Don Webb v Dia Kensetsu Company Ltd [1998] RSLT 27

[1998] RSLT 27 RETAIL SHOP LEASES ACT 1994 In the matter of Dispute No.88 of 1997 DON J WEBB - Claimant - and - DIA KENSETSU COMPANY LIMITED - Respondent DECISION Given on 18 December 1998, in Brisbane -- 1 of 15 -- Webb-v-Dia Kensetsu Decision - Page 2 In this dispute, the Tribunal orders that the claimant's claim be dismissed. The reasons follow. This matter was commenced by a Notice of Dispute pursuant to s.55(1) of the Retail Shop Leases Act 1994 ("the Act") dated 5 August 1997, and filed on 6 August 1997. A mediation hearing was conducted on 1 September 1997. No agreement was reached. The Mediator referred to the Chief Executive, who referred to a Tribunal in accordance with s.65 of the Act. Thereafter, various directions hearings were called and conducted, the first to make an order in the standard form in such matters, and the remainder to enable the claimant to clarify his case and state the issues with precision to enable the respondent to know the case it had to answer, and to file and serve material in accordance with the original order. At the first full Tribunal hearing, it became apparent that the details of loss referred to were the loss not of the claimant tenant, but of a company Gems & Minerals Pty Ltd which the claimant controlled, and which carried on business in the retail shop premises. The hearing was adjourned, again for the purpose of enabling the claimant to present his case in a comprehensible form. The claim was heard by a full Tribunal on Monday to Wednesday, 9-11 (inclusive) November 1998. The particulars of the claim as stated in the Notice of Dispute filed on 6 August 1997 are: - "Claiming compensation as a result of actions by the landlord. 1.Sinage (sic). 2.Misrepresentation. Bond money". The claimant then filed an amended Notice of Dispute naming himself, Don J Webb, as first applicant, and the company Gems and Minerals Pty Ltd as second applicant. At a directions hearing, the Tribunal refused an application for an order that Gems and Minerals Pty Ltd be joined as an applicant. At the commencement of the hearing on 9 November 1998, the claimant, by his agent Mr Swindells of Counsel, produced further amended particulars of his claim in a document which was formally tendered as an Exhibit on the following day and admitted and marked "Exhibit 8." Exhibit 8 is headed, "Particulars of Applicant's Loss." The first page of the document sets out certain "losses in -- 2 of 15 -- Webb-v-Dia Kensetsu Decision - Page 3 relation to shop premises", itemised as follows: - "a.Purchase of various shopfittings - $3000.00. b.Purchase of plant and equipment for shop - $10,000.00 c.Cost of installing and fitting all of the above items - $8,000.00. d.Purchase of stock by Don J Webb which was to be sold by Gems and Minerals Pty Ltd on behalf of Don J Webb, but was not in fact sold - $20,000.00. e.Cost of dismantling and un-installing (sic) abovementioned fixtures, fittings, plant and equipment - $4,000.00 f.Loss of profits from sale of shop lease - $5,000.00 Total Loss: $50,000.00" That front page of Exhibit 8 is followed by two pages, headed: "Claims of Don J Webb (First Applicant)"; then by two further pages containing details of the expenses listed as a. to e; and then by "Attachments D-1", the first being a letter handwritten on what appears to be the letterhead of R & M Legg Holdings Pty Ltd, trading as Selective Leasing, dated 1/7/98, bearing the signature "R Legg", the second being an invoice in a form used by Santon Pty Ltd, trading as Santon Souvenirs and Opals, dated 29/11/96, in a total amount of $10,600.00, endorsed with the word "Received" and a signature which appears to be that of the claimant D J Webb; the third being an "Option to Purchase" issued in the name of "Fast Cash"; and the fourth a note from Fast Cash to the claimant apparently showing sales from the claimant to Fast Cash. The last-mentioned (fourth) attachment bears at the foot an endorsement, "Loan money from sales Fast- Cash to D J Webb for stock purchases." The statement of the orders sought by the claimant was amended on the application of the claimant to specify the matter of compensation sought to be "in the sum of $50,000". Counsel for the claimant stated that the letter dated 1/7/98 on the letterhead of Selective Leasing did not state the facts correctly when it referred to a "loan to purchase stock and goods" and that it should have referred to purchase of plant and equipment for the shop. The signatory to the letter was not called to give evidence. Counsel for the respondent, Mr Collins, questioned how the claimant, who was the receiver rather than the creator of that letter, could give evidence to the effect that the letter was in error. That question was raised at a later stage in the hearing. The claimant through his Counsel abandoned previous claims for loss and damage and relied upon the particulars of loss and damage set out in Exhibit 8. -- 3 of 15 -- Webb-v-Dia Kensetsu Decision - Page 4 But the claimant