That contention in the Statement of Claim was not supported by any specific affidavit evidence, or oral evidence, at the trial. Rather, Mr Vella's specific evidence about reliance on Wah Lai's representation is that which I have set out at para [176] above.
202 While reliance on representations can sometimes be inferred (Gould v Vaggelas (1985) 157 CLR 215; Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242), I am not prepared to make the inference in the present case that Mr Vella relied on Wah Lai's representation in the ways pleaded. The fact that Mr Vella could have given evidence of reliance, in the ways pleaded, but did not, is itself a relevant matter. The case presented in the pleading is inconsistent with Mr Vella's evidence that it was only after he had been ejected from the Tavern that he found out that the Transfer of Lease had never been stamped, nor registered. The fact that I have not accepted that evidence on his part does not detract from the fact that the pleaded case on reliance is inconsistent with his own evidence. Further, by the time Mr Vella's application for a liquor licence was running into trouble with the licensing police, his solicitors were investigating ways of getting out of the Lease which they thought existed, and found out that the transfer of the Lease had not been stamped or registered (paras [29] - [31] above). At that stage of events, it may have seemed in Mr Vella's interest to do nothing to bind him to the Lease. It has not been shown that the question of taking the steps necessary to complete the proper assignment of the Lease ever arose again. For all these reasons, I am not prepared to infer that the pleaded case for reliance has been made out.
203 It is alleged that the making of the representation is misleading and deceptive, or likely to misled or deceive, in contravention of section 52 Trade Practices Act 1974 (Cth). Because the Trade Practices Act claim was touched on only very briefly in submissions, and in any event the reliance element of it fails, I will deal only briefly with the remaining elements of it.
204 The representation pleaded was a representation about the future. Such a representation can be misleading or deceptive if the person making it does not have reasonable grounds for doing so (section 51A Trade Practices Act 1974 (Cth)). When Mr Vella was first in occupation, Wah Lai had no reason to believe that the assignment of lease would not go through in the conventional conveyancing way, by being perfected by registration. Even when Wah Lai, through its solicitor, found out that the transfer had not become registered, for a time it continued to intend to treat Mr Vella as a tenant. While it continued to have that intention it had reasonable grounds for making the representation. Once the decision was taken, at the dinner meeting on 6 February 1996, to recover possession, Wah Lai retracted its representation, through Mr Touma, in the "You've Got No Lease" meeting. If Mr Vella wanted to make a case that, at least during a period between the dinner meeting and the date of the "You've Got No Lease" meeting, Wah Lai continued to represent that Mr Vella was in the position of lessee under the Lease, he would need to prove (a) that there was a period of time between those two meetings, and (b) that during that time Wah Lai made the representation. He has proved neither thing. I do not find that, at the time it was made, the representation sued on was misleading or deceptive, or likely to mislead or deceive.
205 As the pleaded case of reliance fails, the claim to have suffered loss and damage necessarily also fails.
206 Wah Lai pleaded a limitation defence to this Trade Practices Act 1974 (Cth) claim. As the claim would fail if it were to have been brought within time, I need not consider that defence.
Implied Terms in Rent Setoff Agreement
207 In reply to an allegation which Wah Lai made in its pleading of entitlement to take possession of the Tavern by reason of Mr Vella's breach of covenants in the Lease to pay rent and outgoings, Mr Vella pleaded that it was an implied term of the rent setoff agreement that:
(i) the amount to be set off against Mr Vella's arrears in rent was to be determined by Wah Lai and Mr Vella upon completion of the Fire Safety Works; and
(ii) Wah Lai would not exercise any right, including any right pursuant to clause 11(i) of the Lease, to repossess the Tavern as a consequence of any part of the rental being unpaid prior to completion of the Fire Safety Works and the determination by Wah Lai and Mr Vella of the amount of any rent set-off.
208 I have already rejected evidence from Mr Vella that clause (i) of this alleged implied term had been expressly agreed to by Mr Touma in early 1996 (at para [103] above). I will not pause to examine whether the implication which has been pleaded should be found to exist in the rental setoff agreement. Even assuming, without deciding, that such an implication should be made, it would lead to a conclusion that Wah Lai acted in breach of its contract with Mr Vella in re-entering possession when it did. Mr Vella does not claim any damages for that breach of contract. Rather, he submits that the effect was that he was not, at the date of his eviction, in breach of the covenant to pay rent on the Lease and could not be so found until such point of time as the Fire Safety Works had been completed, and the parties had had an opportunity to sit down and work out who owes what. In circumstances where, at the time of the eviction, the Lease did not operate as between Mr Vella and Wah Lai, this submission need not be considered further.
