Re Terry Buchanan and Vicki Buchanan and Buchanan'S Bakers (Wynnum) Pty Ltd v Blairfelt Pty Ltd; Hillier Parker (Qld) Pty Ltd and Blairfelt Pty Ltd [1992] FCA 3 (3 January 1992)

FEDERAL COURT OF AUSTRALIA

Re: TERRY BUCHANAN and VICKI BUCHANAN and BUCHANAN'S BAKERS (WYNNUM) PTY LTD
And: BLAIRFELT PTY LTD; HILLIER PARKER (QLD) PTY LTD and BLAIRFELT PTY LTD
No. Q G346 of 1988
FED No. 4
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)

CATCHWORDS

Trade Practices - s. 52 shopping centre lease - misrepresenations by agent - right of owner in contract to indemnity from agent.

Trade Practices Act 1974, s. 52

HEARING

SYDNEY
3:1:1992

Counsel for the Applicants: Mr P.E. Hack

Solicitors for the Applicants: Messrs Bowdens

Counsel for the First Respondent: Mr W.T. McMillan

Solicitors for the First
Respondent: Messrs Graham Davies and Associates

Counsel for the Second

Respondent: Mr R.A.I. Myers

Solicitors for the Second

Respondent: Messrs Quinlan, Miller and Treston

ORDER

The applicant bring in, on a date to be fixed by the Registrar, short minutes of orders in accordance with the reasons of the Court.

The second cross-claimant bring in, on the same date, short minutes of orders in respect of the second cross-claim, in accordance with the reasons of the Court.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

By an application and statement of claim filed 7 October 1988, the applicants sought an order under s. 87 of the Trade Practices Act 1974 declaring void, by virtue of contraventions of s. 52, a lease made between the second applicant and the first respondent bearing the date 2 March 1988 (although it appears the lessor did not execute the document until many months later) in respect of Shop 23 Bayview Shopping Centre, Wynnum. The applicants also sought an order for damages. On 25 November 1988, an amended statement of claim was filed. (I should note at once that I have taken into account, as was urged by counsel for the respondents, the differences between the statement of claim and the amended statement of claim, but in the context of this case I do not regard those differences as of much significance - after all, the amended statement of claim was filed within quite a short period.)

2. The amended statement of claim alleges that the first respondent is a corporation which owned and developed a shopping centre, known as "Bayside", situate at the corner of Florence Street and Bay Terrace, Wynnum, near Brisbane; that the second respondent is a corporation which carried on the business of real estate agents and property consultants and was the leasing agent for Bayside; that prior to the month of August 1987 the respondents, or one of them, caused a large advertising sign to be placed at the corner of Florence Street and Bay Terrace, which (as is set out in para. 5 of the amended statement of claim):

"(a) stated that the Second Respondent was the leasing
agent for the said shopping complex;
(b) stated that the completion date for the said shopping
complex would be February 1988;
(c) stated that the said shopping complex was eighty-five
per cent (85%) leased";

And that by the sign it was represented (as is set out in para. 6) that:

"(a) prospective tenants in the shopping centre would be
able to commence trading in or about February 1988;
(b) the shopping centre was likely to be a busy, thriving
and successful shopping centre;
(c) at least eighty-five per cent (85%) of the shops in
the said shopping complex would be open for trading
when the complex opened."

The amended statement of claim continued with an allegation that the male first applicant Mr Buchanan read the sign in about August 1987; that he spoke to a representative of the second respondent on the telephone to negotiate a lease; that the representative told him:

"i the shopping complex would be completed in February, 1988;
ii only one shop in the shopping complex had been
allocated to be a hot bread kitchen and bakery and
this was Shop 23;
iii the shopping complex was already eighty-five per cent
(85%) leased;
iv it looked as though two banks would be coming into the
shopping centre, including a Commonwealth Bank;
v on the bottom level of the shopping centre there would
be a large doctor's surgery, occupying up to eight
shops with around 4 doctors;
vi it looked like the shopping centre would be fully let
in time for the opening."