did not abandon, and indeed, expressly relied upon the alleged false and misleading statements or misrepresentations set out in Items 4 and 5 of the Amended Particulars of Claim dated 11 May 1998, in which an attempt was made to join the company Gems and Minerals Pty Ltd as the second applicant. The relevant paragraphs read as follows: - "4.The respondent, through its servants, agents or employees during the negotiation process (i.e. the process which led up to the granting and acceptance of the retail shop lease in question) made statements to the first and second applicants to the following effect: (i)That a hotel would be built next door to the retail shopping centre and an accommodation tower would be built over the top of the retail shopping centre, and the entrance to the said hotel would be located near Shops 11, 11A and 14. (ii)That one big sign would be placed in the ground floor mall area of the retail shopping centre near the statue of `David' to divert shoppers upstairs to the level upon which Shops 11, 11A and 14 were located. (iii)That the `Oyster Bar' which was part of the establishment known as `King Arthur's Table' would be open 11.00 a.m. to 5.00 p.m., and 5.00 p.m. until late in the evening every day. (iv)That Level One of the retail shopping centre would be all boutique retailers. 5.Implicit in all these statements was the suggestion that as a result of the above, there would be a large and increasing volume of shoppers passing shops 11, 11A and 14." The shop first occupied by the claimant was Shop F11, after which the claimant, by arrangement with the respondent's agent, occupied Shops F11A and F14. Written leases were entered into and duly stamped in respect of Shops F11 and F14. Although a document intended to become a lease of Shop 11A was prepared and submitted to the claimant through his solicitors, that document was not signed by the claimant or on behalf of the respondent. Under cross- examination the claimant did state that the reason for his not signing the lease was not related to the premises themselves, but to advice given to him by his solicitors that the terms of the lease should be amended in certain respects. The -- 4 of 15 -- Webb-v-Dia Kensetsu Decision - Page 5 claimant could not recall what those respects were. (Transcript pp 169-171) The discussions concerning the lease of Shop F11A took place before the claimant went into Shop F11 on or about April 1997. The claimant in his statement dated 6 August 1998 (which as amended became Exhibit 3) states that in 1996 he was the personal lessee of a retail shop F2 located on Level One of the "Galleria Shopping Centre" at Gold Coast Highway, Surfers Paradise, and from that shop he conducted a mixed souvenir and opal retail and wholesale business called Crafts Australia, through a company called Ruby Brae Pty Ltd. He goes on to state that prior to August 1996 he commenced familiarising himself with the availability of retail shop leases for retail shops in the Gold Coast area, and the retail market in general. At that time he was considering moving locations, as he believed the rent was too high and likely to increase further without any increase in trade being likely. He went on to state that he commenced making inquiries with "Vivian Dayton" (sic) who was Centre Manager of Raptis Plaza. In paragraph 11 of Exhibit 3 the claimant states:- "During negotiations with the respondent, the respondent made the statements contained in paragraph 4 of the documented headed, `Claims of Donald John Webb'. In an earlier statement dated 28/10.97 but which, in spite of its date, became Exhibit 4, the claimant states that he commenced trading in Shop F11 at Raptis Plaza on or about 14 November 1996 and signed a lease on or about 1 December 1996. That lease is among the documents filed. It relates to Shop F11 and is expressed to commence on 1 December 1996 and expire on 30 November 1997. Although the evidence shows that the claimant moved from Shop F11 to Shop F14, adjoining Shop F11A (between which shops a partition was removed, effectively converting them to one shop), there is no suggestion that the term of the lease was ever extended beyond 30 November 1997. In paragraph 5 of Exhibit 4, the claimant states:- "I was first shown a shop in Arcade Three. As I had heard that Arcade Three experienced severe trading difficulties, I inquired about retail space on the First Floor." In paragraph 10 of an attachment headed, "Level One Problems" which also forms part of Exhibit 4, the claimant states:- "I was offered a shop in Arcade 3 at a rental in excess of $576 per week. However, I said no, as it was too expensive. They have since let it to a tenant on a month-to-month basis of $250 per week. Had this been offered to me, I would have accepted it at this rental. In my lease of Shop F11 it was written I was to be offered any rental to -- 5 of 15 -- Webb-v-Dia Kensetsu Decision - Page 6 the other parts of the Centre first - this had not been done." In oral evidence, the claimant said that the offer