south west car park.

679. Mr Duane was cross-examined. He agreed that specialty stores such as the Giving & Living store relied on customer flow and, for that reason, a location at the end of a mall can be desirable.

680. He was asked some questions about the comparative situation with the Coles Door and the Target Door. He agreed that the Coles Door lost traffic and that the Target Door had gained traffic and that this would give greater opportunities for retailers in the Target Mall. He agreed that there was then a potential for the Giving & Living store to lose shoppers. He doubted, however, that there was evidence that it happened in significant numbers.

681. He felt that habits of customers were important so that government employees who were accessing the Hyperdome for lunch may well still use the Coles Door as they could still access the Food Court more conveniently through the Coles Mall.

682. Part of the issue was, of course, the Coles travelator which was included in the calculations about foot traffic in the Coles Mall but not, of course, in the calculations of foot traffic through the Coles Door. Mr Duane agreed that most users of the Coles travelator would turn right and would only turn left if they were intent on browsing in the few shops within the Coles Mall to the left of the Coles travelator or were going to a specific shop.

683. He thought, however, that the Giving & Living store was in a different position as the users of the Coles travelator would have clear sight of its window for about 20 metres and thus, any attraction in the nature of passing traffic would still be relevant for that store.

684. It was put to him that a survey had shown that 17 per cent of users of the Coles travelator turned left and 82 per cent turned right, and while he accepted that the majority turned right, he said that the number of customers turning left was not insignificant.

685. He was asked questions about BHPL opening two extra stores in Manuka and Yarralumla. His view was that it would have a deleterious effect because customers from part of the catchment area would attend closer stores rather than to go to Tuggeranong. This, of course, relied on some branding recognition, but it did have the capacity to cannibalise the support for the Giving & Living store. He said that there were also differences because Yarralumla and Manuka were what were known as strip-based shopping centres where, for the most part, potential customers could see the shops by driving past, unlike the Hyperdome where most stores could only be seen on entry into the shopping centre.

686. He accepted that there was a relatively large government business, Medibank Private, at the outskirts of the Manuka Shopping Centre, although it was also close to the Kingston Shopping Centre. He said, however, that it was unusual to open new stores when the current store was not doing well.

687. He thought that the casual leasing by BHPL of a kiosk in the Target Mall was a positive strategy, as was sourcing cheaper goods, but only if they were goods that customers valued. He thought that the provision of tea and coffee, as proposed by BHPL and which was tried, was positive but with a qualification, namely if that was what people wanted.

688. He was unsure about whether the change of name was a positive step. He pointed out that it could affect people at the margins, who may not be aware that the store continued to be operated by the same people, and confirmed his view that it probably affected the Giving & Living shop's sales in a negative way. He agreed that branding is irrelevant in terms of exposure but would not have the added attraction of prior knowledge for those who are not regular customers.

689. He agreed that if the travelator outside the Coles Door was not operating that would affect the customer exposure to the Giving & Living store.

690. He agreed that the efforts BHPL had made to relocate the store into the Target Mall was a good strategy and agreed that decreasing staffing, including staff hours, was also an appropriate strategy, but again conditionally, namely only if the level of service did not decline and did not reduce sales.

691. He agreed that extra marketing was appropriate.

692. He noted that, in his view, it was a problem that a competent manager had been dismissed and replaced with a less experienced person and that this, combined with the opening of additional stores, would put significant adverse pressure on management.

693. He also agreed that paid-parking could influence foot traffic, especially if cheaper or free parking was available elsewhere and that this did not lead persons arriving by car to the Coles Door. There was, of course, no free parking elsewhere and there was no evidence of comparative parking fees.

694. He was asked a number of questions about Ms Hungerford's business plan increases. He agreed that it was necessary for a business to increase sales particularly as costs such as rent increased. He noted that, of course, the same result could be achieved by savings. He did not agree that it would be expected that the increase in sales would be the same as the increase in rent. That must be obvious because of the different cost-base.

695. He considered that the 10 per cent per annum growth projected by Ms Hungerford was unrealistic, particularly in a situation of limited population growth and increasing competition. His view was that it would be very difficult to achieve that growth. He noted that, for a shopping centre, such as the Hyperdome, the expected growth in sales was about three per cent.

696. He also pointed out that this was a particularly challenging target when the store was an established one.

697. I was generally disposed to accept Mr Duane's evidence which seemed to me to be more consistent with the other evidence in the case and had a plausibility that encouraged acceptance.

698. Mr Stevens, was also cross-examined. He explained that, in September 2009, Ms Hungerford showed him around the Hyperdome. He then took photographs and had discussions with her at the time about her trading performance and other matters, including a description of her concerns and the issues she had.

699. He was aware of the door count survey conducted on 9 October 2009. He also made two site visits with Ms Hungerford and a number of independent visits on his own.

700. He did discuss his Report with BHPL's solicitor for whom Ms Hungerford worked for a time, but did not recollect having any significant discussions with her about the Report.

701. Mr Stevens was asked about the store, Hot Dollar, which opened opposite Giving & Living at approximately the same time as BHPL took ownership of the Giving & Living store. He was asked about the review in his Report of the product line sold by Hot Dollar finding that "approximately 50% of sales at Hot Dollar are in merchandise which compete either directly or indirectly with [Giving & Living]". He accepted that the Hot Dollar store increased its sales over the four year period during which it competed with the Giving & Living store. He was asked about whether, if foot traffic was relevant to the drop in sales at the Giving & Living store, the Hot Dollar ought also to have shown a drop in figures. He agreed but suggested that it would have experienced lower sales than otherwise would have been achieved.

702. It was suggested to him, however, that, alternatively, Hot Dollar might have conducted its business more effectively. He was, apparently, unwilling to concede that, diverting the question to a comparison of the market to which the two had directed their businesses.

703. He did make the point that Hot Dollar had only commenced in late 2003 whereas Giving & Living had been an established business. On the other hand, it is to be noted that Hot Dollar replaced a Go-Lo store which, in his Report, Mr Stevens accepted also sold products in competition with the Giving & Living store. This would, of course, moderate the effect of the competition which would have been experienced had the Hot Dollar store replaced a completely different store or started from a completely new location.

704. Nevertheless, Mr Stevens pointed out that it was difficult to know whether the Hot Dollar store would have increased its sales beyond that which it did if the changes to the Hyperdome, which he said were prejudicial to the trading operations of the retailers in the Coles Mall, had not occurred. He pointed out that the Hot Dollar store was trading at about $1.3 million in sales whereas the Go-Lo store had achieved $1.7 million worth of sales.

705. It was also pointed out to him that the Coles store did not experience a drop in sales over the period, but he pointed out that, because of its location, further down the Mall and closer to the interior of the Hyperdome, it would attract customers from multiple directions within the Hyperdome not available to either the Hot Dollar or Giving & Living stores. In any event, he pointed out that Coles was an "anchor tenant" because of it general strength of its operations and general attractiveness.

706. It was suggested to Mr Stevens that the specialty stores in the Coles Mall overall experienced an increase in sales of two per cent despite the substantial decline of the Giving & Living store. It was suggested to him that this was inconsistent with the systemic or structural explanation he provided for BHPL's turnover decline and he disagreed. He said that the reduction in customer access would result in a "moderating influence on the achievable sales for the traders ... within that zone" and then compared it with the increase in turnover in the Target Mall which did not seem to me to answer the question or explain why he disagreed at all.

707. He was asked whether the significant drop in sales showed that the Giving & Living store was an "outlier". For some reason, unexplained on the evidence, he would not accept that description, although it seemed to me to be patently obvious in that the Giving & Living store experienced a very significantly larger drop in sales, more than two times that of any other store in the Coles Mall. This must have meant there was some difference in cause inherent in the Giving & Living store.

708. He was asked some questions about the October 2009 foot traffic survey and agreed that it did not, of itself, inform whether there was a reduction, an increase or no change. He said, however, that his experience and professional opinion was that the changes in the car park reduced the accessibility to the Coles Door.

709. He said that the results of the October 2009 survey confirmed his views, but was unable to say why they confirmed his views, rather than simply being consistent with them. In this regard, his answers seemed to me to be curious. He was asked, "In statistical analysis, to draw any conclusion of change, one needs to look at the situation before and the situation after?" and he agreed, "Absolutely". He agreed that, from this survey, he could not say whether the figures "reflect a rise, a fall or no change at all". When it was put to him that the opinion that the survey confirmed his views was "simply an example of confirmation bias", he gave the somewhat curious answer that "given the fact that I was testing my own proposition with this table I don't think that that is confirmation bias. I think that is good analytical practice". I did not understand how that could be so in the circumstances.