The amended statement of claim pleaded reliance upon the statements made by the advertising sign, and in the conversation; entry into an agreement to lease, and then into a lease; and that the various representations turned out to have no substance. In particular, it was pleaded that the shopping complex was not 85% leased and that there was another shop in the shopping complex, known as "Oven D'ore", which carried on the business of selling hot bread and cakes and conducted a bakery and hot bread kitchen business, which was the same business as that conducted by the first and second applicants from shop 23. It was also alleged that there was no bank in the centre and only a single doctor.

3. A defence was filed by the first respondent, on 5 April 1990, which admitted that "in approximately August, 1987 a large advertising sign was situated at the corner of Florence Street and Bay Terrace, Wynnum", but otherwise did not admit the allegations as to representations. It also raised a cross-claim against the applicants, as first and second cross-respondents, in respect of the rent unpaid under the lease; and a second cross-claim against the second respondent, as third cross respondent, on the basis that it was the agent for the letting of shops within the centre and was bound to exercise skill care and diligence, as an implied term of its engagement, so that it was liable to indemnify the second cross-claimant in respect of any damage proved by the applicants, and any damage suffered by the second cross-claimant should the lease be declared void, together with any costs incurred.

4. The defence of the second respondent, filed 16 January 1989, is an interesting document. As to para. 5 of the amended statement of claim, it pleads that the second respondent does not admit the facts alleged; although as to para. 6 it denies the facts alleged. It admits the allegation of the placing of a large advertising sign, pertaining to the shopping complex, prior to the month of August 1987. It denies the alleged telephone conversation.

5. As will be apparent from the dates which I have mentioned, the hearing of this matter in late October 1991 took place after the lapse of some years. It is not really surprising that some of the evidence portrayed failures of memory. Mr Buchanan, in particular, suffered from this problem. He is a man of very limited education, having left school at the age of 15 when he was half way through grade nine. I think his ability to recall events and conversations, placing them accurately in their context of time and relationship with other events, and to express his understanding of them in evidence in the course of a court hearing, was extremely limited. However, he appeared to me to be an honest witness, who told the truth to the best of his ability. After such a lapse of time, some reconstruction is natural, but I think that, in essentials, he is to be accepted as a witness of truth. The first respondent's Mr Rueben Hall suffered none of Mr Buchanan's disadvantages. He is obviously a highly intelligent man with a clear grasp of circumstances and of their meaning, as it presented itself to him. I think he was also a witness on whose truthfulness I could rely. But he had no part in the central theme of this case. The third major witness, the witness whose evidence is the principal evidence to be weighed against that of Mr Buchanan, was Mr Keller, an employee of the second respondent, Hillier Parker (Qld) Pty Ltd (Hillier Parker). He impressed me much less favourably. Although obviously more intellectually able than Mr Buchanan, he also had some remarkable gaps in his memory, and, in his case, it seemed to me that some, at least, of the gaps were convenient. He had no recall of his initial conversation with Mr Buchanan, except for some relatively unimportant details. While I think Mr Buchanan's evidence was mistaken in various respects, on the essential points where he and Mr Keller are in conflict, I generally prefer the evidence of Mr Buchanan.

6. With these preliminary observations about the principal witnesses, I turn to an account of what occurred. In mid 1987, the shopping centre which became "Bayview" was under construction. It was Mr Keller's task to market the leases which would be available upon completion of the centre, then expected to be achieved by mid February 1988. A major tenant, an "anchor" tenant in the jargon of such enterprises, had been found, the grocery chain known as Franklins, and a glossy brochure had been produced to advertise the centre. The brochure contained a large colour picture representing a two storey building running some considerable distance down one street and a fair distance down another, at an intersection, the lower storey being a little below footpath level and the upper storey some ten steps above footpath level. A broad flight of steps was shown leading from the footpath, at the corner by the intersection, to the upper level and, down the long side of the building, there were two further narrower flights of stairs from the footpath and a ramp. The picture showed Franklins as occupying more than half of the shorter dimension of the building, with two or three shops between it and the corner; and numbers of shops occupying the longer dimension. The artist had placed the name and slogan "FRANKLINS no frills" on the portion of the building to be occupied by Franklins, and a number of indications of what the other shops might be.