of the shop in Arcade Three was made before he decided to take the lease on Level One, and was in fact offered to him before he went to inspect Level One. Nowhere in Exhibit 3 or Exhibit 4 does the claimant state that he would not have entered into the initial lease of Shop F11 at Raptis Plaza or occupied that shop or the later shop F11A and F14, had he not relied upon the representations made by Vivienne Deighton. Indeed, as mentioned above, he would have accepted a lease on the ground floor of Raptis Plaza had the rent been a great deal lower than that at which it was offered to him. In Item I on the last page of Exhibit 4, the claimant states:- "I am seeking 12 months rent free and monetary damages - also, I want to have only one shop. Any arrears of rent to be waived, sign placed in proper position, and a decent sign downstairs indicating the retail shops upstairs." It is not until one reads Exhibit 8, a document filed for the first time on the first day of the hearing, 9 November 1998, that one finds, in paragraphs 6 to 9 inclusive of the claims of Don J Webb, a statement that the claimant was induced by the allegedly false and/or misleading statements referred to in paragraph 4 (set out above in this decision) to enter into the lease of Shop F11. The questions of fact before the Tribunal, as defined in Exhibit 8, are: - 1.Were the statements referred to in paragraph 4, set out above, or some of those statements, made to the claimant? 2.Were the statements or was any statement made by a person acting under the authority of the lessor? 3.Was the claimant induced by the statements or any of them to enter into his lease of Shop F11 at Raptis Plaza? 4.Were any statements, or was any statement, which induced the claimant to enter into the lease, a "false or misleading statement or misrepresentation" within the meaning of that expression in subs.43.(2)(a) of the Act? 5.Did the claimant suffer loss or damage because it entered into the lease of Shop F11 at Raptis Plaza? In view of submissions made on behalf of the respondent, to which reference will -- 6 of 15 -- Webb-v-Dia Kensetsu Decision - Page 7 be made later in this decision, it is necessary to point out and explain the basis upon which a lessor may be liable to pay to a lessee compensation pursuant to s.43.(2)(a) of the Act. That subsection does not provide for payment of damages for misrepresentation or deceit. Instead, s.42 of the Act implies into every retail shop lease to which the Act applies (and this is such a retail shop lease) a covenant which is set out in s.43.(2)(a) in the following terms: - "The lessor is liable to pay to the lessee reasonable compensation for loss or damage suffered by the lessee because - (a)the lessee entered into the lease, or a renewal of it, on the basis of a false or misleading statement or misrepresentation made by the lessor or any person acting under the lessor's authority;" The entry into the retail shop lease (or a renewal of it) is the cause of loss to which the covenant refers, and it is loss caused by entry into the lease for which the lessor covenants to pay reasonable compensation to the lessee. It is not the case that no compensation is payable if the loss would have been incurred, even had the representations relied upon been made good. Counsel for the respondent submitted that the representations upon which the claimant relied were not representations of presently existing facts, but rather, representations as to future matters. He went on to submit that representations as to future matters will be misleading only if it is shown that the maker of the statement knew, at the time the statement was made, that it was false, or the statement was made with reckless indifference to its truth or falsity. He relied on James-v-ANZ Banking Group 1986, 64ALR 347, and Global Sportsman Pty Limited-v-Mirror Newspapers 1984, 2 Federal Court Reports 82, as authorities for that well-known proposition. He then went on to submit that, in determining the character of a representation, the Court tests the representation at the time it was said to have been made, and not with the benefit of hindsight. He cited Bill Acceptance Corporation-v-GWA 1983 78FLR 171, and Agaiby-v-Darlington Commodities 1985, ATTR40-535, as authorities for that proposition. The authorities do support the submissions, but that is not the end of the matter. The Act contains no provisions equivalent to s.51A of the (Commonwealth) Trade Practices Act 1974, which, in effect, reverses the onus of proof by requiring a corporation to demonstrate that it had reasonable grounds for making a representation, or the corresponding s.37 of the (Queensland) Fair Trading Act. The onus of proof before a Retail Shop Lease Tribunal remains on the claimant. Where a representation concerning a future event is made in such a manner as to be taken, reasonably, to mean that the maker has certain knowledge that the event will occur, then the Tribunal regards such a -- 7 of 15 -- Webb-v-Dia Kensetsu Decision - Page 8 representation