710. He was then asked some questions about what he saw as the barriers and changes that affected the number of customers entering and passing through the Coles Mall. He described them as "changes to the car park and the bollards and the like". He was then shown photographs of at least one of the bollards and of the pipe rail barriers. He was asked to explain how the bollard diminished the extent to which the Coles Door was capable of being used as an access and he answered, somewhat oddly, having regard to his other evidence, that he did not think it reduced accessibility at all. He could not recall whether any of the other bollards were different or not, making his reference to the bollards reducing accessibility rather curious.

711. He was also asked about the pipe rails and agreed that there was accessibility between the pipe rails and, indeed, at the very point of the pedestrian crossing. He was asked whether the effect would be to "cause pedestrians to travel safely towards the pedestrian crossing" and, instead of agreeing, as one would expect, he simply asked whether it was the purpose of the rail barriers. He agreed, however, that this was a reasonable purpose to assume but also, reasonable as well, that the purpose was to try to prevent cars from crossing the barrier.

712. He was asked about the risk of "having pedestrians wander freely through car parks" and agreed that there had to be "some sense of pedestrian safety" but that pedestrians generally do wander through car parks. He agreed, however, that it would be reasonable to plan for pedestrians to be directed towards the pedestrian crossing.

713. He was asked some questions then about the dome over the Courtyard, which he had described as an attractive entry point to the Hyperdome.

714. When it was pointed out to him that it had not been erected until 2006, he agreed that it could not be the cause of the approximately 34 per cent drop in sales of the Giving & Living store between 2003 and 2005.

715. He did not agree that the change of name would have had any meaningful impact and he did not consider that the opening of the Manuka and Yarralumla stores would result in any reduction in sales of the Giving & Living store.

716. He agreed that the opening of the Lifestyle Centre would have an effect on the Giving & Living store sales but agreed that it was part of the normal competitive effect and that he had not taken it into account in his investigations as a significant contributing factor to the reduction in sales in the Giving & Living store. It was not clear to me why the normal competitive effect would not be taken into account.

717. He acknowledged that the Hot Dollar store had some competitive effect, which he put at about 20 per cent. I could not see any facts set out in his Report to assist in identifying whether that was a reasonable percentage or not. That would have resulted in accounting for 8.4 per cent of the decline in the Giving & Living store sales.

718. He also relied, as additional factors, on the sign on the ground floor wall of the

multi-storey car park directing pedestrians to the shops through the Courtyard and the fact that the travelator outside the Coles Door was, he was instructed, regularly broken down. He considered the bollards, pipe rail and link works, however, were the main factors leading to lower foot traffic and that the others were peripheral.

719. He was asked questions about the effect of government workers using the Coles Mall, the reduction of which he considered to be very significant.

720. He had not undertaken any personal investigations, but he referred to a Marketing Report prepared for the Hyperdome which identified various market segments and indicated a significant reliance on office workers. It was not clear whether they were only government workers or whether they included workers from the other private offices around the Hyperdome. No doubt, however, the larger number would be government workers.

721. He agreed that he had no evidence that other stores in the Coles Mall were in any sense reliant on government workers or not and that he had, in fact, no actual evidence of a decline in the number of government workers in the Coles Mall.

722. I was generally concerned by the evidence that Mr Stevens gave. He seemed unwilling to concede matters that seemed obvious; he could not explain changes between his Report and his evidence and he seemed to avoid answering questions which may have disclosed some discrepancies between other facts and his Report.

723. I would be hesitant in relying on the opinions of Mr Stevens without clear factual corroboration which was, for the most part, not evident.

724. The next conclave of experts which resulted in concurrent evidence involved those whose evidence related to the physical changes to the Hyperdome and their effects. Four experts gave evidence in this part of the proceedings.

725. Timothy Hunter was the Principal Architect of Hunter Architects, which firm had been the architects for the Hyperdome from about 2002, engaged to undertake a whole series of works at the Hyperdome between 2003 and 2006, including at the Lifestyle Centre.

726. He held the degrees of Bachelor of Environmental Design and Bachelor of Architecture and had been involved in building projects in Australia and internationally.

727. Michael Baker was an independent retail shopping centre economist with 18 years experience in the industry. He worked for shopping centre developers on acquisitions, retail expansion strategies and associated projects.

728. Martti Honkanen had completed five years of a six year degree in architecture but did not graduate and so was not entitled to call himself an architect, though he did carry out architectural work. He had worked in other areas of construction, mostly in building and development work, as well as assessing and advising on the work of others. He was accredited as an arbitrator and mediator and held various building licences.

729. Graeme William Shoobridge was an engineer, holding the degree of Bachelor of Civil Engineering. He was a Member of the Institution of Engineers Australia and the Association of Professional Engineers, Scientists and Managers Australia. He was a Divisional Director of Mott MacDonald Group, engineers and consultants. He had over 40 years experience as a Senior Traffic Engineer in both the Commonwealth and ACT Governments.

730. Each of the experts filed affidavits, largely annexing reports they had prepared at the request of the lawyers for the parties.

731. Mr Hunter made three affidavits of 24 October 2012, 30 June 2014 and 11 September 2014. His first affidavit set out his background and relationship with the Hyperdome as described elsewhere (at [724]-[726], [737]). He also attached relevant plans, photographs and documents describing the work he and his firm undertook for the Hyperdome. The work was set out in five development applications to the ACT Planning and Land Authority, as follows:

DA2003 8422 - submitted 1 September 2003 relating to new awning structure and a toilet block in the Courtyard. The application was approved on 14 October 2003. The awning replaced an existing awning over the walkway between the Lifestyle Centre and the main Hyperdome building.

DA2003 8417 - submitted 1 September 2003 relating to development of the Lifestyle Centre, including retractable awnings on it, a new loading dock and windbreak. It included a low brick wall between the government car park and the unpaved area that led to the Courtyard. It was approved on 1 October 2003.

DA2004 3238 - submitted on 8 October 2004, relating to a cove; kiosk, stage and associated works in the Courtyard. It was approved on 23 December 2004. The plans were later amended. The works were not commenced until after August 2005.

DA2004 0291A - approved on 3 March 2005 relating to reconfiguration of existing shops fronting on to the Courtyard.

DA2005 04574 - submitted on 11 October 2005 to amend shop T9 in the Lifestyle Centre.

732. Mr Hunter's second affidavit was in reply to the affidavit of Mr Honkanen. He took issue with some of Mr Honkanen's costings, but I do not need to address that. He also said that the works were completed in April 2004 not, as alleged by Mr Honkanen, in January 2004. There were other matters of disagreement which I do not need to address.

733. Mr Hunter, however, did contest Mr Honkanen's view that the development works had a detrimental effect on the foot traffic through the Coles Door. He pointed out that the Courtyard was already in 2003 of good amenity; it was open space which included trees, public seating, external lighting, a covered awning over the walkway between the two buildings and was flanked by two restaurants and a bar, which included the open space with external tables and chairs.

734. His conclusion was that the works did improve the amenity but "would not have had a significant effect of drawing people away from the Coles [Door]".

735. He also disputed Mr Honkanen's opinion that the pipe rails served "a visual barrier" and noted that the pedestrian traffic signals on Athllon Drive replaced an existing pedestrian crossing.

736. Mr Hunter's third affidavit set out a detailed Curriculum Vitae, noted that he was bound by the Expert Code of Conduct and confirmed the opinions he had earlier expressed.

737. Mr Hunter gave oral evidence of his involvement as architect for the Hyperdome. He had no involvement, however, in the conversion of the government car park, the development and installation of paid car parking at the Hyperdome or the installation of the pedestrian traffic signals on Athllon Drive. His main involvement was in the improvements to the Courtyard, which had crossed over Scollay Street before it had been closed. This work included the construction of a kiosk and the extension of the shops within the Target Mall area.

738. He was engaged in 2003 to design and supervise construction of covered access to that Courtyard and to give general advice. He gave detailed explanations of the development and the various stages of it. In particular, the work started in 2004 though, in 2003, there had already been a covered canopy that linked the Lifestyle Centre and the main Hyperdome building through the Target Door.

739. The final completion was the erection of a kiosk in the Courtyard and the high tensile dome over it, which were completed in 2006. His evidence was that the works were intended to enhance the existing good amenity which, of course, would have had the effect of increasing the foot traffic through the Target Door.