7. I do not think a reasonable person, receiving the brochure, would necessarily assume that the particular shops labelled in a particular way would turn out to be shops of that particular kind when the centre opened; but I think these labels were intended to indicate, in a general way, the nature of the tenancies anticipated, and would have been so understood by most recipients of the brochures. Some of the labels are not very clear, but those above shops on the upper level suggest that they might include: a video shop, a chemist shop, an agency for computers, a drapery, a hairdresser, a shop selling soft drinks, a shop selling artwork, a baker's shop and a health store. On the lower level, provision appears to have been made, as indicated by the words appearing on the illustration above shopfronts, for professional rooms, for solicitors, for a framing shop, for a store selling camping goods, and for other shops the descriptions of which I find illegible.

8. Below the illustration, the following appears in block letters:

"BAYSIDE. THE SHOPPING CENTRE THAT CATERS FOR ALL YOUR NEEDS
FRANKLINS. MAJOR TENANT PLUS THIRTY SPECIALTY SHOPS
. UNDERCOVER CAR PARKING
. AIR CONDITIONED
. FLEXIBILITY OF SPACE TAILORED TO SUIT INDIVIDUAL NEEDS
. ATTRACTIVE RENTALS
. EASY ACCESS
. CENTRALLY LOCATED IN THE HEART OF WYNNUM LEASING NOW)"

9. Apart from these details, the brochure was endorsed with the name of Hillier Parker as leasing agent, and it contained a list of numbered tenancies, from one to 34, with an indication of the area of each of these shops. The list did not differentiate between the upper and lower levels, but the back of the brochure contained a floor plan of each of level one and level two, showing that level one contained numbers one to 14 inclusive and level two contained the Franklins supermarket and shops numbers 15 to 34 inclusive. Also, on the back of the brochure, is a diagram indicating that the shopping centre is quite close to Moreton Bay, and a further indication that Hillier Parker is the leasing agent, and a statement of its address and telephone number in Brisbane.

10. Mr Buchanan gave some extremely confused evidence about his initial contact with the shopping centre. He thought it was in November 1987 that he saw the sign which contained Hillier Parker's telephone number and the statement "85 per cent leased". He concluded, that if it was 85% leased before it was built, it would be likely to be successful. He was, at the time, conducting a bay-side business at Birkdale selling hot bread, which was doing very well, and he was thinking of expanding. He telephoned the number given on the sign and had a conversation with a man at Hillier Parker. He did not recall the name of this man, but other evidence suggests it was almost certainly Mr Keller. According to Mr Buchanan, the man assured him "that the centre was already 85% leased and it looked like it would be leased 100% by the opening day." In the telephone conversation, he was told about Franklins and several other shops, and that at least two banks would be going in on the lower level "and that there was going to be a large doctors' surgery set-up which would consist of at least eight different doctors". He was told shop 23 would be "the only hot bread shop in the centre". He asked specifically whether it was "to be the only hot bread shop in the centre that will be making bread and cake and pastry lines on the premises", and was assured it would be.

11. Following this conversation, Mr Buchanan received a letter from Hillier Parker, which is dated 28 August 1987. Mr Buchanan seemed to me to have a genuine difficulty in comprehending, at the time when he was in the witness box, that he could not have had the telephone conversation with a man at Hillier Parker in November 1987 and have received after that conversation a letter which is dated 28 August 1987 (which must be a genuine date, since his own counter-signing of it is dated 16 September 1987). This confusion notwithstanding, I am quite satisfied that Mr Buchanan did see a sign at the site in August, and did telephone Hillier Parker within a few days, when he did have a conversation to the effect of that recounted by him in his evidence. It is quite likely that the sign did not contain the statement "85 per cent leased" which he now recalls, and that that representation was made only on the telephone. I say this because evidence was led from a sign writing firm to show that a "sticker" was placed on the pre-existing sign on 30 October 1987, bearing the words "retail areas 85% leased" and the words "office space available".