as being to a present fact, namely, the state of the mind of the maker of the representation. Such a representation can be false or misleading, as can any other representation as to a present fact. Thus, although the submissions made on behalf of the respondent are supported by authority, they do not mean that the claimant cannot succeed, simply because the representations did make reference to future events. It is convenient at this point to deal with and then abandon a submission made by Counsel for the claimant concerning the application of the principle established in Jones-v-Dunkel & Anor in [1958-1959] 101C.L.R. 298, a decision of the High Court of Australia. That case is the leading authority on what inferences, if any, can be drawn when a party to litigation does not call a certain witness. In this instance, Counsel for the claimant was referring to the fact that the respondent did not call one Stephen Knudsen, a director to whom Ms Deighton reported. The following questions and answers appear on transcript page 267:- Q.And you, generally speaking, would either consult with or take directions from Martin Knudsen, wouldn't you?-- A.Yes. Q.So, for instance, if there had been issues about what to do with this, Steve - I apologise, the name Steve Knudsen and he was your supervisor, if you like, your superior?-- A.My director. Q.So hypothetically, if these things were to occur, these representations, or problems with them, you'd have to speak to him about sorting it out?-- A.Yes. There was no clear indication given to the witness as to what Counsel for the claimant was talking about. When asked by the Chairman to clarify what he meant by "if these matters arose", Counsel for the claimant replied: - "The representation issues. I was asking her about representations, and I said if these matters arose, if there was conflict with them, if there were, like, things in the paper, and she was going to make representations, and if she was going to try and deal with Mr Webb about them, would she have to discuss it with Mr Knudsen." On that submission, and relying upon Jones-v-Dunkel, Counsel for the claimant further submitted that inferences adverse to the respondent could be drawn from the fact that the respondent had not called Mr Knudsen. In reply, Counsel for the -- 8 of 15 -- Webb-v-Dia Kensetsu Decision - Page 9 respondent submitted that the claimant had not alleged any representation was made to him by Steve Knudson. Counsel for the claimant then produced and tendered a letter from the claimant to the respondent's solicitors dated 30 March 1998, a further such letter dated 1 April 1998, and a letter to the Assistant Registrar of the Retail Shop Leases Registry, also dated 1 April 1998, requesting that a "subpoena" be served on Steve Knudsen, requiring him to appear for cross-examination. The letters were admitted and marked Exhibit 29, but they lose their effect completely once it is realised that they have no relation to the matter before the Tribunal on 9, 10 and 11 November 1998, and that the claimant, having obtained legal representation, did not again seek the issuing of an attendance notice. In Jones-v-Dunkel, which was a jury trial, the Judge at first instance gave certain directions in response to a question asked by a juryman. When the appeal came before the High Court, three Members held that the jury should have been told that any inference available to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person, presumably able to put the true complexion on the facts relied upon as the ground for the inference, has not been called as a witness by the defendant, and that the evidence provides no sufficient explanation of his absence. In Australian Commercial Research and Development Ltd-v-Hampson [1991] 1QD R.508, the Trial Judge, Mackenzie J said at page 38 with reference to the rule in Jones-v-Dunkel: "However, the rule does not permit the filling in of gaps in the evidence. It does not convert conjecture and suspicion into inference .... the rule is concerned with the confirmation of inferences which may be drawn from proven facts in the case." In the dispute before the Tribunal, there are no inferences to be drawn from proven facts because the facts, if proven, do not require the drawing of inferences. Additionally, there is no real evidence before the Tribunal to show or indicate that Knudsen could have "put the true complexion on the facts relied upon" by the claimant. On the ruling of the Chairman, the Tribunal holds that there is no room in this dispute for the application of the rule in Jones-v-Dunkel. A further question of law arose in relation to the proposed calling of evidence from two other tenants in Raptis Plaza. Counsel for the claimant submitted that the "similar facts" evidence that those witnesses might give would have some probative value towards establishing the claimant's case. Counsel for the respondent submitted that the evidence should not be admitted on the basis that it did not touch sufficiently upon the misrepresentations