740. Mr Hunter's evidence was that he had not set out to alter foot traffic but to enhance the amenity and, indeed, he had had no discussions with the Hyperdome about foot traffic.

741. Mr Hunter's view was that the improvements to the Courtyard were not the cause of the increase of foot traffic through the Target Door, but this was caused by other contemporaneous developments, including the opening of the Lifestyle Centre and the business of its key tenants including, in particular, "Good Guys". His view was that they drew people to the Lifestyle Centre and there was a natural progression from there into the Target Mall through the Courtyard and the Target Door.

742. Mr Hunter pointed out that, prior to the improvements being made, there were existing tenancies, including restaurants and a "pub" in the Courtyard which were conducive to people meeting there.

743. In cross-examination, Mr Hunter made it clear that he had not had much discussion with the managers or owners of the Hyperdome about foot traffic. In particular, there was no discussion with him about the impact that any of his design work would have on the foot traffic through the Coles Door.

744. I did not find much of the cross-examination of Mr Hunter to be of very great assistance. He was asked about the possibility of putting up pipe railings to assist with "sort of subliminally or otherwise creating a sideline" that would influence a person on foot to use the Target Door over the Coles Door and he said that he considered that such railings would be ineffective to achieve such a goal and he identified other and better ways of doing that. He also felt the painted sign "To Shops" in the multi-storey car park on the Coles Door level was ineffective.

745. He considered that the pipe rails were "a very weak solution", so far as pedestrians were concerned, as it was still open for people to move through the rails and, if there was a need to re-direct people, "more than a pipe barrier ... would be utilised". He felt it "wouldn't be the best solution".

746. His brief when enhancing the Courtyard was to enhance the connection between the two buildings adjoining it, the Lifestyle Centre and the main Hyperdome building, so that it was dealing better with the foot traffic that was already moving through that zone from one part of the Hyperdome to another; it was not unsafe before the changes were made.

747. Mr Hunter also agreed that bollards were used to stop vehicular access without stopping foot traffic.

748. In re-examination, Mr Hunter indicated that he received instructions from the owners of the shopping centre rather than from the centre manager or centre management.

749. He also said that he was never instructed to design components of his works to direct foot traffic away from the Coles Door.

750. Mr Baker gave evidence next. Much of his Report related to a challenge to the concept of a "desire line" promoted by Mr Shoobridge. Accordingly, I will interpolate the evidence of Mr Shoobridge here.

751. Mr Shoobridge made three affidavits which were all read. In the first affidavit, he set out his qualifications and experience. He also reported on his investigation of the installation of the pedestrian traffic signals on Athllon Drive which he reported were commissioned on 15 August 2003 as part of the Athllon Drive duplication project.

752. He deposed that he had inspected the pipe rails which he said had been installed to prevent direct vehicular traffic between the two relevant car parks and which did not prevent pedestrian access. He expressed that his experience showed that pedestrians choose a travel path determined by a desire line between the person's current location and their destination and that pedestrians are reluctant to vary the desire line which would mean the pipe rails would be unlikely to deter pedestrians. He considered that the low brick walls would have an impact in diverting pedestrian traffic, but not from the Coles Door if that was the destination of their desire line. He also considered that the paid parking would not have a long term impact on the number of visitors to the Hyperdome. He dealt with other matters which, in the context of these proceedings, I do not need to repeat.

753. His second affidavit set out his relevant experience in more detail. I do not have to summarise it save to say he had long and detailed experience in traffic matters, especially related to pedestrians. The affidavit added some supplementary matters to his earlier affidavit.

754. Mr Shoobridge was now in private practice and, as such, had been involved with the redevelopment of the Woden Plaza Shopping Centre, the Queensland Investment Corporations redevelopment of the Canberra Centre, as well as a member of the Technical Advisory Group for AMP Capital Shopping Centres.

755. Finally, his third affidavit added further details of his experience, especially in relation to shopping centres, annexed photographs of relevant areas and added some further supplementary material. The main part of his affidavit was directed to answering Mr Baker's Report, especially that part of it which challenged the notion of the desire line. He produced material to show that it was a widely used concept in traffic engineering, as I am satisfied that it is, and he expounded its use in this context. The matter is further dealt with below. He confirmed his view that the pipe rails and low brick walls would not alter the pedestrian desire line to a significant degree.

756. He first gave evidence about the pedestrian traffic signals across Athllon Drive; they had commenced operations on 15 August 2003 prior to BHPL's occupation of the Premises.

757. He noted that, before the installation of the traffic signals, there had been a "Zebra" pedestrian crossing there, established because the exit from the Lifestyle Centre led the pedestrians there. Such a crossing is, however, appropriate as a safe pedestrian facility in roads with low volumes and speeds of traffic and single lanes in each direction. In this case, the increase in traffic and duplication in the road required the installation of pedestrian lights at the crossing.

758. He noted that the installation of the pedestrian traffic signals was part of the duplication of Athllon Drive and that such a project would normally be foreshadowed on the governments' capital works programme some years before it was actually included in the budget.

759. Thus, it was likely that there would have been a public display of the proposals, perhaps even within the Hyperdome, and the Hyperdome management would be aware of what is going on; there would have been opportunities for public submissions. The proposal would have been publicly known.

760. He further referred to the effect of the introduction of paid parking in the Tuggeranong Town Centre and, in particular, at the Hyperdome.

761. His evidence was that the Town Centre before 2003 had free parking while other Canberra Shopping Centres had paid parking, providing the Hyperdome with an advantage to motorists. The Hyperdome, thus, "surrendered" its advantage over centres such as those at Belconnen, Woden and Civic. He noted, in particular, the period of free parking (initially two hours, later increased to three hours) on week days, which would have been sufficient for most shoppers.

762. He next discussed the pipe barriers installed at the time of the introduction of paid parking. He considered that the pipe barriers would not prevent pedestrian access because of the space between the end of the barrier and the structural column of the multi-storey car park and, indeed, on his site inspection, he observed that the space was used by numerous pedestrians.

763. He explained that a path adopted by pedestrians is largely determined by what he described as "the desire line" between the current location of the pedestrian and the person's destination. His experience was that pedestrians are generally reluctant to vary their travel paths significantly from the usual desire line and, as the pipe barrier did not completely obstruct that access, he believed it would have had no significant effect in deterring pedestrians, especially those who regularly entered the Hyperdome in this way, from entering and crossing the multi-storey car park to the Coles Door. Indeed, he felt that some pedestrians would feel more comfortable and even safer, following the exclusion of vehicles from the pedestrian walkway.

764. He noted that the concept of a desire line was well-known in traffic engineering and he referred to an official Austroads publication which made reference to the concept.

765. He made the point that the desire line was a line between where the pedestrian is and where the pedestrian wants to go and it would be appropriate externally to the shopping centre, that is prior to the entry point, but not necessarily within the shopping centre. That is to say, the desire line does not always terminate at a particular store but rather at the point of entry which the pedestrian can see from his or her point of departure. He noted that, once inside the shopping centre the desire line has less utility because shopping centres are designed so that pedestrians move through malls in particular directions once inside, limiting their choices for path of travel.

766. He re-iterated his view that observations have shown pedestrians engaging in "straight behaviour of patterns" and they will "cross informally wherever the desire line takes them". This is why traffic engineers importantly establish pedestrian facilities as close as possible to the recognised desire lines.

767. His view was that pedestrians do not like to go away from where they are heading and are reluctant to walk away and then come back, so the pedestrians on the south east side of the Hyperdome would be unlikely to walk up Athllon Drive to cross at the traffic signals across Athllon Drive but would cross at the intersection between Athllon Drive and Reed Street North if that was closer to their place of work and go across the car park. Mr Honkanen agreed with Mr Shoobridge on this point.

768. Mr Shoobridge commented on the pipe rails, explaining that they were necessary because even concrete kerbs were not sufficient to prevent vehicles trying to exit without paying for parking. The pipe rails were primarily, he said, for ensuring that vehicles remained within their appropriate area and the drivers paid for parking. It was noted that, apart from the small area for which the pipe rail upright goes onto the footpath, it does not extend for the majority of the footpath which is unimpeded.

769. Mr Shoobridge was then subject to cross-examination. Some of the cross-examination was, quite frankly, unhelpful.

770. Mr Shoobridge did not accept that signalised crossings were designed to encourage pedestrians to cross at the particular place but said that they were designed to provide a safe facility for pedestrians to cross at that point. That is to say, they are designed to provide a safe pedestrian crossing facility at that location. When it was suggested to him that they were designed to regulate the crossing of the road, his response was that it was very difficult to regulate pedestrians and pedestrian behaviour. That is likely to be a matter of common sense.