Mr Vella's Unconscionable Conduct Claim
209 A significant factual element in this claim was an allegation (which had not been pleaded, but was nonetheless litigated without objection) that Mr Reuben had deliberately kept from Mr Vella and Mr Vella's solicitor, knowledge that an order for possession was being sought. I do not accept that Mr Reuben did any such thing.
210 Mr Reuben was aware that Wah Lai had consented to the transfer of the Lease from Buddies to Mr Vella, that Mr Vella had some sort of physical presence at the premises, that Mr Vella had in some fashion been responsible for some amounts of rent and outgoings being paid, that Mr Touma had been making demands on Mr Vella to pay arrears of rent and outgoings, (by late 1995) that Craftmill was in occupation of the Tavern, and that Mr Roxburgh had proposed to name Mr Vella as a defendant in proceedings for recovery of arrears of rent. However, he also knew that the Transfer of Lease had not been registered, and that the documents lodged at the Licensing Court showed Mr Vella as having no ongoing connection with the business being operated at the Tavern. He had no reason to believe the documents lodged at the Licensing Court were inaccurate. The conclusion that he reached was that Buddies was still, as a matter of law, the lessee, and that the premises had come to be occupied by Ms Gleeson, under a sub-lease which Buddies had granted to Craftmill. If one confined one's attention to the Land Titles Office searches, and the results of searches at the Licensing Court (which would disclose the information set out at para [45] above), that would have been a correct conclusion to reach. Mr Reuben did not address his mind to the further question of whether Mr Vella had any rights against Wah Lai arising through estoppel or under section 127 Conveyancing Act 1919. Even though Mr Reuben knew of the various matters I have itemised about Mr Vella having a role to play in connection with the Tavern, I do not conclude that he was of the view that Mr Vella was entitled to separate, personal notice of the bringing of the Possession Proceedings. Mr Reuben had, in November 1995, caused a Notice of Claim for Possession and the Statement of Claim in the Possession Proceedings to be served at the Tavern, addressed to the person who he understood to be the occupier. He had received from Mr Ramshaw the Affidavit of Service which deposed to those documents having been correctly served. He had no reason to believe that the documents had not reached their intended recipient.
211 I accept that Mr Reuben was not forcing the pace or taking the initiative in the negotiation which Mr Kirkpatrick had initiated with him. He had discussed with Mr Kirkpatrick the prospect of Mr Vella paying off the balance of the outstanding rent in exchange for a new lease over the property. However, in his conversation with Mr Kirkpatrick on 8 March 1996 (paras [115] - [116] above) he said that the way forward for that proposal was for Mr Kirkpatrick to appoint a quantity surveyor. Notwithstanding Mr Reuben's warning that he would have to act quickly if that way forward was to be implemented, Mr Kirkpatrick did not appoint the quantity surveyor until early May (para [131] above). Hence, the negotiations for a new lease did not advance, and it was while those negotiations were stalled that the order for possession was obtained. Mr Reuben had no reason to hurry those negotiations up, because his client would have preferred to obtain possession of the premises. However, Mr Reuben had no reason to believe that Mr Vella did not know about the Possession Proceedings - indeed, if the system for delivery of mail within the Tavern had been better, it was highly likely that he would have known about the proceedings, through the service of the Notice of Claim for Possession, even though it was not addressed to him. Mr Reuben made no secret, with Mr Kirkpatrick, of the fact that there were proceedings on foot in the Supreme Court, relating to the premises, even if he does not now recall whether he specifically told Mr Kirkpatrick that the proceedings were ones for possession. When Mr Vella had proved to be an unreliable payer, and when he had no lease, the taking of possession proceedings (against whoever they should properly be taken) is far from an unusual or surprising thing for a landlord to do. Mr Kirkpatrick seems to have shown neither surprise nor curiosity on being told that there were proceedings on foot in the Supreme Court (whatever they might have been for). The basis on which his discussions with Mr Reuben proceeded was that what Mr Vella wanted was a new lease - not that Mr Vella had substantial existing rights as a tenant.
212 In all these circumstances, Mr Reuben was not deliberately keeping from Mr Vella, or Mr Vella's solicitor, the fact that proceedings for possession were on foot relating to the Tavern.