which the claimant alleged had been made. On the ruling of the Chairman, the "similar facts" evidence was held not to be relevant and was not admitted. In fact, all three Members of the Tribunal had read the written statements of the witnesses concerned and agreed that admission of the evidence concerned would not take the claimant's case further. The way is now clear to consider the questions posed above. It is not necessary -- 9 of 15 -- Webb-v-Dia Kensetsu Decision - Page 10 to dwell upon the question of whether such representations, if any, as were made and relied upon by the claimant, were made by a person acting under the authority of the lessor. The witness Vivienne Deighton gave evidence to the effect that she was the manager of the company administering Raptis Plaza on behalf of the owner. The evidence concerning the representations alleged by the claimants to have been made, appearing in paragraph 4 of the "Claims of Don J Webb" is as follows: - "Representation (i) namely `that a hotel would be built next door to the retail shopping centre and an accommodation tower would be built over the top of the retail shopping centre and the entrance to the said hotel would be located near Shops 11, 11A and 14'." The claimant says in paragraph 9 of Exhibit 4:- "I was also told by Ms Deighton that accommodation would be built over the top of Raptis Plaza and the area that I was leasing would be an entrance area to an Hotel. The Hotel was to be built on the site next door to Raptis Plaza." That exhibit embodies the claimant's statement dated 28/10/97. In Exhibit 3, the statements made on 6 August 1998, the claimant at paragraph 11 states: "During negotiations with the respondent, the respondent made the statement contained in paragraph 4 of the document headed `Claims of Donald John Webb'." That paragraph is referred to above. It sets out the alleged misrepresentations. To support his evidence, the claimant produced a photostatic copy of an article stated by the claimant to have been published in the newspaper, the Gold Coast Bulletin on 19 October 1996 under the headline, "Forrester may build Tower above Plaza". The photocopy did not contain the name "Gold Coast Bulletin" nor the date. The Tribunal was assured by the claimant in his oral evidence that the press item was found by a search at the premises of the Gold Coast Bulletin and that search established its date as 19 October 1996. In her written statement of evidence dated 16 January 1998, the respondent's witness, Vivien Lorette Deighton, stated at paragraph 14: - "I did not indicate to Webb that accommodation would be built over the top of Raptis Plaza. The first conversations that Webb and I had was after it had appeared in the papers and he came to see me, and I referred him to our lawyers for comment. I have never ever induced a client to lease Raptis Plaza on the basis of a hotel being built at the existing site. I have never had any information or knowledge of what proposals were intended for either vacant land -- 10 of 15 -- Webb-v-Dia Kensetsu Decision - Page 11 or accommodation to be put on top of Raptis Plaza." Ms Deighton was cross-examined, with perhaps excessive severity, by Counsel for the claimant. She was referred to the press clipping, Exhibit 25, but nevertheless reiterated her statement: "I have never had any information or knowledge of what proposals were intended for development of the adjacent vacant land or the space over Raptis Plaza, if any." That statement is not inconsistent with the witness having seen the article Exhibit 25. The article is almost wholly conjecture. It does not represent plans for development. In fact, it contains a sentence, "Foresters Development General Manager Mike Hubner says plans for the site are likely to be announced within a fortnight" following an earlier sentence reading, "....and a 263 room five-star hotel on the adjoining side, but its plans have not gone ahead." The witness Ms Deighton was quite unshaken on cross-examination. In her second statement dated 17 April 1998, Ms Deighton said at paragraphs 46 and 47: "I said something like `I know nothing about it, and if you want to ask about it, ring Martin Klapper of Clarke and Kann, the lawyers, about it' and then gave him the phone number for Klapper. I told Webb to phone Klapper because I had seen the newspaper article in the Gold Coast Bulletin before I had spoken with Webb and I knew that a previous tenant had alleged that it had been represented to him that there would be a hotel, so I rang Klapper for his advice. Klapper told me that if anyone asked about it, I was to tell them to ring Klapper, and that was what I did." That statement, too, is not inconsistent with the witness's statement that she was not aware of proposals for development. On balance, the Tribunal prefers her evidence to the evidence of the claimant, and does not accept the claim that representation (i) was made. With regard to the alleged representation (ii), namely, "that one big sign would be placed in the ground