771. Mr Shoobridge made it clear under cross-examination that a desire line is a pedestrian engineering term not related to motor traffic and that it does not normally have application within a building because it loses its significance at the point of entry to a contained environment. He noted that the destination of a desire line did not necessarily have to be within sight and that, over time, the desire line would become part of a habit and subconsciously followed. Thus, there would have to be a

decision-making process for an individual to change their ordinary desire line. That might include, for example, a fence erected around a car park through which the pedestrian ordinarily walks.

772. He was asked about the creation of informal paths, one of which was shown in one of his photographs, and said that people would follow such paths generally and, if a paved path was provided in an appropriate place, they would use it, but, if the paved path was not in an appropriate place, they would establish a short cut that is likely to define where the desire line is. He agreed that such a path could be used to encourage people to use it and a lot of paths are put in as a safe facility for them in all weather conditions. He noted, however, that if the path is too far from the desire line or the path a person intends to take, the person will create their own path.

773. I found Mr Shoobridge's evidence cogent, soundly based and helpful. It seemed to me also to be consistent with the statistical evidence that was available from the evidence of Steven Beattie about the various door counts.

774. Mr Baker made one affidavit which was filed and read. To it was annexed his expert report. He also acknowledged that he was bound by the Expert Witness Code of Conduct. His Report included a detailed Curriculum Vitae.

775. His challenge to the concept of a "desire line" relied on by Mr Shoobridge suggested that it was inconsistent with "decades of consumer research", though it did seem to me that the two experts were discussing slightly different concepts. This was clearer in that Mr Baker set out, in his reference to consumer research, a series of questions, none of which were directed to the concept of which of a variety of entries available to access a shopping centre was chosen and why. The questions asked what the shopper did in the Centre and where they had come from, but not where they parked or otherwise arrived and how they entered, which was a critical issue in this matter.

776. He then discussed the distinction between "purpose-driven" shoppers and "recreational" shoppers. Again, this was very useful but seemed to miss the point.

777. Mr Baker further addressed the issue of office workers which was said to be a core part of the Giving & Living business customer base. He also addressed the purpose of the development of the Courtyard, which he suggested was to attract more foot traffic to the Target Mall. He considered that most shoppers were not single-minded as to their shop destination in the Hyperdome. Thus, he concluded, the vast majority of trips to large shopping centres like the Hyperdome will be by shoppers whose choice of initial entry will be "flexible, variable and easily subject to diversion". It did not seem to me that this followed at all. If the shopper was not purpose driven, he or she would not care which entry was used, and was likely to use the one they usually used and were in the habit of using.

778. Mr Baker's Report, however, suggested that the fallacy in the notion of a desire line was that shoppers were not always approaching a shopping trip with the knowledge that they are going to a specific store and when they arrive at the shopping centre will proceed directly to that store. That, he said, was not how the majority of shopping trips to large shopping centres like the Hyperdome actually work. Again, while this may be true, it did not address the point of where they would enter.

779. He indicated that shopping trips to shopping centres were typically divided into two types. The first were recreational shopping trips in which the shopper did not have a particular goal but was visiting the centre to browse, do general shopping, spend time with friends or for other non-specific reasons.

780. The other type was the "purpose-driven" trip in which the shopper had a particular goal in mind although not necessarily for visiting only one store.

781. He said that generally the Hyperdome would have a much higher percentage of recreational shoppers and, based on research, he said approximately of 80 per cent of all shopping trips to a centre like the Hyperdome would not be driven by the objective to visit a single specific store.

782. This seemed to miss the point of Mr Shoobridge's description of the desire line which, as he pointed out, was generally used up to the point of entry of the facility, not thereafter inside.

783. Mr Baker pointed out that much of his opinion depended on the reason a shopper had for being in the shopping centre but his evidence seemed to be more directed to the activities of pedestrians within the shopping centre rather than the method of arriving.

784. It did not seem to me that Mr Baker's research was inconsistent with Mr Shoobridge's description, which seemed convincing to me.

785. Mr Baker next indicated that, where office workers have access to good shopping facilities near their offices, the percentage of their non-grocery shopping carried out during work days was markedly higher than for office workers with access to poorer retail facilities. He also said that office workers spend a material amount on retail goods and services during work days.

786. He then analysed the sales decline for the Giving & Living store and identified a number of possible causes. His conclusion was that the only likely cause was a permanent loss of foot traffic as a result of a reconfiguration of the Hyperdome.

• the sales growth asymmetry heavily biased towards the Target Mall and against the Coles Mall that occurred after the upgrading of the Courtyard and the opening of the Lifestyle Centre, areas which were perfectly aligned with the crossing on Athllon Drive and the central spine of the shopping centre;

• the erection of pipe rails along the western side of the multi-storey car park; and

• the sign in the multi-storey car park that pointed pedestrians towards the Courtyard and therefore the Mall, rather than the Coles Door.

788. He was cross-examined on his Report and asked, in particular, about the installation of the high tensile dome in 2006. He responded that his understanding was that the works at the Courtyard and in the Lifestyle Centre were distributed over the period from late 2003 to 2006. This was correct but the high tensile dome was installed in 2006, replacing an existing covering of part of the Courtyard between the Lifestyle Centre and the Target Door.

789. He agreed that the upgrading of the Courtyard and the evolution of the Tuggeranong Markets into the Lifestyle Centre and then the consequent improvement of the stores in the Lifestyle Centre was one of the likely causes of the declining sales pattern at the Giving & Living store. He was, however, concerned that the data stream in terms of the sales pattern began too late to draw a quantifiable relationship between them. He was aware that the Lifestyle Centre had opened and was trading before BHPL bought the Giving & Living business. He agreed that a covered passageway established before September 2003 between the Lifestyle Centre and the Target Mall would have provided a degree of amenity. That, of course, already existed.

790. He agreed that, while workers were travelling across the open-air car parks, the sign at the northern wall of the multi-storey car park would have had little, if any, effect on the decision of the shopper to go to the Target Door or the Coles Door.

791. When it was put to him that, by the time a shopper was in the car park where they could see the sign, they would be "on a mission" to the Coles Door and he agreed, but did not know whether, therefore, the sign would have had a minimal effect on a hypothetical government worker. He later retracted that and said that he disagreed because it would, he said, depend on the familiarity of the shopper with the shopping centre and how often they went there. He agreed, however, that it was a bad sign.

792. Indeed, given that the evidence by the experts called by BHPL was that the pipe rails were a deterrence to pedestrians, it would seem that the sign would have no effect for the only people who could see it were those already in the multi-storey car park and they would have passed the barrier of the pipe and so be unlikely to follow the sign. Thus, as Mr Shoobridge pointed out, they would, on this argument, be effectively directed, in fact, to the obvious and unobstructed Coles Door that they could see and which itself had significant signs above it. In addition, the pipe rails would have an effect of directing those parking in the multi-storey car park to the Coles Door.

793. Mr Baker was also asked a number of questions about shoppers who enter the Coles Mall through the Coles travelator. Although reluctantly, he did agree that people would see the Giving & Living store and some people would see the whole of the store even though they were going to turn right into the Coles Mall to go to the Coles store.

794. Mr Baker also agreed that some people are creatures of habit and some are not. He agreed that, under certain circumstances, people might form a habit of parking in a particular place or walking through a particular entry to a shopping centre. He agreed that whether the person was a purpose driven shopper or a recreational shopper would not matter.

795. He was also asked about the pipe rails. His attention was directed towards the break in the pipe rails and, rather curiously, he said that he did not know whether the gap would have an effect to break a habit of the pedestrian intending to go to the Coles Door. This seemed to undermine his suggestion that the pipe rails could be a significant cause of the decline in foot traffic through the Coles Mall if he simply did not know whether the pipe rails would act in that way. Further, he agreed that it would be sound practice in a shopping mall to have a controlled area for pedestrians which is distinct from the area where the cars drive. He agreed that it would be prudent for pedestrians to follow through the gap in the pipe rails onto the pedestrian crossing.

796. Mr Baker was then asked some questions about the percentage of shoppers that were "purpose driven" and those who were recreational. Various figures were shown to him and, it seemed to me, there was a distinct lack of clarity between the meanings of these terms. At one stage, he suggested that the purpose was to go to a particular single store and drew some statistics which did not seem to be consistent or easily made consistent with the other statistics quoted.