12. There was no satisfactory evidence, however, from the second respondent concerning the sign writing originally placed on the sign. That being so, there is a degree of uncertainty as to how the sign read prior to the placing of the stickers on it on 30 October 1987. There is no doubt that a sign had been erected, well prior to that, which did contain the name of Hillier Parker and their telephone number. In the circumstances, it is possible that Mr Buchanan has confused the wording on the sign in August with that which appeared as from 30 October. I am satisfied that he honestly thinks the sign contained the words "85% leased" when he first saw it, and I am satisfied that this representation was made to him on the telephone. I do not accept Mr Keller's denial, and I see nothing improbable in his having made an oral representation some couple of months earlier than the time when he was prepared to commit himself to putting the same representation in writing. Of course, if I had formed a more favourable view of Mr Keller, I would have reached a different conclusion.

13. The letter of 28 August 1987 is addressed to "The Manager Buchanan's Bakery" and is headed "RE: LEASING PROPOSAL - SHOP 23 BAYSIDE SHOPPING CENTRE, BAY TERRACE, WYNNUM". It commences:

"We refer to previous correspondence (there was none) in
respect to the above tenancy and have listed below the terms
and conditions relevant to any proposed lease on the
Landlord's behalf.
Details
Premises: Shop 23 - Bayside Shopping Centre
Proposed Lessee: Terry Buchanan
Vicki Buchanan
. . .
Proposed Lease On completion of development
and Rental which is estimated as being
Commencement Date: February, 1988.
. . .
Deposit: $2,000.00, regarded as a holding
deposit to be forwarded with the
duplicate copy of this Letter of
Intent and made payable to Hillier
Parker ... Trust Account.
In the event of legal documentation being prepared and
not executed by the proposed lessee, the cost of
preparation of this documentation will be deducted
from the deposit held and the remaining funds returned
to the applicant.
Permissible Usage: Hot Bread Shop ...
All other terms and conditions are as per the Landlord's
current Standard Form of Lease and if the above is
acceptable, please confirm by signing and dating the
duplicate copy of this Letter of Intent and returning it to
us along with your cheque for $2,000.00.
The above is subject to the Landlord's ultimate consent.
If we can be of any further assistance in this matter,
please do not hesitate to contact the writer.
Yours faithfully
HILLIER PARKER
R.G. KELLER
RETAIL LEASING DEPARTMENT"

The letter was accompanied by one of the brochures. At the foot of the letter there is provision for the requested signing and dating, and it appears that Mr Buchanan signed it and dated it with the date 16 September 1987. He returned it with the requested holding deposit of $2,000.

14. A question was raised whether Mr Buchanan became bound when he returned the Letter of Intent duly signed. The point was, of course, that if the representation that the centre was 85% leased was not made until 30 October 1987, as Mr Keller's evidence asserted, and if Mr Buchanan was already bound before then, it could be contended that the representation did not induce entry into the lease. There are a number of difficulties about this submission. In the first place, the lease alleged to have been induced by misrepresentation was not a lease from the first respondent to Mr Buchanan. Although he and Mrs Buchanan entered into covenants, the lessee was Buchanan's Bakery (Wynnum) Pty Ltd. A representation made after Mr Buchanan signed the Letter of Intent, but before a formal lease was entered into involving other parties, may well have contributed to the decision to enter into that lease: cf. Contractor Services Pty Ltd v Esanda Finance Corporation Ltd (Sheppard, Pincus and Burchett JJ., unreported, 30 September 1991).