213 The first legal basis upon which Mr Vella brings this unconscionability claim is that by obtaining possession in the circumstances which it did, whereby Mr Vella was not aware that possession was being sought, Wah Lai was exercising legal rights unconscionably. Reference was made to Legione v Hateley (1983) 152 CLR 406 at 444, Foran v Wight (1989) 168 CLR 385 at 394-5, Australian Competition and Consumer Commission v Samton Holdings Pty Ltd (2002) 117 FCR 301 at 317-8, and Tanwar Enterprises Pty Ltd v Cauchi (2003) 201 ALR 359. I do not accept, on the facts, the contention that there is unconscionability arising from Wah Lai (through its agent Mr Reuben) knowing that Mr Vella was ignorant of the Possession Proceedings. This is because I do not accept its factual basis, that Mr Reuben knew Mr Vella was ignorant of the Possession Proceedings.
214 Mr Vella submits that even if Wah Lai did not act with knowledge of Mr Vella's ignorance, there would still be an equity of accident or surprise established, which would make it inequitable for Wah Lai to obtain possession.
215 I will not pause to examine whether these contentions are correct. The remedy which Mr Vella claims is equitable compensation, which would put him in the position he would have been in if the unconscientious behaviour had not occurred. Neither shall I pause to examine whether equitable compensation is available for a breach of equitable duty of the type alleged. If Mr Vella had been informed of the Possession Proceedings, before the eviction took place, I am not persuaded he would have been any better off. After the "You've Got No Lease", meeting he could not assert that he had, by estoppel, rights analogous to those conferred on the lessee under the Lease. If he had known about the Possession Proceedings, he would have been in a position to obtain an injunction preventing Wah Lai from ejecting him without one month's previous notice in writing. He has not established that, even if he had been able to obtain such an injunction, it would have resulted in him staying in the Tavern for any longer than he in fact stayed: cf the arguments considered at paras [189] - [190] above. Finally, even if obtaining such an injunction would have enabled him to stay longer in the Tavern than he in fact stayed, he has not proved that being deprived of that opportunity has caused him any loss for which he should be compensated: cf para [191] above. For these reasons, the unconscionable conduct claim fails.
Wah Lai's Unclean Hands Defence
216 Wah Lai pleaded a complex unclean hands defence to Mr Vella and Craftmill's claim based on Mr Vella's alleged rights as tenant. In circumstances where I have found that no case is made out for any such claim, it is unnecessary to consider this defence.
Mr Vella's Conversion Claim
217 Mr Vella purchased all manner of chattels for the Tavern - crockery and cutlery, cooking utensils, fridges and a freezer, a microwave oven, lengths of copper, gym equipment, office equipment, tools and furniture. When the possession order was executed Mr Vella was able to take away stock, and some of the chattels which he had in the hotel, but not all of them.
218 Mrs Chan's diary (which I accept is likely to be accurate) contains an entry for 14 May 1996 which, when translated, reads "at that time the occupant used large truck[s] to carry away the wine and the stock."
219 Mrs Chan's diary for 9 July 1996 records that she "made a call to a junk dealer, inviting him to the bar to have a look at the miscellaneous items. He only bought the fridge[s] and the television set[s]. He refused to take the furniture the bed[s] and the table[s]." There is no evidence of the price the junk dealer paid for the fridges and television sets.
220 Her diary entry of 10 July 1996 records that Mr Vella "requested us to return the beddings, old television set[s] and the fitness equipment". I accept her evidence that on that day Mr Vella removed from the Tavern a number of beds, a television set and an exercise machine. Her diary for 26 September 1996 records that Mr Vella "again demanded to have fitness equipment back". I accept her evidence that on that day Mr Vella removed the remainder of his gym equipment and some other personal property.
221 Some property which Mr Vella had left in the Tavern was removed by cleaners employed by Colliers Jardine (the real estate agents who Wah Lai had instructed to act on the sale of the Tavern site) in early 1999. Mrs Chan described the removal as of "rubbish", which she explained was the "broken tables and the broken cupboards, those things", and "broken tables, broken chairs".
222 Between the time that the eviction occurred on 14 May 1996, and the time the property was sold in mid 1999, it was broken into, and to some extent vandalised. It is not possible to make a finding that any particular items of property which Mr Vella left in the premises were ones which the cleaners employed by Colliers Jardine threw out.
223 Even so, for Wah Lai to take possession of the premises on 14 May 1996, at a time when those premises contained Mr Vella's chattels, and not give him the opportunity to get those chattels out, amounts to a conversion of them.
224 By letter dated 31 July 1998 from Mr Vella's then solicitors, Stewart Levitt & Company, to Wah Lai's solicitors, a request was made for Wah Lai to account for Mr Vella's possessions which were no longer to be found on the premises.
225 Though Mr Vella has proved what the chattels other than the AADs cost when new, he has not proved precisely which ones he was able to retrieve and which he has not. Nor has he proved their value at the date of eviction, or even that they had a value at that date. I do not accept the submission made on behalf of Mr Vella that I should treat the cost of these items as the best evidence of their value at the time of the eviction. They are items whose intrinsic nature is such that their value declines once they are used. In those circumstances I cannot award damages for the conversion of those items.
226 Amongst the items of Mr Vella which were not returned were 10 AADs. I accept the evidence of Mr Keith Kelly valuing those devices at $28,000. Even if Ms Gleeson's statement about the "sale price and terms of purchase" of those machines, in her application for transfer of the liquor licence (para [47] above) were regarded as an admission made on Mr Vella's behalf (which I doubt), her answer, fairly construed, is that the machines were not being purchased, or leased, and they had no "residual value". That statement does not detract from Mr Kelly's valuation. Nor does the fact that no value was attributed to the amusement devices in the Contract for Sale whereby Mr Vella purchased the business from Buddies (para [14] above), detract from Mr Kelly's valuation.
227 The only conversion claim which has been made out is in relation to the AADs. Mr Vella is entitled to a judgment for $28,000 concerning them.
228 Wah Lai relied, in the event that Mr Vella was found to be lessee of the premises under the Lease at the date of the eviction, on clauses which purported to entitle the lessor to keep and sell any goods on the premises, if the lessee was in breach. By the time of the eviction, no estoppel bound Mr Vella to act as though he was lessee under the Lease. Even if he was, at that time, representing that he was still bound by the Lease (which I doubt), Wah Lai was certainly no longer acting on the basis of any such representation. Thus, those clauses provide no defence.
229 An alternative defence which Wah Lai raises is that if Buddies remained the lessee then the same clauses which I have just referred to, together with a clause which provided that if the lessee did not remove its goods at the end of the Lease then they became the property of the lessor, absolve Wah Lai from liability. It is not necessary, for the purpose of dealing with this alternative defence, to make findings about what the legal relations were between Wah Lai and Buddies. No contractual arrangement between Wah Lai and Buddies entitles Wah Lai to take someone else's property. That alternative defence also fails.
Wah Lai's Cross-Claim
Recovery of Rent and Outgoings
230 Wah Lai's cross-claim is of two kinds. The first is a claim to recover from Mr Vella, rent and outgoings under the Lease.
231 In accordance with the principles at para [166] - [168] above, Mr Vella has, by his conduct in entering possession of the premises after Wah Lai had consented to an assignment to him of the Lease, and paying rent, represented to Wah Lai that he was in the position of a tenant of the premises on the terms of the Lease. Wah Lai acted to its detriment in reliance on that representation by permitting Mr Vella to remain in the premises as though he were a tenant. That estoppel continued to bind Mr Vella until the "You've Got No Lease" meeting. Whatever Mr Vella's own beliefs were after that meeting, Wah Lai was not then relying on any representation by him that he was a tenant on the terms of the lease, and that is sufficient to prevent Mr Vella being bound by an estoppel after the date of that meeting.
232 The evidence did not enable the date of the "You've Got No Lease" meeting to be fixed with certainty. For the purposes of making a claim for unpaid rental and outgoings, Wah Lai bears the onus of proving the period during which there was a liability to pay rental and outgoings. It has not discharged the onus of proving when, within the range of dates during which the "You've Got No Lease" meeting might have happened, it actually occurred. Therefore, for the purpose of Wah Lai's cross-claim, the meeting should be taken as having occurred at the date most unfavourable to Wah Lai of those possible dates. That is the beginning of the range of possible dates, namely, 7 February 1996 (the day after the decision to evict Mr Vella).
233 I find that the amount of unpaid rental and outgoings which Wah Lai is entitled to claim against Mr Vella, for the period up to 7 February 1996, is $85,228.22. The basis for this calculation is set out in the Second Schedule to this judgment, at para [275] ff. Against that amount Mr Vella is entitled to offset the amount of $61,820 (para [274] below). Thus the amount of damages to which Wah Lai is entitled pursuant to its cross-claim is $23,408.22. Wah Lai made no claim for mesne profits, or for rent on any basis other than pursuant to the Lease.
Damages for Non-Compliance with Rent Offset Agreement
234 The second kind of claim which Wah Lai brings arises from Mr Vella's non-compliance with the rent offset agreement. That kind of claim is put in two ways, one as breach of contract, and the other as misleading and deceptive conduct.
235 Wah Lai pleads the rent offset agreement as follows:
"On or about 4 December 1995 and notwithstanding that under the lease it was not liable (as between lessor and lessee) for carrying out the Fire Safety Works Wah Lai agreed that if [Mr] Vella would cause the Fire Safety Works to be done without cost to Wah Lai within the time required by the Council Wah Lai would contribute to the cost thereof to a limit of the said sum of $44,490 by way of off-set (to that limit) against arrears of rent and outgoings then due under the lease and to this [Mr] Vella (for himself and Buddies) agreed."
236 The precise agreement pleaded is not made out - the rental offset agreement was arrived at after 4 December 1995, and after Mr Touma had been to Hong Kong; further, it had no term as to time (other than an implied term that the works would be carried out within a reasonable time), and there was no upper limit on the amount of money which might be offset against arrears pursuant to it (para [103] above). Even so, an attenuated version of the agreement pleaded was established, which differed from it in the ways I have just mentioned. It is sufficiently close to the agreement pleaded for a claim for its breach to be within the scope of the issues raised by the pleadings.
237 Wah Lai has not persuaded me that Mr Vella breached the attenuated version of the rental setoff agreement which it has proved. Understandably, given that Wah Lai's case was that the rental setoff agreement required the work to be done within the period nominated by the Council's notice, no evidence was called on the topic of what would have been a reasonable time, from the date in December 1995 when the rental setoff agreement was made, for the carrying out of those works. For the purposes of an implied contractual term to carry out work in a reasonable time, the knowledge which both parties have of the circumstances relevant to urgency is a relevant matter. When Wah Lai has not shown that Mr Vella knew about the Council's 60-day limit, that 60-day limit cannot be used as a factor taken into account in deciding what is a reasonable time. Another relevant matter is how long it would take competent workmen to carry out all the tasks listed in the Fire Safety Order. There is no evidence on that topic at all. It is not a topic appropriate for judicial estimation. Under those circumstances, Wah Lai has not made good the contractual version of its cross-claim concerning the rental offset agreement.
238 In case I am wrong in finding no breach has been established, I also examine Wah Lai's claim for damages said to have arisen from this alleged breach. It is, in substance, that in consequence of Mr Vella's breach of the agreement, the orders of 12 July 1996 in the Land and Environment Court (para [59] above), closing the premises down, were made, and that the closure of the Tavern caused Wah Lai to incur interest liabilities to its financier until such time as the Tavern was sold. The Tavern was eventually sold to Callwork Pty Ltd for $1.6m, in a sale which settled on 20 May 1999. Wah Lai had purchased the premises for about $1.7m, with the purchase settling in about September 1990.
239 Southgate Inc ("Southgate") is a company incorporated in Liberia, of which Dr and Mrs Chan are shareholders. Dr Chan is a director of that company. To finance the purchase of the Tavern in 1990, Wah Lai borrowed A$1m from Southgate, with interest at ten percent per annum adjustable according to the prime rate in the money market in Liberia, and secured by the Tavern. Wah Lai also borrowed A$900,000 from Westpac. On 10 September 1992 Wah Lai borrowed a further A$900,000 from Southgate, and used that money to discharge the loan from Westpac. A written loan agreement relating to the 1992 borrowing said that the loan would bear interest at the rate of seven percent per annum, and said nothing about the loan of A$900,000 being secured in any way.
240 Mrs Chan gave evidence that, at some time around the date the second loan agreement was entered (she vacillated about just when it had happened) she had a conversation with her husband to the effect that the interest rate on that second loan should be ten percent, and that it should be secured against the Tavern. Given the involvement of solicitors in the drawing of the loan agreement for the second loan, and Mrs Chan's vacillation about the date of her conversation with her husband, I am not persuaded that the second loan was made on terms other than those appearing in the written loan agreement relating to it.
241 There is no specific evidence about what Wah Lai would have done with the proceeds of any sale of the property, if it had been effected in 1996. However, given that the loans from Southgate had originally been made for the purpose of the Tavern, and that the $1m loan from Southgate was secured on the Tavern (even though the second loan was not) I infer that it is more likely than not that the proceeds of any sale of the property in 1996 would have been applied towards repayment of the loans to Southgate.
242 Mr Vella's counsel submits that there is a fundamental problem with Wah Lai's case on damages, in that there is no evidence as to how (ie whether by auction or otherwise), or for what price the property was likely to have been sold if the sale took place at or about the time of Mr Vella's eviction from the Tavern. I do not regard this as an insuperable problem to the calculation of damages. In the absence of other evidence, and given that Wah Lai had the onus of proving its damages, if damages were payable I would calculate them on the basis that, if Wah Lai had been able to sell the Tavern promptly after Mr Vella's eviction, it would have done so within the three months after 14 May 1996, and for a sum of $1.6m. This would have the effect that not all of the interest which was payable to Wah Lai's financier was attributable to the breach. In circumstances where I have found, however, that Wah Lai have not established any breach, there is no point in going on to calculate the precise amount of these damages, nor to consider Mr Vella's argument that Wah Lai failed to act reasonably to mitigate its damage.
Damages for Non-Compliance with Work Performed Representation
243 The Fair Trading Act 1987 version of this claim amounts to saying that Mr Vella represented that he would carry out the works required by the Fire Safety Order within a reasonable time, and that that representation was misleading and deceptive because he did not have reasonable grounds for believing that he would do so. That being a representation as to a future matter, the onus is on Mr Vella to prove he had such reasonable grounds (section 41 Fair Trading Act 1987). He has not discharged it.
244 Wah Lai's case for damages on this cause of action is in substance the same as its case for damages for breach of contract concerning the rent offset agreement (para [238] above). Wah Lai has not made that case out, because it has not demonstrated that the closure of the Tavern was caused by Mr Vella's having had no reasonable grounds for representing that he would carry out the Fire Safety Works within a reasonable time. Wah Lai called no evidence to the effect that, if Mr Vella had not made that representation, it would have found some other way of having the works carried out. I do not infer that Wah Lai would have done so. It had known, since September 1995, that work was required to be done pursuant to the Fire Safety Order (para [76] above). Mr Touma had informed Wah Lai, on 26 October 1995, that the repairs were urgently needed, and that the Council would close the hotel if they were not done (para [88] above). It was Mr Vella, in October 1995, who raised the prospect of doing the work himself, with the cost offset against arrears of rent (para [90] above). Mrs Chan, when asked directly by Mr Touma in Hong Kong to do the work, said she did not have any money (para [98]). When Dr and Mrs Chan saw, on 6 February 1996, that little progress had been made in carrying out the works, their reaction was not to terminate the rental setoff agreement and have Wah Lai undertake the work itself, but rather to set about obtaining possession of the hotel. Even after it had obtained possession, in the nearly two months which elapsed between the eviction on 14 May 1996, and the Land and Environment Court making orders for the closure of the premises on 12 July 1996, Wah Lai did nothing to set about carrying out the work itself. In these circumstances, Wah Lai has not satisfied me that, if Mr Vella had never made the representation about his own future actions which was involved in the rent offset agreement, the Tavern would not still have been closed by the Council. The Fair Trading Act 1987 version of Wah Lai's cross-claim also fails.
Proceedings Number 1850 of 1999
245 These proceedings, as eventually amended, sought a declaration that, as at 29 September 1995, Ms Gleeson had no right, title, estate or interest in the land on which the Tavern was erected, and a declaration that she had no claim upon Wah Lai in respect of her loss of her liquor licence. Mr Simpkins SC appeared for Ms Gleeson at the hearing. Upon being asked whether there was any live issue that Ms Gleeson had any such right, title, estate or interest in the land, or claim upon Wah Lai in respect of her loss of the liquor licence, Mr Simpkins informed me that there was no such issue.
246 Other relief sought in the proceedings was an injunction restraining Ms Gleeson from lodging any further caveat against the land, and an injunction restraining Craftmill from lodging any caveat in respect of the land. There is no threat by either Ms Gleeson or Craftmill to lodge any such caveat. Furthermore, Wah Lai no longer owns the land.
247 In these circumstances there is no live issue which remains to be determined in proceedings number 1850 of 1999. The parties have already (by a deed made 28 April 1999) agreed that they shall bear their own costs.
248 For these reasons, I shall dismiss proceedings number 1850 of 1999, with no order as to costs.
Orders
249 It would be appropriate for the respective entitlements to damages which Mr Vella and Wah Lai have established against each other to be set-off.
250 I direct the parties, within 14 days of the date of delivery of these reasons for judgment, to make an appointment with my Associate to fix a time for the bringing in of Short Minutes of Order to give effect to these reasons for judgment. At that time I will hear any argument concerning costs.
**********
FIRST SCHEDULE
BUILDING WORK DONE AT TAVERN (PARA [105] ABOVE)