797. Next, Mr Baker was asked about the quality of management of the Giving & Living business. He relied, in his Report, on the fact that the Manuka and Yarralumla stores were successful which, he said, showed that the management of the Giving & Living store was adequate.

798. His attention was then drawn to the fact that, of those two stores, one never traded at a profit and the other only had a year or two of marginal profits. He then suggested that profitability can be the result of a number of factors that have nothing to do with management. That seemed to me to undermine his suggestion that the performance of the Manuka and Yarralumla stores made it clear that the performance of the Giving & Living store could not be the result of poor or inadequate management.

799. He did point out that profitability is not necessarily the purpose of all retail stores pointing out that some are established to secure market share, with branding, with "the glory of the name" and so on. While that may, of course, be true, it seems to me that the comment was irrelevant to the purpose for which BHPL opened the stores, specifically to increase the profitability of the whole enterprise in which BHPL was engaged.

800. He suggested that the change of name did not, from the evidence, form a major issue, but he could not discount it.

801. He agreed that, given the relative decline in sales of the three other stores in the Coles Mall which also experienced a decline, it was possible that the Giving & Living store was "an outlier" and that it could suggest an explanation particular to that store rather than to foot traffic.

802. Mr Baker indicated at first that he agreed with the conclusions reached by Mr Stevens but that he might have "gotten to my own answer a little bit differently". Nevertheless, he said, in his Report, that Mr Stevens had "analysed the competition issue in depth and I agree with his findings". It is a little difficult to see how, with that comment, he could distance himself from Mr Stevens' methodology, particularly as he included no methodology of his own in his Report. That is, of course, ordinarily a requirement of an expert. See Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at 743-4; [85].

803. Mr Baker was then asked certain questions about the competitive effect of the Hot Dollar shop and some stores in the Lifestyle Centre which Mr Baker had identified as competitive.

804. Following the calculations in Mr Stevens' Report, it was suggested that 84 per cent of the reduction in sales of Giving & Living were attributable to those stores. Mr Baker disagreed but did not explain why he did so. He was asked whether he was genuinely of the opinion that the competitive effect of those stores was of no significance. He said that it was of significance but of limited significance because he was "looking for" something which was "a much greater factor" to explain the sales factor that he saw at the Giving & Living store. It is not clear why such substantial competition would not meet this test.

805. He was also asked about the termination of the experienced manager of the Giving & Living store and, again, his answers were entirely unclear to me. He suggested that part of being a good retailer is human relations and pointed out that you can make mistakes and still be successful. He pointed out that, in this case, there was one store that was experiencing "incredible volatility in sales" and other stores not experiencing that volatility, which suggested to him that there was something systemic or endemic in what was happening in that one store. He would not, however, embrace the possibility that the dismissal of an experienced manager who had been part of the previously successful store was part of that and descended into generalities which were of little assistance.

806. While, of course, a proper investigation of causality requires the elimination of possible causes, Mr Baker seemed to eliminate possible causes because they were not the desired cause. Thus, if foot traffic was a cause of declining sales, then the termination of the employment of an experienced manager would not be justified and, indeed, may exacerbate the decline, as other experts opined.

807. I was further not satisfied that the other stores were necessarily performing so well as to show that the manager of the Living & Giving store was not a cause of its sales decline. A careful and logical approach did not seem to have been adopted by Mr Baker in this consideration.

808. Despite his eminence and expertise, when it came to the specifics of his evidence, Mr Baker seemed dependent on opinions without a great deal of evidence or fact expressed to support them and relied assertions rather than argument or explanation.

809. Thus, I accepted Mr Shoobridge where he differed from Mr Baker and I do not accept Mr Baker's analysis of the cause of the decline in sales of the Giving & Living store.

810. Mr Honkanen made one affidavit which was filed and read. It principally attached his Report which included his Curriculum Vitae.

811. Mr Honkanen's Report addressed the cost of various of the works at the Hyperdome and then made some comment on the effects of the relevant works on access and foot traffic.

812. He costed the works which included awnings to the existing Hyperdome, retractable awnings to the Lifestyle Centre, toilets, a loading dock, wind break structures, low brick walls and additional car parks, in the sum of $1 292 347. This did not include goods and service tax, development approval fees, building approval fees or lease consolidation costs.

813. It was not immediately obvious as to the relevance of this evidence. It was said to address the allegation in Leda's defence that the works "were not extensive and not likely to and did not divert foot traffic away from the door nearest to the defendant's premises".

814. The cost of the works, in itself, is not particularly helpful to determine whether works have been significant without understanding a little more how that should be interpreted. The value of the whole building would be needed to act as a comparison and the relative size of the development work to the whole building would be important.

815. While strictly admissible, it seemed to me that this evidence was of little assistance.

816. Mr Honkanen then also made a number of comments about the effect of the various developments. It did not seem to me that these were other than opinions that any lay person could have held and it was difficult to identify expertise that was relevant or necessary for the opinions expressed, including challengeable opinions such as that the purpose of the installation of the pipe rails was not to stop vehicular traffic (despite this expressed view of Mr Hunter, an architect, and Mr Shoobridge, a traffic engineer) because they were built "in many places where vehicles cannot enter anyway, such as long footpaths separated from vehicular areas by kerbs". It seems Mr Honkanen has never seen a motor vehicle mount a kerb nor understood the steps that some people will take to avoid paying for parking. Mr Shoobridge's evidence was more persuasive.

817. Mr Honkanen, in cross-examination, agreed that it was suggested to him there was an over-arching plan to make the Target Door the dominant entry for foot traffic coming from the western side of the Hyperdome. He agreed and said that this approach was explained to him in discussions with Mr Giles, BHPL's solicitor, and Ms Hungerford.

818. He agreed that his instructions effectively required him to assume and adopt an opinion as to the effect of the Hyperdome works namely to be the cause of the decline of the foot traffic to the Giving & Living store. He understood that he was being asked to confirm the opinion held by Ms Hungerford and Mr Giles. He acknowledged that an opinion on this matter was within the area of expertise of retail economists and that he had no such expertise; his expertise was in building.

819. He agreed that some parts of his Report had been prepared in an area that was clearly within the area of retail economics but he explained that he attempted to prepare the Report from a builder's point of view.

820. He also agreed that he had no knowledge of what was in the minds of Leda's Board or staff at the time he wrote the Report.

821. Mr Honkanen regarded himself as a building consultant and agreed that he did not have direct expertise in matters of foot traffic in shopping centres but "only as far as it impacts on my own expertise in designing and construction". He agreed he did not have any expertise in traffic engineering or in pedestrian movements. He agreed that Mr Shoobridge would have greater expertise in relation to traffic engineering and pedestrian movements.

822. He agreed that the basis of his costs was the well-known publication, Rawlinsons Australian Construction Handbook (Rawlinsons Publishing, 26th ed, 2008) (Rawlinsons). He agreed that Rawlinsons gave prices for Adelaide, Brisbane, Melbourne, Perth and Sydney, but not Canberra, but he did not accept that this made calculations in reliance on it a "guesstimate". He suggested it was a reasonable estimate of costs at the time if applied with his experience.

823. He did not explain, in his Report, how he had calculated from the information in Rawlinsons to arrive at the rate he applied in the cost calculations.

824. In his Report, he opined that certain segments of the works would have a "detrimental impact on the volume of foot traffic through the Coles entrance in the period 2003 to 2006". He agreed that he did not know the volume of traffic during that period and he had no quantified information available that would assist in confirming his opinion. It was suggested to him that it was observation in the nature of speculation and he rejected that saying "that its observation and forming an opinion based on my experience on those observations". He said that the experience was as training in architecture and being involved in development of his own projects and other projects.

825. It did not seem to me, with respect, that Mr Honkanen's Report was of great assistance. It was difficult to see what expertise he brought to the opinions he expressed other than in relation to costs. I do not rely on his Report.

826. Accordingly, having considered the evidence of these experts, I am not satisfied that TTC/Leda intended, by any of the development work at the Hyperdome, to reduce the pedestrians who entered the Hyperdome by the Coles Door, nor do I consider that it had this effect to a significant degree.

827. So far as the installation of traffic signals at Athllon Drive were concerned, I accept that they may have caused some government employees in the Centrelink buildings to use that crossing in preference to the crossings available at the Reed Street North-Athllon Drive intersection. I accept, however, that this was a decision of the ACT Government for proper traffic reasons as explained by Mr Shoobridge and that it was not caused or contributed to by TTC/Leda.