15. An even more fundamental answer to the respondents' argument is that I cannot read the Letter of Intent as constituting a binding agreement. It is to be noted that the heading uses the word "proposal", the lessees are referred to as "proposed", the commencement date is expressly described again as "proposed" and by reference to the undefined concept of the "completion of development" at a date which is merely "estimated" as being some time in February 1988. If all this were not enough, there would still be the fact that the deposit is described as "a holding deposit", and there is express provision for the payment of "the cost of preparation of ... documentation" from it in the event the lease is not executed by the "proposed lessee", but otherwise the holding deposit is to be returned. Finally the Letter of Intent is "subject to the Landlord's ultimate consent". In the light of these many features of the document, it is unnecessary to take up time with a detailed discussion of the principle of law which requires that:

"(I)n order for there to be a valid agreement for a lease,
the essentials are not only for the parties to be
determined, the property to be determined, the length of the
term and the rent, but also the date of its commencement."

I content myself with quoting this statement from the judgment of Lord Denning M.R. in Harvey v Pratt (1965) 1 WLR 1025 at 1027, and referring to what was said by Connolly J. in South Coast Oils (Qld and N.S.W.) Pty Ltd v Look Enterprises Pty Ltd (1988) 1 Qd R 680 at 696.

16. Even if the representation was not made until 30 October 1987, it was plainly intended to operate as an inducement to persons who might be interested in taking up leases of shops in the shopping centre. There is no reason to doubt that it would in fact operate as an inducement, and the reasoning of Wilson J. in Gould v Vaggelas (1985) 157 CLR 215 at 238 confirms that it is appropriate to conclude that it would have played "at least some part in inducing the (applicants) to enter into the (lease)." I would have seen no reason to doubt Mr Buchanan's evidence in this regard, even if I had come to the conclusion that he was mistaken in thinking the representation in question was made before 30 October 1987.

17. It is therefore appropriate to turn, at this point, to the question whether the representation which was undoubtedly made on 30 October 1987 was misleading. The respondents placed emphasis on the fact that the sign referred specifically to retail areas as being 85% leased. It was said that this referred to the upper level only of the two levels for which the shopping centre provided. On that basis, it was said that the statement was accurate, although only just, and only if the areas of the shops for which leases had been arranged, as stated in the Letters of Intent relating to those shops, were accurate. (There was clear evidence that, in a number of respects, areas were changed as the project was built.) But it is unnecessary to pursue these details unless the statement can be fairly limited to the upper level of the shopping centre. It was not disputed in argument that, otherwise, the statement was false.

18. A statement of this kind must be judged according to whether "the court could conclude that a significant number of persons affected might take the words in a meaning which amounted to a false representation. Thus we are not concerned with a search for one meaning which would be conveyed to all": Siddons Pty Ltd v Stanley Works Pty Ltd (1991) 99 ALR 497 at 503. In the same case (at 507) I said:

"I accept it would be enough to show a significant section
of the public would be misled: Pacific Dunlop Ltd v Hogan
[1989] FCA 185; (1989) 23 FCR 553 at 581. And the significant section may
include people whose understanding is not acute."

In the present case, the evidence shows that a number of brochures had been circulated amongst persons who might be interested in taking leases in the shopping centre. Mr Buchanan was just such a person. I think, in the circumstances, these persons would constitute a significant section of the relevant public. They would, in fact, be likely to include the very people at whom the sign was directed - shopkeepers, or aspiring shopkeepers, with some interest in this particular area. After all, the shopping centre had been under construction for some months, and the brochures had been available for a good many months. All these persons would be likely to understand a reference to "retail areas" as a reference to the lower as well as the upper level. The brochure spoke of "thirty specialty shops", a number which could only be arrived at by including the lower level. The brochure did not distinguish in listing the shops between the levels, but rather distinguished according to the areas of the shops and by their numbers which ran consecutively through both levels. The words shown on the represented facade of the building in the illustration which took up a great deal of the brochure clearly showed that the lower level was intended to be used for shops, although it also provided some professional rooms.