floor mall area of the retail shopping centre near the statue of `David' to divert shoppers upstairs to the level upon which Shops F 11, F11A and F14 were located," the claimant stated in paragraph 11 of his statement Exhibit 4: - "Ms Deighton also told me that new signs would be placed in Raptis Plaza and that further efforts would be make to tell customers that retailing was occurring on the First Floor. Ms Deighton said there would be a large sign indicating that shops were upstairs similar to the Paradise Centre signage. Also, the Directory of Tenant Services would be improved to direct people upstairs." -- 11 of 15 -- Webb-v-Dia Kensetsu Decision - Page 12 In his statement of 6 August 1998, the claimant at paragraph 11 said: "In negotiations with the respondent, the respondent made the statements made in paragraph 4 of the document headed, `Claims of Donald John Webb'." The respondent's witness, Ms Deighton, said in paragraph 17 of her statement dated 16 January 1998: "Again, I did not say that large signs to attract people upstairs would be constructed. There is signage above the escalators to alert customers to stores upstairs." In paragraph 48 of her second statement dated 17 April 1998, Ms Deighton said: "I do not know anything about the Paradise Centre sign referred to in paragraph 12 of Webb's statement, and I did not say to Webb at any time that there would be such a sign. Although, I did say to Webb that further efforts would be made to tell customers that retailing was occurring on the First Floor." In paragraph 49 of that statement she said: "I did not say that the Directory of Tenant Services would be improved to direct people upstairs as alleged in paragraph 12 of Webb's statement, as the Directory Board was brand new and it was updated when there were tenancy changes. I don't know how it could be `improved' and I didn't say any such thing to Webb.". In cross-examination, the claimant did not establish the allegation relied upon. It is common ground between the parties that there was some talk of some signage. On the balance of probabilities, the Tribunal prefers the evidence of Ms Deighton. With regard to representation (iii), namely, "That the `Oyster Bar' which was part of the establishment known as `King Arthur's Table' would be open 11.00 a.m. to 5.00 p.m. and 5.00 p.m. until late in the evening every day", the Tribunal is satisfied that Ms Deighton did convey to the claimant the information that she had been informed by the proprietors of the Oyster Bar that that is what would happen. In fact, the Oyster Bar did open and remained open for some time. There is no force in the submission made by Counsel for the claimant that this representation (iii) was proved or that misrepresentation was made to the claimant. Indeed, the evidence shows that the claimant saw for himself on at least one occasion before he entered into the lease that the "Oyster Bar" was not open. With regard to representation (iv), namely: "That Level One of the retail shopping centre would be all boutique retailers", the claimant's evidence is that when he inspected Level One the Chamber of Commerce had premises there, and that there was another empty office space on that level. He said he assumed from what Ms Deighton told him, that the Chamber of Commerce would be moved up to a higher level, but acknowledges that Ms Deighton never made a positive -- 12 of 15 -- Webb-v-Dia Kensetsu Decision - Page 13 statement to that effect. Further, the claimant's evidence is that, with the exception of the Chamber of Commerce premises, the vacant office, and the premises he took, Level One was indeed occupied by "boutique retailers". In paragraph 5 of his document headed, "Level One Problems", being part of Exhibit 4, the claimant said: "Again I state that it was clearly told to me that the balance of all shops on Level One would be retail. Deighton also definitely said that large signs would be erected downstairs to direct customers upstairs." When asked to explain what he meant by the expression "the balance" of all shops on Level One, the claimant did not give a satisfactory answer. The Tribunal accepts that the claimant believed that all the premises on Level One would be occupied by retailers, but holds that he was not justified in assuming that the Chamber of Commerce offices would be moved to a higher level, or that the small office which was vacant when the claimant inspected Level One would necessarily be left for retail purposes. It seems to the Tribunal that the expression "the balance" of all shops, means the shops on Level One other than the Chamber of Commerce offices and the vacant office. Indeed, it appears that such was the case at the time when the representation was made. In Item 5 of the document headed, "Claims of Don J Webb (First Applicant)", the claimant claims that: "Implicit in all these statements was the suggestion that as a result of the above, there would be a large and increasing volume of shoppers passing Shops 11, 11A and 14." Counsel for the respondents submitted that s.43.(2)(a) of the Act does not contemplate implied representations. Whether or not that objection is correct in the law, the Tribunal is not satisfied that the evidence establishes the suggestion alleged. The claimant's evidence as to his reliance upon the representations alleged was not convincing. His lease of his premises at Level One at "Galleria" either had expired or was about to expire, and the alternative centres considered by the claimant were "Raptis Plaza" and "Dolphin Arcade". In the claimant's own evidence, he preferred "Raptis Plaza" because of its location, although it is not very far distant from the Arcade. The rent at "Raptis Plaza", where he eventually took premises, was at a lower rate than rent at the Arcade. The claimant made and relied upon his own investigations of trading conditions at Level One at "Raptis Plaza". He made inquiries of tenants on Level One. The claimant gave evidence to the effect that he is an experienced retailer, having been engaged in that business for a number of years. Having regard to all the relevant evidence, the Members of the Tribunal cannot be satisfied that the claimant has discharged the onus lying upon him of proof on the balance of probabilities that he was induced by any representations made on behalf of the lessor (other than as to rental) to enter into the lease of Shop F11 at "Raptis Plaza". The foregoing conclusions are sufficient in themselves to dispose of the claim; but for the guidance of future claimants, the Tribunal thinks it desirable to comment upon the standard and degree of proof required in respect of alleged -- 13 of 15 -- Webb-v-Dia Kensetsu Decision - Page 14 loss and damage. Admittedly, the claimant was handicapped by absence of records which apparently became unavailable to him when his former accountant transferred to Hong Kong. Nevertheless, concrete evidence was sadly lacking. In this particular dispute, the claimant faced a problem, pointed out to him at various directions hearings, arising from the fact that he was the lessee while the business was conducted by the company Gems and Minerals Pty Ltd. It appears from the evidence given by the claimant in cross-examination, first, that he made loans to Gems and Minerals Pty Ltd in respect of items a. b. c. and e. in the list of loss and damage; that the claimant lent money to the company to cover those expenses, but then it appeared that the claimant had made no attempt to recover the loans from the company which, on the claimant's own evidence, is now trading profitably at "Oasis Shopping Centre" at Broadbeach. Further, it appeared that the claimant purchased the shopfittings and plant and equipment and simply permitted the company to use them. He had made no attempt to recover from the company any compensation for such permitted use. Further, it was not clear what had happened to all the various items. The prices at which they were bought and sold were not established, nor were values established. So far as Item f. is concerned, the claim is untenable, simply because the claim is based on loss and damage sustained by reason of entering into the lease. If the lease had not been entered into, it would have had no value in any case. So far as Item d. is concerned, there is no evidence as to what actually happened to the stock, and no evidence to show that any loss was caused in Item d. or arose out of the entry by the claimant into the lease of Shop F11 at Raptis Plaza. The Tribunal has adopted a standard form of order regarding the conduct of disputes. That form of order deals, inter alia, with the filing and delivery of documents. Order 1, which was made applicable to the claimant in this dispute on 6 August 1998, reads as follows: - "1.The claimant shall file and deliver copies of all material on which it relies by Monday 7 September 1998. The material delivered shall: (a)contain statements of all witnesses on whom the claimant relies; (b)set out the exact terms of the order which the Tribunal is asked to make; (c)if monetary compensation is sought, the material shall set out the amount sought, the basis on which it is claimed, and details as to how the amount claimed is calculated. It will usually contain profit and loss statements and records. (Failure to set out the particulars referred to above may result in the claim being dismissed.)" -- 14 of 15 -- Webb-v-Dia Kensetsu Decision - Page 15 Order 4 reads: "Neither party is to lead any evidence at the hearing which is not contained in the statements or other material filed." That order was made applicable to the claimant in this dispute on 6 August 1998. Before a Retail Shop Lease Tribunal, the statements referred to in the standard order take the place of pleadings which would be required in the ordinary Courts of Law. The statements are required to be such that both the other party and the Tribunal can understand the case being made, and the basis of that case. It must be understood that the order means what it says. A W Couper, Chairman. -- 15 of 15 --