828. I accept that the development of paid parking, with the associated installation of the pipe barriers, was relevant. It was, however, clear that notice had been given to tenants about that and it would have been possible for Ms Hungerford to have found out about the introduction of paid parking. The introduction of this, in itself, however, seems to have had minimal effect if, as BHPL submitted, a significant portion of her customers were government employees and paid parking would not have affected them. The generous initial free period would also have been unlikely to affect other shoppers. The effect of paid parking, also, would have been of short duration.

829. I accept that the pipe rails may have had some minimal impact on the number of government employees crossing the multi-storey car park to the Coles Door but given that it remained one of the two entry points with the highest traffic, this cannot have been a substantial cause of her sales downturn.

830. A number of other affidavits made by various deponents as to fact were read and the deponents not cross-examined.

831. Mr Wilson was retail manager of the Hyperdome from September 2010. Prior to that, he was a casual leasing executive from January to November 2009, with duties to manage the short-term leases in the common areas of the Hyperdome.

832. He had access to the records of Colonial First State Global Asset Management, the manager of the Hyperdome on behalf of TTC.

833. Mr Wilson made three affidavits. His affidavits were principally for the purpose of adducing into evidence various documents in connection with the proceedings. So far as they were relevant and it was necessary for these reasons, I have read not only the affidavits but the exhibits and annexures where it was relevant or helpful to the case. I read all to which reference was made by counsel for either party.

834. Annexed to his first affidavit was the Sublease together with a copy of the Memorandum of Provisions referred to in that Sublease and registered by Leda on 24 July 1998.

835. He also annexed a copy of the Transfer of the Sublease to BHPL which was registered on 4 November 2003 but operative from 1 September 2003, which is shown from the Consent to Assignment of Lease, a copy of which was also annexed. Mr Wilson's affidavit also annexed a copy of the Variation of Sublease which extended the term to 31 August 2009 and made variations of the fixed review dates and rental payable thereafter.

836. He annexed to his first affidavit a copy of the Bank Guarantee given by the NAB in favour of Leda at the request of BHPL, although it was only a copy and he indicated that the original was unable to be found in the Hyperdome business records.

837. Annexed to his first affidavit was the documentation surrounding the transfer of the Hyperdome from Leda to TTC which was by way of retirement of Leda as trustee of the Tuggeranong Town Centre Trust Deed and the appointment of TTC in its stead.

838. TTC then appointed CPT Custodian Pty Ltd, trading as "Centro Properties Group", to manage the Hyperdome. A copy of a letter dated 8 December 2005 to Ms Hungerford advising her of the accession of Centro as the manager of the Hyperdome and a further letter requiring her to pay rent to Centro Properties Group were annexed to Mr Wilson's first affidavit.

839. Annexed to the first affidavit were letters to BHPL dated respectively 28 August 2004, 29 August 2005, 11 September 2006 and 13 August 2007 advising of the increase in base rent in each occasion on 1 September of the relevant year.

840. Also annexed to Mr Wilson's first affidavit were copies of approvals or other documentation showing rental subsidies granted to BHPL as follows:

841. On 28 December 2007, however, Mr Lord sent to BHPL an email, a copy of which was annexed to Mr Wilson's first affidavit, advising that the 2007 rent subsidy would not be applied because the account was in arrears.

842. Mr Wilson's first affidavit annexed copies of letters showing estimated outgoings for the financial years commencing 1 July 2004, 1 July 2005, 1 July 2006, and 1 July 2007, setting out the tenant's share of the outgoings in each case.

843. Also annexed were notices showing adjustments to the share of actual outgoings following auditing for the years commencing 1 July 2003, 1 July 2004, 1 July 2005, and 1 July 2006.

844. Mr Wilson's first affidavit described the provision of invoices and statements of account issued to BHPL and copies of them were annexed.

845. Mr Wilson annexed to his first affidavit a copy of the letter dated 7 December 2007 in which BHPL advised TTC of its intention to vacate the shop at the end of January 2008 and he deposed that the premises were vacated by BHPL on 31 January 2008.

846. Mr Wilson's affidavit set out calculations of rent, outgoings and promotional levies with respect to the 2007 rent subsidy but, in the circumstances, I do not need to consider that further. He annexed a summary of the amounts outstanding to TTC from BHPL at the date of abandonment of the Premises. That showed an amount of $21 404.77 owing and he further deposed that no payment has been made or credit accrued which would reduce that amount owing since the date of that summary, namely 12 February 2008.

847. Mr Wilson's first affidavit also annexed copies of documents relating to outgoings to which I have already referred.

848. Mr Wilson's first affidavit annexed a copy of a Lease between TTC and Tybar Pty Ltd of 27 June 2008 when that company entered into a sublease of the Premises abandoned by BHPL. Tybar Pty Ltd commenced occupation of the Premises on 1 June 2008 for a period of seven years.

849. As a result, Mr Wilson calculated the amount of lost rent, outgoings and promotional levies for the period from the abandonment of the premises to the re-leasing of them in the sum of $55 170.24, though an amount of $2329.24 had to be deducted from that in respect of the promotional levies leaving an amount of $52 841.

850. A further affidavit by Mr Wilson attached documents relating to the occupation of the business opposite Giving & Living. Originally it was occupied by Go-Lo but Mr Wilson's evidence was that, in or around January 2003, the business re-located to the Lifestyle Centre leaving the shop (Shop 190) vacant.

851. Around April 2003, Leda commenced negotiations with Long Champ Enterprises Pty Ltd trading as "Hot Dollar Tuggeranong" for the lease the shop, and which lease was executed on 15 July 2003, and Hot Dollar commenced to trade from the premises formerly occupied by Go-Lo on or about 1 August 2003.

852. Mr Wilson's second affidavit showed that in March 2004, Leda was advised that the Hot Dollar Tuggeranong business had been sold to Hot Dollar Australia (Canberra) Pty Ltd and an Assignment of Lease was sought. That assignment was approved by Leda on 8 March 2004 and the relevant assignment documents were issued to Hot Dollar Australia on 29 March 2004.

853. Notwithstanding apparently non-execution of the relevant documents and non-fulfilment of certain terms and conditions, including payment of arrears of rent and provision of a bank guarantee, Hot Dollar Australia entered into occupation.

854. As a result, Leda gave Long Champ Enterprises Pty Ltd a Notice of Termination and on 10 November 2004 recovered possession of the premises.

855. A new Lease was sent to Hot Dollar (Australia) Pty Ltd for the balance of the term and that lease was executed on or around 16 November 2004. On 18 November 2004 Hot Dollars (Australia) Pty Ltd re-commenced to trade from those premises.

856. A third affidavit from Mr Wilson exhibited monthly sales turnover reports prepared by the managing agent of the Hyperdome, detailing the turnover of shops within the Hyperdome, compiled from figures reported to the Hyperdome Centre Management by those shops.

857. Those reports included sales turnover in the month of the report, sales turnover figures for the same month in the previous year, a percentage change year-to-year, a figure for the moving annual turnover (MAT) in the month of the report, and figure for MAT for the same month in the previous year.

858. These reports were the basis for a number of the calculations made by the experts.

859. An affidavit of James Hartley, solicitor for Leda and TTC, was admitted and read so far as it annexed a letter from the NAB. That letter was admitted not for the truth of what it said but for the fact that the bank stated that it held the opinion that the Bank Guarantee it issued at the request of BHPL was valid and enforceable. Mr Hartley was not cross-examined.

860. BHPL conducted three counts of foot traffic and affidavits from two persons who conducted the counts were read. Neither of the deponents were cross-examined.

861. The first survey involved two of the counts on 9 October 2009 when Rachel Newton counted persons entering the Target Door and Claire Stacey counted shoppers entering the Coles Door. Both made affidavits.

862. They identified those who were wearing identification tags as government employees. That must, of course, be a minimum as some government employees may not wear their tags out or may have them where they cannot obviously be seen. It is not clear, however, which non-government employees wore such tags; there was no evidence about that.