19. The terms of the brochure were not accidental. It was conceded by Mr Keller, in cross-examination, that the distinction he was drawing between retail areas upstairs and commercial space downstairs had not been drawn in the early planning of the centre. He said: "No, I think as time progressed we realised that upstairs was for a retail area ... . Initially, we just did the whole concept." He said that the brochure "would have been published in early 1987"; and, when it was put to him that "certainly at the time of the publication of this brochure the thrust of the shopping centre was to describe all of the tenancies as shopping tenancies, specialty shopping tenancies, rather than drawing a distinction between retail space and commercial space", he acknowledged:

"Well, if you read what you say in here, yes, I think you'd have to
agree with that, but, on the other hand, there's a certain amount of
artistic licence with this brochure." It was put to him: "So that what
you say is: a brochure was published that was completely inconsistent
with the marketing strategy that you'd adopted?" He answered: "I guess
we should have policed that brochure a lot better than what we actually
did, but it had the word `professional' down there. No, it's right.
It's contrary to what the plan finished up."

20. Of course, there is nothing uncommon about having some professional chambers in a fundamentally retail building, as Mr Keller conceded. The fact that the area which the brochure described as "specialty shops" was also shown as having some professional rooms would not lead a normal reader of the brochure to excise those rooms from the area he would understand to be comprised within the "retail areas" of the project.

21. The point is also emphasized if attention is paid to the only newspaper advertisement for the shopping centre which was in evidence. This was put before the court by the medium of a photostat copy, which does not show the date of the advertisement. However, it appears to utilize the same artist's illustration utilized for the brochure, and it is reasonable to assume it was published during the period before the shopping centre was finally completed. The advertisement shows prominently the statement "85% Leased". It also says "The Bayside Shopping Centre is almost fully-leased, with Franklins No Frills supermarket, and two dozen speciality shops. But there's room for just a few more ... In particular, we'll welcome you if your business is . Seafood . Jewellery . Clothing . Drapery . Optometrist . Gift Shop . Sports Store . Footwear . Professional Suites". It will be observed that this advertisement does not distinguish between retail areas and professional suites. On the contrary, it includes professional suites in a list which otherwise refers to retail shops. The whole building is described as a "Shopping Centre".

22. In my opinion, bearing these factors in mind, it was seriously misleading to make the assertion which was made by the sticker admittedly placed on the sign on 30 October 1987. It was even more misleading, so far as Mr Buchanan, in particular was concerned. For he had been told expressly that there was going to be a large doctors' surgery complex, with a number of doctors, and at least two banks on the lower level. So far as he was concerned, there was no question of reconciling the sign with the proposition that the lower level might be vacant. In accepting his evidence of these particular representations, which I do having regard to my view of his credit and that of Mr Keller, I am confirmed by a special consideration. It was conceded by Mr Keller in cross-examination that he had made approaches to a group of doctors, whom he had tried to interest in setting up a medical centre in the new shopping complex. This, he said, had not been public knowledge. The fact that Mr Buchanan was able to give evidence that such a representation had been made strongly suggests that Mr Keller had in fact told him about it; otherwise there is no explanation for the coincidence between the representation alleged by Mr Buchanan and the acknowledged private approach by Mr Keller to a group of doctors. A similar situation obtains with regard to the banks. Mr Keller acknowledged that he had approached banks, and a letter is in evidence which he wrote to the Regional Manager of the National Australia Bank on 29 September 1987, the contents of which make it clear there must have been prior negotiations with a fairly precise focus. There was no bank in the shopping centre when it was opened.

23. So far, I have said little about the representation, which Mr Buchanan said was made, that the shop would be the only hot bread shop in the centre that would be making bread and cake and pastry lines on the premises. The evidence shows that a Mr and Mrs Wieland had, in the month before the Letter of Intent was forwarded to Mr Buchanan, made arrangements with Mr Keller to lease shop number 18 in the shopping centre. Their proposed permissible usage was "retail sale of cakes and associated products". Mr and Mrs Wieland had another shop, which was just across the road from the shopping centre, and they would be able to bring freshly baked bread into the shopping centre from their other shop. Mr Keller denied that he knew the location of their other shop, but conceded he knew they had such a shop. I think it is improbable he was not aware that it was nearby. In any case, Mr Keller conceded in cross-examination that it was "exactly right" that Mr and Mrs Wieland indicated that "they proposed to sell some loaves of cold bread". Later in his cross-examination, he qualified this by saying that it was to be "a very small display of cold bread", and that Mr Wieland's "words to me as I recall ... it would be a very small display to complement his existing cake set-up". If it is true that Mr Wieland down-played his involvement with bread so carefully, it would at least be clear that Mr Wieland thought the matter was important. Unless he considered it might be an encroachment on the interests of others, it is difficult to understand why he would minimise an activity to be carried on in his shop when speaking to the leasing agent of the shopping centre.

24. Another curious feature of Mr Keller's evidence on this subject was his insistence that no one had ever asked him whether he would have the only shop in the shopping centre catering for his particular area of trade. I simply do not accept that shopkeepers interested in taking leases would show such insouciance towards possible competition.

25. I am satisfied that Mr Buchanan did ask the question he says he asked and did receive the reply , in substance, which he says he received. I think it was misleading, although it was literally accurate. It was a half-truth. I think to answer a specific inquiry with such a half-truth, at a time when the real position was well known to Mr Keller, since he had just negotiated arrangements for the lease of the other shop, was misleading.

26. In the event, Mr and Mrs Buchanan went ahead with the proposal to lease shop 23. It was a miserable failure. Possibly, persons interested in running shops of this kind thought the same, for Hillier Parker were unable to find another tenant during a long period after Mr and Mrs Buchanan had vacated the shop and brought these proceedings.

27. While liability was much disputed, there was no real dispute about the relief to which the applicants would be entitled if they made out their case. As I have concluded that the second respondent, whilst acting as agent of the first respondent, contravened s. 52 of the Trade Practices Act 1974, and that the contraventions and each of them contributed in a significant way to the applicants' entry into the lease, I think it is appropriate to make an order under s. 87 declaring the lease void ab initio. In addition, the applicants are entitled to an award of damages in respect of their losses caused by the contraventions. The claim, in this respect, is relatively modest. The bulk of it is the loss sustained by entry into a chattel lease for the purposes of the failed business. There are also a number of miscellaneous items. It is unnecessary to go into the detail because counsel, in their written submissions, did not dispute the appropriateness of these figures, which total $57,269.10. To that sum should be added an appropriate amount of interest. The applicants are content to seek an award of interest at 15%, and I can see no reason for awarding less. Accordingly the applicants are entitled to judgment against both respondents in the sum of $57,269.10 together with interest under s. 51A of the Federal Court of Australia Act 1976, fixed at 15 per cent per annum. I direct that short minutes be brought in, on a date to be fixed by the Registrar, showing the total sum for which judgment should be entered. The respondents must pay the applicants' costs. The cross-claim, brought by the first respondent against the applicants, should be dismissed with costs.

28. That leaves the second cross-claim, brought by the first respondent against the second respondent. In my opinion, this claim must succeed. The second respondent was an agent for reward, and the whole of the conduct by reason of which I have granted the applicants' claim for relief was conduct engaged in by the agent. The agent was bound to show the skill and care to be expected of a professional agent, for it was engaged for reward as having expertise in the particular area of shopping centre development and leasing. See Bowstead on Agency 15th ed. article 42. Appropriate skill, care and diligence were not exercised when the position was misrepresented to the applicants. Accordingly, the second cross-claimant is entitled to an indemnity in respect of the amount payable to the applicants, its costs and any costs it is obliged to pay the applicants, and the damages it has sustained, totalling $73,194.95 as at 23 October 1991, together with additional interest to the date of judgment. I direct that the second cross-claimant bring in short minutes of appropriate orders in respect of the second cross-claim on a date to be fixed by the Registrar.