864. Later, on 8 April 2013, Benjamin Grima counted persons entering the Coles Mall either from the Coles Door or the Coles travelator between approximately 10:07am and 3:10 pm. He also made an affidavit. His observations were also recorded and the results were as follows:

Right turn from Coles Travelator towards Coles & K Mart

865. An affidavit of Timothy Heaton was also read. He was a Registered Valuer and a Certified Practising Valuer and he was asked to assess the market rent for the property. He assessed the market rent compared with the lease rent:

867. Two affidavits of Phillip Walter Roberts were read. He was not cross-examined.

868. Mr Roberts was, in June 2003, employed as a business sales consultant for LJ Hooker Business Sales Division at Woden when Ms Hungerford was consulting to his employer and assisting with preparation of businesses for sale.

869. Mr Roberts deposed that Ms Hungerford had told him that she would be interested in investing in a good business if one should become available. In about June 2003, he referred her to the Giving & Living business. She said that she was familiar with that business, which he described as "attractively presented". The staff were busy with customers on the day of his visit and the foot traffic in the Coles Mall was constant and busy. He visited on at least six occasions. He was told by the owner, Mr D'Amico, that a lot of his customers came from government offices across Athllon Drive and that the traffic was particularly heavy between 11:00am to 3:00pm. Mr Roberts said he saw this volume of traffic for himself and that it would have supported that shop.

870. He gave Ms Hungerford the marketing information that he had about the shop and Ms Hungerford told him later that she had visited it regularly. In due course, he arranged the sale of the business to BHPL.

871. He prepared a further affidavit which set out some information about a business in which he was involved with an invitation to Ms Hungerford invest. The invitation was made in early August 2004.

872. Ms Hungerford said that she was not interested at the present time because she was opening the additional stores in Manuka and Yarralumla.

873. John Randall was a professional engineer and Managing Director of Indesco Pty Ltd, formerly Bill Guy and Partners Pty Ltd. He held a Bachelor's Degree in Civil Engineering with Honours and was a Chartered Professional Engineer. He was a member of Engineers Australia, Consult Australia, and the Australian Water Association. He was a Licensed Builder in the ACT and a Registered Professional Engineer in Queensland. He had 30 years experience in the management of multidisciplinary projects, infrastructure design, and construction contract management.

874. He filed an affidavit annexing various reports but was not cross-examined on it or its contents.

875. He prepared a Draft Traffic Impact Statement for the Hyperdome in or around March 2005 in relation to a proposed development of a two-storey building with retail shops in from the Hyperdome's main entrance off Anketell Street. A copy of the Report was annexed to his affidavit.

876. In order to prepare his Report, he obtained a copy of the ACT Parking Survey 2001 and he also arranged for his employers to undertake a count of cars in the Hyperdome car park.

- Traffic volumes will increase on the streets around the Hyperdome. However, the total traffic volumes are still within the traffic capacities of the street system.

- 99 parking spaces are required based on the proposed development of a restaurant, shops and offices. The parking survey indicates that there are 583 spare parking spaces available to accommodate the 99 vehicles generated by the proposed development.

- The parking survey indicates that the highest usage occurs on Saturday and the lowest on Friday at both the Hyperdome and the adjacent Town Centre parking facilities.

- Since pay parking was applied to the Tuggeranong Town Centre (TTC), public parking usage in the TTC has reduced between 2001 and 2005. However, the parking usage at the Hyperdome carpark has increased.

- According to the existing building usage at the Hyperdome, 2339 parking spaces are required, marginally more than the existing 2228 parking spaces at the Hyperdome.

878. He annexed to his affidavit a copy of the ACT Parking Survey of 2001 for the Tuggeranong Town Centre. It showed the Hyperdome multi-storey car park had a 56 per cent occupancy and the car parks associated with the Tuggeranong markets had a 64 per cent (south) and 69 per cent (north) occupancy.

879. He annexed to his affidavit a copy of the results of the survey his employers had undertaken. These showed a 61 per cent occupancy of the Hyperdome multi-storey car park and of the other two car parks a 37 per cent (south) and 52 per cent (north) occupancy. It showed that parking demand reduced generally in the Tuggeranong Town Centre from 67 per cent occupancy to 58 per cent occupancy between 2001 and 2005.

880. Steven Beattie filed two affidavits. He was, at the time, Property Manager at the Canberra Airport, but between 1987 and 2009, he held the position of Operations Manager at the Hyperdome employed by Leda and then by TTC. He produced a number of documents.

881. He described the history of the Centre. It had opened in 1987 and, since then, there had been three major extensions in 1991, 1999 and 2006. Since the 1991 and 1999 extensions, he described the following works as having been carried out:

(a) in the area between the Lifestyle Centre and the Target Mall, seventeen new car parks, toilets, fixed awnings, a loading dock and a low brick wall installed in 2003;

(b) wind breaks and a tensile canopy were installed in that area in 2005;

(c) changes in parking arrangements were made in January/February 2004; and

(d) in 2008 a pay on exit [sic] was removed and payment stations were installed.

882. He described the extensions in 1991 and 1999 and the installations in 2003. He said that, during those latter extensions, the construction work did not block the Coles Door to the Hyperdome.

883. He also gave some history of the introduction of paid parking to the Hyperdome. He noted that, on 12 November 2002, the ACT Government advised Leda that it intended to install paid parking in the Tuggeranong Town Centre by July 2003. Accordingly, Leda requested a proposal to design paid parking for its car parks, including the

884. The introduction of paid parking involved the installation of a ticket dispenser and boom gate so that cars could only move from the Reed-Athllon car park to the multi-storey car park through a particular entry. Prior to that cars could move between the two car parks freely. There was an occasion in 2008 when the boom gate and ticket machines were vandalised.

885. Mr Beattie stated that the only reason paid parking was introduced was to ensure that the there would be parking available for customers of the Hyperdome and to prevent public servants from parking there once the ACT introduced paid parking. The pricing of parking matched what was being charged at the Woden Plaza.

886. He referred to the installation of traffic lights across Athllon Drive and noted that Leda did not have any involvement in the construction of that crossing, which was carried out by the ACT Government.

887. He set out some evidence about door counting software. He noted that foot traffic figures were stored in a database but there was no information prior to 2005.

888. He also referred to the external travelator to the north of the Coles Door, which was first installed in 2000. This was the travelator from the upper storeys of the multi-storey car park and was not the Coles Mall travelator. He said it was first installed in 2000 and was covered except for the top landing. It was only turned off if wet weather created a slipping problem. Customers and staff could still use the travelator but it was simply not moving. Later the upper landing was covered by a roof and airlock, but there were still some occurrences of people slipping in wet weather as they walked water in on their feet and this necessitated the down travelator being closed during wet weather with a mat being rolled out. After about 12 months, sometime in 2005, the Hyperdome engaged a contractor to treat that travelator with a rubber grip product which negated the need to turn the travelator off during wet weather.

889. Mr Beattie pointed out that there was, in the ground floor level of the multi-storey car park, not only signage directing people to the Courtyard and so to the Target Door, but also large signs directing them to Coles and K-Mart through the Coles Door.

890. In his second affidavit, he clarified some errors in his earlier affidavit which I do not need to address.

891. He gave specific evidence about the pipe rails that were installed and said that the installation was a result of negotiations between himself, in his capacity as Operations Manager, and S & B Parking Services, which completed the modification to the car parks.

892. He had experience in 1982 working in the Woden Plaza as Manager of Pay Parking for Lend Lease Parking, where Woden Plaza already had paid parking. It was his experience that people would regularly drive over areas that were not intended for vehicular access in order to avoid paying for parking. He said that he commonly, as often as weekly, observe people, "driving over kerbs, garden beds and pathways in order to avoid paying for parking".

893. He explained that he was strongly of the view that if pipe rails were not erected next to the kerbs the same thing, that is people avoiding paying for parking, would happen at the Hyperdome. There was no other reason for installing the pipe rails and he did not intend the hoops to have the effect of diverting pedestrian traffic.

895. The context in which any liability of TTC to BHPL is to be considered is that Ms Hungerford, on behalf of BHPL was, in preparation for the purchase of the Giving & Living store at the Tuggeranong Hyperdome, conducting what became known in the proceedings as a due diligence process.

896. Ms Hungerford was, it was said, an astute business woman. She certainly had accumulated substantial wealth over her then working life which, by July 2003 amounted approximately to $3 million in total in savings, real estate, and her superannuation accumulation.

897. Ms Hungerford was, at the time of purchasing the business, a business consultant. She said that she had "some experience in retail" and was undertaking some business consulting through a real estate agency. She had owned a business in Sydney, though on the Tenancy Application Form she submitted to Leda, she said that she had not "had a retail business".

898. The example of business consulting in the retail sector on which she relied was a project she undertook in connection with a discount store on the South Coast of NSW. A plan she prepared for the business was admitted into evidence. While it appeared to be a comprehensive review, a careful reading of it did not disclose that Ms Hungerford had any direct expertise in the retail industry. While there were brief references to the key issues such as stock, layout of premises and advertising, there was little indication of the particular expertise that Ms Hungerford would bring to the operation of a business in these areas, apart from facilitating meetings of staff to discuss such matters, preparing procedures and an induction manual, and documenting the results of staff meetings. It did not disclose any particular expertise that Ms Hungerford had in the actual conduct of a retail business or suggest she had the capacity to advise on matters of substance about the retail operation of the business, such as stock profile, marketing strategy, retail economics or the like. The plan showed a more generic contribution through the establishment of systems, the facilitation of meetings and the recording of the results of those meetings. There can be no doubt the value of such work, but the material did not show any particular skill in the retail sector more specifically or substantively.

899. The work she did for the real estate agency she described as assisting the agency to prepare small retail operations for sale. She described the work in her evidence as follows:

What did that involve, please? --- As far as the other businesses were concerned, they were generally small retail outlets or operations that basically I did a make over for selling of the business to make them saleable.

I don't understand that term 'make over.' Others might. What do you mean by that? --- To have the business operating correctly with usual business standards regarding their operation and their staff and management.

And what expertise did you have in regard to that activity? --- I had experience from many years of consulting in my financial planning practice.

900. Again, the work seemed directed towards ensuring that financial systems and operational standards were adequate rather than substantive retail matters. Indeed, she agreed that this "wasn't so much changing the business as changing the cosmetics for sale".

901. In this case, that may not have been such an obvious problem, for Ms Hungerford was intending to purchase the business in reality as a managed investment rather than one where she was to be involved in the day-to-day business, though she ultimately had to do so. It was, she said, a business that was structured with stock and staff and going to run as it had been running.

902. Indeed, her evidence was that, apart from the improvement of some procedures, such as the introduction of computerisation of the store's processes, she gave no evidence of any intention to change the operation or practices of the store. She may well have had that knowledge, experience and skill, despite no direct retail experience or skill in the substantive operation of a retail business, though it was not apparent. She did not seek advice or assistance from any retail consultant.

903. The due diligence conducted by Ms Hungerford included the following elements. She attended the Hyperdome on a number of occasions. On these visits, she inspected the Giving & Living store, inspected stock, spoke to staff, spoke to the owner, and spoke to the Hyperdome management.

904. Initially, her evidence was that she attended the Hyperdome once a week from 14 July to 1 September 2003. It subsequently became clear, however, that she had, in fact, been overseas from 25 July to 11 August 2003, so that the inspections could only have been from 14 to 24 July 2003 and after 12 August 2003, though the sale agreement had been executed on 21 August 2003. She actually said a number of times that she had visited the store about six times.

905. On a number of these visits, she sat outside the shop watching the passing traffic. She was, in particular, looking at the foot traffic. She also walked around the Hyperdome, seeing how many people were in the Coles Mall and the Target Mall.

906. When sitting outside the Giving & Living store, she looked at how many people went into the store and "what type of customers" they were. I was not clear about how long she did this on each occasion or when she did it. She said she did it at different times, though she seemed to suggest that it was in late morning. She said she established about 25 people passing the shop per minute. She said she saw queues at the shop counter, people being well served and noticed that a number of them had white tags on lanyards around their necks, which she concluded were being worn by public servants. She gave no evidence of the numbers or percentage of people she considered were public servants. She also noticed, though presumably not from her position in the Coles Mall outside the shop, people coming from offices over the road, walking across the car park into the Coles Door. She also noticed people making lay-bys.

907. This was obviously helpful to her assessment of the circumstances of the store, though it was hardly a comprehensive assessment or a very prudent due diligence.

908. Ms Hungerford was confident that the foot traffic in the Coles Mall would not fall. The only explained source of her confidence was her reliance on the developments (presumably office buildings) that she said she saw in the areas surrounding the Hyperdome.

909. In this respect, however, her due diligence, on which she relied, must be described as superficial and very limited. She said that she saw developments "about to happen" in the areas surrounding the Hyperdome. She particularly relied on the proposed construction of what became the Caroline Chisholm public service building that was one of the significant buildings to be constructed in the area.

910. Her evidence of the information about these developments was surprisingly limited. Her evidence was that she "drove past them, [and] looked at them". There was no evidence of any other inquiry. Indeed, she said that she did not make any inquiries, though she accepted that it would have been prudent to do so. She said that she did not even look at any noticeboards or signs on the sites that may have identified when the buildings were to be opened.

911. She obviously had contact with a local real estate agency and she gave no evidence of even asking the sales staff there, who would, one would think, have had some more detailed and expert knowledge of the developments or, at the very least, some knowledge of where or from whom reliable information could have been obtained.

912. Matters which she could have ascertained by inquiry, but did not, included the matter of the introduction of paid parking and the installation of the pedestrian traffic signals across Athllon Drive. Both of these were matters of public record before BHPL purchased the Giving & Living business. It was even referred to in a tenants' newsletter published by the Hyperdome in June 2003, to which I have referred above (at [431]). It appears that Ms Hungerford did not ask Mr D'Amico about any such matters, though she may have had to treat his responses with caution, he being the director of the seller of the business. She appears simply not to have made these clearly relevant inquiries.

913. Despite the lack of such prudence, Ms Hungerford then prepared a business plan which seemed largely, if not entirely, based on the increased pedestrian traffic past the Giving & Living store which she considered would come from the developments and would subsequently increase her sales by 10 per cent per annum.

914. It is unsurprising, then, that her predictions were wildly optimistic when the Caroline Chisholm building, on which she principally relied to increase her customers, did not open until 2008. Despite the building and the proposed increase in customers and, therefore, sales, from 2004, she had in actual fact no idea when public servants would start occupying the Caroline Chisholm building. She said that she thought it may be "in the next few years". She did not think it would be, as it was, as late as 2007/08 but did not seem surprised by that date when it was mentioned while she was giving her evidence.

915. I note, too, that her driving around the area did not draw to her attention the fact that the traffic signals at the pedestrian crossing in Athllon Drive, opposite the Lifestyle Centre leading to its entrance, were then being erected and were operational prior to her purchase of the Giving & Living business.

916. Ms Hungerford's due diligence included, as an important part, having her accountant peruse and advise her on the financial aspects of the business and she sent him the relevant details supplied by Mr D'Amico for his advice. Her accountant approved "the financials" and this effectively gave her the green light to proceed.

917. The final matters, and on which she relied heavily, were the inquiries she made of the Hyperdome Centre Management. She said that she met Mr Beirne on 10 July 2003 The conversation is set out above (at [235]-[244]).

918. While Ms Hungerford was challenged on her memory of this meeting, particularly suggesting that much of her evidence was, in fact, reconstruction, it was not suggested to her that she did not undertake a due diligence process of sorts. For example, it was not suggested to her that she had not spent some time looking at the foot traffic in the Coles Mall, though she was successfully challenged on her exaggerated claims of how many times she had done this.

919. Mr Beirne unsurprisingly did not recall much of the events involving him of which Ms Hungerford gave evidence. He did give evidence of the standard procedure he says that he would have followed in his dealings with Ms Hungerford. These standard procedures and his training made it unlikely that he would have responded in the way that Ms Hungerford had suggested he did in her evidence.

920. He said that he was not aware at the time that the conversation that he had with Ms Hungerford was part of her due diligence. Accordingly, he had not, thereby, imposed on him the duties that he would have had because of the obvious reliance that he would have then known Ms Hungerford was placing on his responses to her, such as to give rise to a duty of care at law. While that would prevent TTC/Leda being liable for negligent misrepresentation, there is no requirement for proof of the existence of a duty of care in the claim actually made by BHPL under the Trade Practices Act and the Fair Trading Act. See Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 at 197.

921. Mr Beirne, however, was aware of the developments proposed for the Hyperdome to establish paid parking and that some of those developments may have an impact of the foot traffic through the Coles Door as I have noted earlier (at [472]-[474]). He further knew of the proposed upgrade to the Courtyard and that this may have had an effect on the number of people entering through the Coles Door as I have also noted above (at [475]-[479]).

922. Mr Beirne acknowledged that the installation of pipe rails consequent upon the introduction of paid parking would have had some effect on pedestrians moving within the general area leading into the Coles Door. His evidence about that in the context of his conversation with Ms Hungerford was: