Rosebanner Pty Ltd & Anor v EnergyAustralia [2011] NSWCA 28 (25 February 2011)

This decision has been amended. Please see the end of the decision for a list of the amendments.

Case Title:	Rosebanner Pty Ltd & Anor v EnergyAustralia

Medium Neutral Citation:	[2011] NSWCA 28

Hearing Date(s):	15 & 16 March 2010

Decision Date:	25 February 2011

Jurisdiction:

Before:	Allsop P, Giles JA, McColl JA

Decision:	1. Appeal dismissed. 2. Appellants pay the respondent's costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:	TORT - Sydney County Council put pole for transmission line on Crown land - land subsequently in private ownership - whether existence of pole a trespass against owner - whether Sydney County Council had authority to place pole on land - whether EnergyAustralia as successor had authority to keep pole on land - no trespass. CONTRACT - formulation - whether contract made to remove pole within stated period - on facts, not made.

Legislation Cited:	Crown and Other Roads Act 1990; Electricity Act 1945; Electricity Supply Act 1995; Electricity Supply Amendment (Protection of Electricity Works) Act 2006; Energy Services Corporations Act 1995; Gas and Electricity Act 1935, ss 51, 55; Municipal Council of Sydney Electric Lighting Act 1896, s 14; Local Government Act 1919,ss 382, 383; Public Roads Act 1902; Public Works Act 1912, s 80; Real Property Act 1900; Sydney Electricity Act 1990, s 53.

Cases Cited:	Asciano Services Pty Ltd v Chief Commissioner of State Revenue (NSW) [2008] HCA 46; (2008) 235 CLR 602; Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2007] HCA 38; (2007) 252 CLR 1; Bombay Province v Bombay Municipal Corporation (1947) AC 58; Brighton v Dungog Municipal Council (1971) 15 LGR (NSW) 74; Bropho v Western Australia (1990) 171 CLR 1; Commissioner of Main Roads v North Shore Gas Co Ltd [1967] HCA 41; (1967) 120 CLR 118; Edelsten v Health Insurance Commission (1990) 27 FCR 56; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Gallen v Strathfield Municipal Council (1943) 1 NSWLR 122; Mills v Stokman [1967] HCA 15; (1967) 116 CLR 61; North Sydney Municipal Council v Housing Commission of New South Wales (1948) SR (NSW) 281; Oertel v Horden (1902) 2 SR (NSW) Eq 37; Presbyterian Church (NSW) Property Trust v Scots Church Development [2007] NSWSC 676; (2007) 64 ACSR 31; Quirindi Shire Council v Gigli (1985) 3 NSWLR178; Randwick Municipal Council v Commissioner for Government Transport (1967) 1 NSWLR 428; Thompson v Australian Telecommunications Commission (Hodgson J, 18 July 1988, unreported).

Texts Cited:

Category:	Principal judgment

Parties:	Rosebanner Pty Ltd - First Appellant Twenty-First Properties Pty Ltd - Second Appellant EnergyAustralia - Respondent

Representation

- Counsel:	Counsel: J J Webster SC & N Green - Appellants M J Leeming SC & C H Withers - Respondent

- Solicitors:	Solicitors: Stephen Wawn & Associates - Appellants Clayton Utz - Respondent

File number(s):	2009/00298238

Decision Under Appeal

- Court / Tribunal:

- Before:	Ward J

- Date of Decision:	20 February 2009

- Citation:	Rosebanner Pty Ltd v EnergyAustralia [2009] NSWSC 43

- Court File Number(s)	SC 1144/04

Publication Restriction:	No

"13 The status of the subject land (in particular, whether the unformed Bate Bay Road was a public road) is relevant when determining the source of any statutory power to install electricity infrastructure thereon. There is nothing to suggest that the status of the subject land changed between 1954 and 1982/1983. Both parties submitted at various times in the hearing that by 1982/83 the land constituting the unformed Bate Bay Road was a public road (EnergyAustralia's closing written submissions, para 4, the Lyons entities opening submissions para 7). Certainly, as at the time the road was formally closed in 1992, the logical inference to be drawn was that the road had at some stage before then been opened as a public road."

"1A. The Trial Judge erred in finding that, on the evidence before the Court, the unformed "Bate Bay Road" was a public road (at [31], [39], [76], [86]".

"Parish Sutherland, County Cumberland, Woolooware Road between Captain Cook Drive and Woolooware Bay. (Council reference DC 779/Lot 1/CRSL) (Rds 73-202.[sic]

NOTE: Declaration is restricted to the surface and to a depth of 20 metres below the surface."

"Road 20.115 metres wide generally north of Lot 1, DP 226839 between Woolooware Road and Captain Cook Drive at Woolooware, Parish Sutherland (Sheet NE), County Cumberland. MH90H106."

"Cronulla Sutherland Rugby Leagues [sic] Club, part Bate Bay Road between Woolooware Road North and Captain Cook Drive and being generally north of Lot 1, DP 226839, at Woolooware, Parish Sutherland, County Cumberland, not being land under the Real Property Act. MH 901H06."

the resumption in August 1954 was not of land part of which became lot 1234, and the primary judge was in error in so seeing it; and

39It might be inferred from the road closure in March 1992 that the relevant part of what became lot 1234 was a public road, for a reason of which there was no evidence, on the basis that the Department and the Minister are unlikely to have been mistaken as to the status of the relevant land. The respondent so submitted.

40However, the resumption for the westerly extension of Bate Bay Road in 1954 suggests that the part of what became lot 1234 was not then a public road, and dedication thereafter is unlikely because Bate Bay Road became a through road. We do not think that it can properly be found that the part of lot 1234 on which the pole was erected was a public road in 1982-83. It is as likely, or more likely, that the road closure in March 1992 was due to misunderstanding, perhaps confusion with Woolooware Road north of Captain Cook Drive, as that it reflected the correct status of that part of the land.

41The primary judge can readily be excused for her error. In her Honour's recording at [13] of the common submissions that by 1982-83 the unformed Bate Bay Road was a public road, the road was taken to include the part of what became lot 1234 on which the pole stood as its straight line prolongation to meet Woolooware Road. Regrettably, there was no survey evidence to assist her Honour in collating the various plans, in particular to demonstrate the land within the metes and bounds description in the August 1954 resumption; nor did the appellants assist her Honour by a submission as to the correct understanding of the metes and bounds description and DP 109853. Only in preparation for the appeal, bringing the application to amend the grounds of appeal to include ground of appeal 1A, did the appellants come to appreciate that the metes and bounds description in the August 1954 resumption did not include that land.

42The correct position, on the evidence, is that the part of what became lot 1234 on which the pole was erected was Crown land and not a public road.

43The appellants' submissions on appeal came to include that, although not a public road, the part of what became lot 1234 on which the pole was erected was a Crown road. The reasoning was no more than that there was a road closure in March 1992 and so there must have been a road; it was Crown land; and so it must have been a Crown road. It is not clear to us why the appellants made the submission; their interests seem to call for eschewing any suggestion of a road.

44The submission did not explain a Crown road. The statutory expression is first found in the Crown and Other Roads Act 1990. The definition in s 3(1), so far as applicable to a then existing situation, requires that a road or land was vested in the Crown "and indicated on official maps or plans as being reserved for or left as a road" but was not notified, proclaimed or dedicated as a public thoroughfare or public way before the commencement of the Act.

45It appeared common ground that there was not a formed road, and there was no basis in the evidence for that part of what became lot 1234 being other than undifferentiated Crown land. The Crown and Other Roads Act was not in force in 1982-83. If the appellants intended to suggest an equivalent notion of a Crown road prior to the Act, see for example the definition of "road" in the Public Roads Act 1902 which included "any land defined reserved or left ... as a road in any subdivision of Crown land or in the measurement or granting of Crown land as indicated upon the official plans of the same", there was no evidence of indication on an official plan as being defined, reserved for or left as a road. The road closure in March 1992 did not found the inference of a Crown road any more than an inference of a public road.

46Having found that the part of what became lot 1234 on which the pole was erected was a public road, on the understanding that it was erected on the unformed Bate Bay Road, the primary judge held (as we have said) that erection of the pole was authorised under one or both of s 14 of the Municipal Council of Sydney Electric Lighting Act ("the 1896 Act") or the Public Works Act ("the 1912 Act").

"The trial Judge erred at law in determining that the 'presumption of regularity' applied to the validity of the emplacement of the electrical infrastructure on the subject lands when they were constructed on a Public Road."

48This ground was relevant to the primary judge's reliance on s 80 of the 1912 Act. Without the benefit of a ground of appeal, the appellants' submissions challenged her Honour's reliance on s 14 of the 1896 Act for reasons other than the status of the land as a public road. The respondent took no objection to this.

49In 1982-83 the Sydney County Council had the powers conferred on the Municipal Council of Sydney by the 1896 Act (see at [62], below). It was not in issue that the transfer to it of the Municipal Council of Sydney's powers included the power under s 14, which gave power to -

" ... lay down and place under or over any street any electric lines; and from time to time repair, alter or remove the same; and from time to time repair, alter or remove the same ... and may in any such street erect any posts, pillars, standards, lamps, and other works, and do all other acts which they may from time to time reasonably deem necessary for supplying electricity; and may lay any electric line, branch, or other apparatus from any main or branch electric line into, through, or against any place or building for the purpose of lighting the same. Provided that nothing herein shall authorise or empower the Council to construct or place any works into, through, against or in any place, building or land not dedicated to public use without the consent of the owners and occupiers thereof, except that the Council may at any time make entry, and construct and place any new works instead of such works as shall have been lawfully constructed or placed, and may repair or alter any works so constructed or placed."

50The primary judge held that what was understood to be the then unformed Bate Bay Road was within the definition of "street" in the 1896 Act. Her Honour held that, it having been resumed for use as a public road, there was no requirement for the owners and occupiers to consent to constructing or placing works in the land. Section 18 of the 1896 Act required certain notice to statutory authorities, which her Honour implicitly held had been given. Hence the erection of the pole had been authorised.

51This can not stand when the part of what became lot 1234 on which the pole was erected was not the unformed Bate Bay Road, and was not a public road.

52The appellants submitted that s 14 of the 1896 Act did not apply so far as it also authorised erection of the pole on land not dedicated to public use, because that required the consent of the owner and occupier and there was no evidence of the consent of the Crown. A better submission might have been that the reference to land not dedicated to public use was in the proviso to a power referable to a street, and there was relevantly no street: perhaps this was not said because of the submission that the part of what became lot 1234 on which the pole was erected was a Crown road.

53The respondent relied on the presumption of regularity for consent of the Crown. We doubt that in the present case the presumption can bridge the evidentiary gap. There was confusion as to the status of the land, including some 1982 documents assuming a fee simple in the Sutherland Shire Council, undermining likely regularity by the Sydney County Council obtaining Crown consent to erection of the pole. The evidence was that the Sydney County Council ordinarily gave notice of its works to a number of authorities, including the Metropolitan Water Sewerage and Drainage Board, the Postmaster General and the local council but, so far as this might have supported notice and non-objection indicating Crown consent (which is dubious), from file notes at the time it was thought that the Council had the fee simple, and notice seeking Crown consent may be doubted.

54It does not matter, since the prerequisite of a street is absent. The definition of "street" in the 1896 Act was "any square, court, alley, highway, lane, road, thoroughfare or public place or passage". The respondent submitted that a Crown road was a street within s 14, but we do not accept that there was a Crown road. Even if it had been, it was not formed and would not have been within the definition.

55At the heel of the hunt the appellants put a further submission that s 14 of the 1896 Act did not apply because the pole was erected on Crown land. We refer to and consider that submission in relation to the 1912 Act, at [66]-[80] below. Whether or not it is accepted, s 14 did not provide authority for the erection of the pole.

56The primary judge said that cl 4B of Ordinance 20 made ss 382 and 383 (and other provisions) of the Local Government Act 1919 applicable to the Sydney County Council. Section 382(1) gave power to construct works for the supply of electricity. Section 383(1) conferred the powers of a constructing authority under the 1912 Act for that purpose.

57Section 80 of the 1912 Act provided that for the carrying out of any public work a constructing authority and all persons acting under the constructing authority -

"(a) May enter into and upon the lands and grounds of any person whomsoever, and ... take and appropriate, for the purposes herein mentioned, such parts thereof as may be necessary and proper for the laying out, making and using any public work, and all other works, matters and conveniences connected with;

(i) And generally may do all other acts necessary for constructing, reconstructing, making, maintaining, altering, repairing, adding to, extending, and using such public work."

58Section 86 of the 1912 Act provided that if the public work "crosses any public highway or carriage road", it should not be carried across, over or under any such road unless, the Governor had approved "the proposed place and mode of such crossing and the immediate approaches thereto, and all other necessary works connected therewith".

59It appears that at trial the appellants did not dispute that s 80 could provide authority for erection of the pole, but submitted that there was no evidence of the Governor's approval as required by s 86. The primary judge accepted that the presumption of regularity applied, whereby the absence of specific evidence of approval was overcome; her Honour also appeared to accept that non-compliance with s 86 would not mean that the erection of the pole was unauthorised.

60No ground of appeal challenged that s 80 of the 1912 Act was available as a source of authority for erection of the pole. Ground of appeal 2 was a challenge to the primary judge's application of the presumption of regularity to find approval by the Governor as required by s 86. Her Honour's apparent acceptance that the erection of the pole was authorised despite absence of the Governor's approval was passed over.

61Compliance or non-compliance with s 86 of the 1912 Act is of no consequence, since the part of what became lot 1234 on which the pole was erected was not a public highway or a carriage road. Subject to the matters next considered, the primary judge's holding that the erection of the pole was authorised under s 80 of the 1912 Act would stand.

62The primary judge was incorrect in her starting-point of cl 4B of Ordinance 20, at least for authority to erect the pole in 1982-83. Clause 4B was inserted in Ordinance 20 in 1990. Prior to that time the Gas and Electricity

Act 1935 transferred and delegated to the Sydney County Council the powers of the Municipal Council of Sydney under the 1896 Act (s 51(1), s 55(1)) and provided that certain sections of the Local Government Act , relevantly s 383 but not s 382, applied to it (s 55(3)). In 1955 the Shire of Sutherland became part of the Sydney County District. This brought the same position in 1983-83 as the misplaced reliance on cl 4B of Ordinance 20.

63Without the benefit of a ground of appeal or attention in their written submissions, the appellants submitted that the 1912 Act did not apply to any works carried out after 1935. Again, the respondent did not object.

64As best we understand it, the point of the submission was that s 383 only conferred the powers of a constructing authority for the purpose of works "under this Part", that is, under Pt XIV of the Local Government Act . However, the conferral of the powers of a constructing authority on the Sydney County Council was for works carried out in the exercise of its power to supply electricity. It was not necessary that the works be under Pt XIV of the Local Government Act .

65In Gallen v Strathfield Municipal Council (1943) 1 NSWLR 122 it was held, approving Brighton v Dungog Municipal Council (1971) 15 LGR (NSW) 74, that the combined operation of ss 382 and 383 of the Local Government Act and s 80 of the Public Works Act entitled a council to enter private land and construct and maintain sewerage and drainage pipes without first resuming an easement, subject to a liability to pay compensation. These decisions were applied in Quirindi Shire Council v Gigli (1985) 3 NSWLR 178. The appellants accepted this position.

66However, again without the benefit of a ground of appeal or attention in their written submissions, and only in submissions in reply, the appellants referred to Randwick Municipal Council v Commissioner for Government Transport (1967) 1 NSWLR 428, in which Street J held at 438 that certain sections of the Local Government Act , including ss 382, did not authorise entry on the land of a body representing the Crown and the building of a dam, because the provisions did not bind the Crown. They submitted that s 382 "will not of itself authorise construction in respect of land of the Crown", and that the decision was "applicable under s 14 of the 1896 Act". The application under s 14 was not explained.

67The respondent again did not object to this accretion to the appeal. It submitted that in Randwick Municipal Council v Commissioner for Government Transport s 383 "does not appear to have been in the forefront of the argument", and that the decision could not stand with Gallen v Strathfield Municipal Council and Quirindi Shire Council v Gigli.

68Gallen v Strathfield Municipal Council and Quirindi Shire Council v Gigli were both concerned with works on private land, not Crown land, and the lastmentioned submission was unsound.

69The relevant holding in Randwick Municipal Council v Commissioner for Government Transport was as to s 382 of the Local Government Act , the provision giving power to construct works, rather than s 383 conferring facilitative powers. The reasoning would extend to those powers, and Street J said at 439 that s 383 would not "extend the scope of any power granted elsewhere to make such power binding on the Crown".

70However, the question in the present case is not whether the power to construct works for the supply of electricity given by s 382 extended to Crown land, but whether the power to supply electricity transferred and delegated to the Sydney County Council by ss 51 and 55(1) of the Gas and Electricity Act , and the accompanying powers of a constructing authority under s 80 of the 1912 Act via s 383 extended to construction of electricity works on Crown land. The source power is that of the Municipal Council of Sydney in the 1896 Act; thus, reverting to the submission that Randwick Municipal Council v Commissioner for Government Transport was applicable under s 14 of the 1896 Act, whether it applied does indeed arise. But Randwick Municipal Council v Commissioner for Government Transport does not answer the question.

71In Randwick Municipal Council v Commissioner for Government Transport Street J examined the Local Government Act to ascertain "whether ... it can be affirmed that the beneficent purpose [of the relevant sections] must be wholly frustrated unless the Crown were bound" (at 437). The 1896 Act, or the 1896 Act as taken up in the Gas and Electricity Act , are not in their terms or their purpose in like position to the Local Government Act . Moreover, the test of complete frustration unless the Crown is bound, taken by his Honour from Bombay Province v Bombay Municipal Corporation (1947) AC 58 at 63 as applied in North Sydney Municipal Council v Housing Commission of New South Wales (1948) SR (NSW) 281, is no longer the law.

72In Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 the High Court reconsidered the rule that statutory provisions worded in general terms are to be construed as prima facie inapplicable to the Crown. The joint judgment of Mason CJ and Deane, Dawson, Toohey, Gaudron and McHugh JJ referred to the test variously expressed in Bombay Province v Bombay Municipal Corporation and other cases as "an eye of the needle test" (at 17). Their Honours saw it as inappropriate to modern conditions where there were a "myriad of governmental, commercial and industrial instrumentalities covered by the shield of the Crown" (at 19), and found unconvincing as an argument for preserving "such an inflexible and stringent rule" (at 20) that the legislature would ordinarily have proceeded conformably with the rule. They said (at 21-2) -

"Once it is recognized that the rule does not, of itself, provide an impregnable foundation for its own observance, there can remain no basis in principle for unqualified insistence upon the rule as an inflexible one, with the stringent implications which recent cases have accorded it. In other words, once it is accepted that a legislative intention to bind the Crown may be disclosed notwithstanding that it could not be said that that intention was 'manifest from the very terms' of the statute or that the purpose of the statute would otherwise be 'wholly frustrated', fundamental principle precludes confinement of the general words which the legislature has used in a way which will defeat that intention. Such a legislative intent must, of course, be found in the provisions of the statute - including its subject matter and disclosed purpose and policy - when construed in a context which includes permissible extrinsic aids. If such a legislative intent does appear from the provisions of a statute when so construed, it must necessarily prevail over any judge-made rule of statutory construction including the rule relating to statutes binding the Crown. Indeed, even if such a rule of statutory construction had been laid down in completely unqualified and mandatory terms by legislative provision, it would necessarily give way to the provisions of a subsequent enactment which, notwithstanding the earlier provision, disclosed a contrary legislative intent since the subsequent enactment would represent a pro tanto repeal or amendment of the earlier provision.

It follows from what has been said above that considerations of principle preclude recognition of an inflexible rule that a statute is not to be construed as binding the Crown or Crown instrumentalities or agents unless it manifests a legislative intent so to do either by express words or by "necessary implication" in the limited and stringent sense explained above. If such a legislative intent appears when the relevant legislative provision is construed in a context which includes the presumption against the Crown and its instrumentalities or agents being so bound, that legislative intent must, as a matter of principle, prevail. That being so, earlier judicial statements to the effect that it must be manifest from the very terms of the statute itself that it was the legislative intent that the general words of a statute should bind the Crown, or that it must be apparent that the purposes of the statute would be wholly frustrated unless the Crown were bound, should be read as applying to the context of the particular statutory provisions involved in the cases in which they were made. Such statements should no longer be seen as precluding the identification of such a legislative intent in other circumstances or as warranting the overriding of a legislative intent which can be discerned in the provisions of a statute when construed in context."

73Recognising that the stringent test had previously been established, their Honours said (at 23) that -

" ... it may be necessary, in construing a legislative provision enacted before the publication of the decision in the present case, to take account of the fact that those tests were seen as of general application at the time when the particular provision was enacted. If, however, a legislative intent that the Crown be bound is apparent notwithstanding that those tests are not satisfied, that legislative intent must prevail."

74Their Honours also pointed out (at 23-4) in the context of subsequently enacted legislation but equally applicable to a legislative provision enacted prior to the decision, that -

" ... notwithstanding the absence of express words, an Act may, when construed in context, disclose a legislative intent that one of its provisions will bind the Crown while others do not and that a disclosed legislative intent to bind the Crown may be qualified in that it may, for example, not apply directly to the Sovereign herself or to a Crown instrumentality itself as distinct from employees or agents. Always, the ultimate questions must be whether the presumption against the Crown being bound has, in all the circumstances, been rebutted, and, if it has, the extent to which it was the legislative intent that the particular Act should bind the Crown and/or those covered by the prima facie immunity of the Crown."

" ... the presumption cannot be put any higher than this: that the Crown is not bound by statute unless a contrary intention can be discerned from all the relevant circumstances. As the Court must determine whether the legislature intended (or would have intended had the question been addressed) that the statute should affect the activities of the Executive Government, the circumstances which properly relate to that question must be considered. Those circumstances include the terms of the statute, its subject matter, the nature of the mischief to be redressed, the general purpose and effect of the statute, and the nature of the activities of the Executive Government which would be affected if the Crown is bound."

76His Honour did not share the plurality's regard to the earlier sway of the stringent test, saying (at 28-9) -

"I would add a brief mention as to the effect of the reasons for judgment in this case upon the interpretation of statutes earlier enacted. In my respectful opinion, it would be a legal fiction to impute to the legislatures of this country or to their parliamentary counsel an intention fluctuating with the changing formulations of the presumption by the courts of this country and of England. The question whether the Crown is bound by a statute arises ordinarily in reference to statutes enacted without conscious animadversion to the strength of the presumption and, if it be right to look at all the relevant circumstances to determine what the intention of the legislature was or to determine what intention ought fairly to be imputed to the legislature when it enacts a statute in the future, equally it must be right to look at all the relevant circumstances when interpreting a statute enacted in the past."

77This approach to whether the Crown is bound has since been affirmed, for example in the joint judgment of Gleeson CJ and Gummow, Hayne, Heydon and Crennan JJ in Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2007] HCA 38; (2007) 252 CLR 1.

78In the present case, the supply of electricity to a large urban population was in the 1890's a beneficial and important governmental function, and has remained so. It requires an extensive infrastructure, and the clear provisions for construction of works on public places (s 14 of the 1896 Act) and "the lands and grounds of any person whomsoever" (s 80 of the 1912 Act); which includes public highways and carriage roads, see s 86) should not readily be inhibited by excluding Crown land if it is necessary for the infrastructure.

79As to the 1896 Act, the Crown in many of its governmental, commercial and industrial manifestations could be expected to be an electricity customer, entitled to a supply (s 27) and subject to contracts for supply (s 21), care of meters (s 24) and entry on Crown land for inspection and testing (s 36). The Postmaster General's telegraph and telephone lines and other public works are not to be injuriously affected (s 17), and the Secretary for Public Works and the Postmaster General (amongst others) are to be given notice of proposed works in, under, along or across any street, highway or public bridge, on which a telegraph, telephone or railway line might be (s 18). Under the 1912 Act, the Governor must consent to a public work crossing a public highway or carriage road. Land so affected may be Crown land.

80Crown land is held ultimately for the benefit of the populace. If the public (as to roads, for example) and private landholders are liable to entry and construction of electricity works in the exercise of the important governmental function, a legislative intent can readily enough be seen that the Crown should similarly be liable to entry and construction of electricity works on the land held for the benefit of the populace. Further, the Crown in its manifestations abovementioned also benefits from the construction of the electricity works. In our opinion, the intent is apparent that the Crown was bound by combined effect of the 1896 Act and s 80 of the 1912 Act as taken up and supplemented in the Gas and Electricity Act , so that the relevant powers extended to construction of electricity works on Crown land.

82The respondent became the successor to the Sydney County Council by a series of steps, each by legislation.

83In 1990 Sydney Electricity, a body corporate constituted under the Sydney Electricity Act 1990, succeeded under that Act to the functions of the Sydney County Council. The Sydney County Council was dissolved, and its assets were vested in Sydney Electricity and its rights and liabilities became the rights and liabilities of Sydney Electricity: Schedule 5, cll 3, 4.1(a), (b).

84In 1995 the assets, rights and liabilities of Sydney Electricity were transferred to MetNorth Energy, a body corporate constituted under the Electricity Act 1945, by an order made under s 53A(2) of the Sydney Electricity Act .

85MetNorth Energy was replaced by a different MetNorth Energy constituted under the Energy Services Corporations Act 1995, and in 1996 the assets, rights and liabilities of the first MetNorth Energy were transferred to the second MetNorth Energy by an order made under s 7 of that Act. The second MetNorth Energy then changed its name to EnergyAustralia.

86These steps were accompanied by legislative statements of the powers of the successive entities. Ultimately the powers of the respondent were conferred by the Electricity Supply Act .

87By s 51 of the Electricity Supply Act , the respondent is "the owner of its electricity works, whether or not the land in, on or over which they are situated is owned by [it]". By s 65, it is an offence to interfere with its electricity works unless authorised, and by s 65A it is an offence to enter, climb or be on its electricity works unless authorised or with a reasonable excuse.

88Section 54(1) gives an authorised officer of the respondent power to "enter upon any premises for the purpose of exercising any function conferred or imposed on [it] by or under this or any other Act", with particular instances then stated including -

"(b) installing, extending, maintaining, repairing or removing electricity works."

(1) This section applies to work connected with the erection, installation, extension, alteration, maintenance and removal of electricity works.

(2) For the purpose of exercising its functions under this or any other Act or law, a network operator:

(b) in particular, may carry out any such work on a public road or public reserve.

90The primary judge recorded that the appellants submitted that, even if the original erection of the pole in 1982-83 was lawful, its continued presence on what became lot 1234 became unlawful when Sydney Electricity succeeded to the Sydney County Council in 1990; and that it remained unlawful thereafter during the successive vestings of the pole, as part of an electricity infrastructure, ultimately in the respondent including at and after the time they purchased the land in April 1998. Her Honour recorded the respondent's submissions that, if the pole was lawfully erected in 1982-83, no separate authority was required for its continued presence on the land since it was and should be regarded as a fixture; alternatively, that the successive legislation gave authority to keep the pole on the land through their provisions whereby the entity, ultimately the respondent, had the function of providing and maintaining works for the supply of electricity.

91The primary judge described and considered the parties' submissions concerning the intermediate period until the Electricity Supply Act, including the appellants' submission that when Sydney Electricity succeeded to the Sydney County Council but did not have the powers of a constructing authority under the 1912 Act it became unlawful for Sydney Electricity to leave the pole in place on the land without an easement. Her Honour said -

"111. I consider that the Sydney Electricity Act , by giving Sydney Electricity the function of "the provision and maintenance of works for the supply of electricity" (s 5(1)(b)) and by transferring to it the assets of Sydney County Council (Schedule 5 s (4)) (which included the electricity infrastructure), demonstrated sufficient legislative intention that Sydney Electricity have the authority to maintain those assets in place where they had previously been lawfully installed, notwithstanding the absence of an express power of entry onto private lands for that purpose."

92Without specific attention to the position of the first MetNorth Energy, the primary judge said -

"112 Even, if there were some question as to the position between 1990 and 1995, the 1995 legislation in my view clearly authorises entry onto lands for the purposes of maintaining electricity works and is not limited to entry onto public land.

113 ... s 54(1) of the Electricity Supply Act clearly gives EnergyAustralia the right to enter premises for the purpose of exercising its functions in relation to the supply of electricity, including "maintaining" electricity works. I consider that to be sufficient indication of legislative intention for present purposes.

114 Therefore, even if the Sydney Electricity Act 1990 did not by implication do so, in my view, the Electricity Supply Act (by vesting ownership of the electricity infrastructure in EnergyAustralia (s 51) and by giving EnergyAustralia the power to enter onto premises, inter alia, to maintain electricity works for the purposes of exercising its functions under that or any other Act in circumstances where one of the principal statutory functions of EnergyAustralia was to establish, maintain and operate facilities for the distribution of electricity (s 9(2) Energy Services Corporations Act 1995)), impliedly conferred on EnergyAustralia a licence to keep in place not only any electricity infrastructure installed by it under the Act but also electricity infrastructure lawfully installed by its predecessor, even where that infrastructure was on private land."

93Grounds of appeal 1, 3, 4, 5, 6 and 7 were directed to continued authority for the pole. They were -

"1. The trial Judge erred at law in determining that the Sydney Electricity Act 1900(NSW) gave authority to Sydney Electricity to maintain assets in a place where they had previously been installed under another legislative context (at [111])."

3. The Trial Judge erred at law in determining that the combination of the conferring of a 'function' upon a new public authority and the transfer to it of the assets of a former public authority has the effect of empowering the later authority to maintain (keep in place) those assets.

4. The Trial judge erred at law in determining that the Electricity Supply Act 1995 (NSW) gave EnergyAustralia by implication a licence to keep in place Electricity Infrastructure lawfully installed by its predecessor (at [113]).

5. The Trial Judge erred at law in failing to determine that the lawfulness of the erection of the electrical infrastructure in1983 based upon the 'presumption of regularity' was not applicable to the land after the conversion of the title to the Real Property Act 1900 (at [111]]).

6. The Trial Judge erred at law in failing to determine that the Sydney Electricity Act did not grant to Sydney Electricity the right to maintain (keep in place) electrical facilities that had been installed prior to the enactment of the said Act.

7. The Trial Judge erred at law in failing to determine that the Electricity Supply Act by its terms did not grant to EnergyAustralia the right to maintain (keep in place) Electricity Infrastructure that had been erected prior to 1990."

94The appellants' submissions under ground of appeal 5 were founded on s 42 of the Real Property Act . They had not pleaded reliance on s 42, and had not put like submissions to the primary judge. The respondent submitted that they should not be permitted to rely on the ground. We will deal separately with ground of appeal 5 in due course.

95It is not necessary to consider, under the respondent's notice of contention, whether the lawful erection of the pole on what became lot 1234 sufficed to entitle the successors to the Sydney County Council to keep it on the land. There is much to be said for a direct affirmative answer to that question of entitlement, since it would be absurd that an electricity authority could lawfully place electricity infrastructure on land but the landowner could immediately remove it or require its removal. It may be noted that in Gallen v Strathfield Municipal Council the court referred (at 129) to entitlement to construct and maintain sewerage and drainage pipes, and that in Quirindi Shire Council v Gigli Mahoney JA said (at 181) -

"If the Council be empowered to construct the sewerage work on the private land of the plaintiffs, it is in my opinion entitled to do what is incidental to the maintenance of it. Mr Downes, I think, used what he submitted was the absence of a power to keep the works in place as a reason for limiting the extent of the Council's power. I am satisfied that, whether by the express terms of the sections or by implication, the works once constructed may be relevantly maintained in place by the Council and the plaintiffs would not be entitled to remove them."

96See, however, Thompson v AustralianTelecommunications Commission (18 July 1988, unreported) where Hodgson J (as Hodgson JA then was) considered that an entitlement to keep a cable in place was lost when the Act empowering its placement and retention was repealed, and looked to the substituted Act for the entitlement to keep the cable in place (and found it). In our view, it is sufficient to go directly to legislative authority additional to the lawful erection of the pole.

97Nor is it necessary to consider continued authority for the pole prior to the appellants' purchase of lots 1234 and 1235 in 1998. For the reasons which follow, at and from that time the respondent was entitled to keep the pole on the land, and there was no trespass in its continued presence on the land.

98The pole became vested in the respondent as successor to the Sydney County Council. It was owned by it as part of its electricity works ( Electricity Supply Act , s 51). The respondent had the power to alter or maintain (in the sense of look after) it (s 45), and was entitled to enter on lot 1234 for the purpose of maintaining or repairing it (s 54(1)(b)). The appellants could not interfere with it (s 65), or even climb on it (s 65A). In respectful agreement with the primary judge, in our opinion this necessarily carried with it an entitlement to keep on lot 1234 an item of the respondent's electricity infrastructure, the pole, originally lawfully erected on the land. The appellants could not remove it or complain that its presence on their land was a trespass.

99The appellants' response to this, as best we understand it, was that what they called the "power of entry" under the Electricity Supply Act was in aid of the functions conferred on the respondent under the Energy Services Corporations Act, and did not extend to entry in connection with electricity works existing prior to 1995. The appellants referred to Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 62-3 to support the proposition that the powers were given to the respondent in aid of its functions. That may be accepted, but s 9(2) of the Energy Services Corporation Act includes in the principal functions of an energy distributor the maintenance and operation of facilities for the distribution of electricity and the supply of electricity. There is no basis for reading down the provisions of the Electricity Supply Act so as to exclude their availability in respect of pre-existing electricity works, and it would not make sense to do so.

100It may be noted that in Thompson v Australian Telecommunications Commission Hodgson J held that the substituted Telecommunications Act 1975 (C'th) sufficiently implied the right to maintain installations in place on private lands taken over from the previous Postmaster General's Department, saying -

"Telecom is in fact given property to the installations on private lands, the 1975 Act gives it the function and the duty to run a system which, at the time it was taken over, included those lines. Section 18 gives it the power to remove, replace, repair and maintain those installations. It also gives Telecom a power to occupy land for those purposes associated with removing, replacing and maintaining installations. In my view, that is sufficient to imply a right in Telecom to maintain the installations on private land."

101The appellants sought to distinguish Thompson v Australian Telecommunications Commission by comparative analysis of the statutory provisions. In our opinion, however, the reasoning is apt and the entitlement is clear in the present case.

102In 2006 there was enacted the Electricity Supply Amendment (Protection of Electricity Works) Act 2006 ("the 2006 Act"). It included inserting in the Electricity Supply Act , as s 53, a provision to the effect that action by an owner or occupier of land did not lie against a "network operator" by reason of the presence in, on or over the land of existing electricity works, or the operation or use of the electricity works, save where there was a registered easement. In the second reading speech the then Minister for Energy said that there was "no clear provision in the Electricity Supply Ac t to protect the presence, operation and use of electricity works on land not owned by the network operator", and that the "ongoing uncertainty" needed to be addressed and hence the new s 53.

103By the transitional provisions, the 2006 Act did not bar the appellants' proceedings. However, the appellants submitted that the 2006 Act in this respect was "clear recognition ... that the present legislation did not 'protect' electricity work already installed on private land".

104Such precautionary legislation is of little if any assistance in ascertaining and applying existing common law or statute. The 2006 Act does not cause us to alter our conclusion.

105The appellants' submissions were not well captured in the framing of the ground. They submitted that when they purchased lots 1234 and 1235 in 1998 no interest of the respondent was recorded on the then Real Property Act title; that s 42 applied; and that they acquired the land free of any rights of the respondent. They submitted also that there were not "clear legislative provisions which, despite [s 42], impose upon such a title a 'right' or 'licence' on such lands". It is not entirely clear whether the point of the appellants' submissions was that by force of s 42 they obtained title free of any entitlement of the respondent to keep the pole on lot 1234, or that s 42 and its ordinary operation reinforced the need for a clear entitlement by legislation.

106The respondent took the submissions in the first of these ways, and submitted that if reliance on s 42 had been pleaded they would have conducted the trial differently because the contract by which the appellants purchased lots 1234 and 1235 was subject to existing electrical installations and "it would for example have been open to cross-examine Mr Lyons as to whether he believed that he was obtaining indefeasible title". The relevance of Mr Lyons' belief is not clear to us, since obtaining registered title with knowledge of an unrecorded interest is not fraud for the purposes of s 42 (for example, Oertel v Horden (1902) 2 SR (NSW) Eq 37; Mills v Stokman [1967] HCA 15; (1967) 116 CLR 61; Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd [2007] NSWSC 676; (2007) 64 ACSR 31).

107In any event, there is no substance in the ground of appeal. Section 42 of the Real Property Act provides for holding title free from unrecorded estates or interests. The respondent does not assert an easement over or any other estate or interest in the land. It asserts that the pole was lawfully erected and may lawfully be left on lot 1234 notwithstanding that it does not have an easement. It asserts what Windeyer J in Commissioner of Main Roads v North Shore Gas Co Ltd [1967] HCA 41; (1967) 120 CLR 118 at 129 referred to as a statutory right, power or privilege, describing the last as the most accurate term. His Honour said at 130-31 that it was "futile ... to try to classify and describe the respondent's rights in respect of mains and pipes under the streets and roads according to the traditional categories and terminology of the law of real property". His Honour's approach was endorsed in Asciano Services Pty Ltd v Chief Commissioner of State Revenue (NSW) [2008] HCA 46; (2008) 235 CLR 602 at [28] (Gummow, Kirby, Hayne, Crennan and Kiefel JJ). If the respondent is correct in its assertion, s 42 and its operation are of no consequence. And on the other view of the submissions, we consider that the entitlement by legislation is clear.

109Ground of appeal 8, that the primary judge "erred at law in failing to determine that the Electrical Infrastructure on the Appellant's [sic] land constituted a trespass on the Plaintiff's [sic] land", was wrap-up ground for the preceding grounds of appeal. It did not carry any further submissions, or call for separate attention.

110The primary judge did not address damages for trespass in the event that the claim succeeded, although her Honour made a finding, apparently in connection with damages, that at the time the appellants acquired the land Mr Lyons "was at least aware of the possibility that the electricity poles in question were on the subject land" (at [122]).

111Ground of appeal 17 was directed to damages for trespass, and ground of appeal 18 may have been (although it may have been directed to damages for breach of contract). The grounds of appeal were -

"17. Upon the evidence before the Court, the Trial Judge ought to have held that the appellants were entitled to payment of rental for the period from December 1999 to the commencement of the proceedings in the amount of $379,710.

18. The Trial Judge erred in finding that the appellant [sic] (through Mr Lyons) was not intending to proceed in 2000 to make a formal application for development consent and thereafter to develop the land the subject of the proceedings (at [192])."

112Little was said as to ground of appeal 17, and ground of appeal 18 was addressed by the appellants in a few sentences asserting that the finding was "not open". How the finding, which was not accurately reproduced in ground of appeal 18, was material to damages for trespass (or for breach of contract) was not explained. The appellants said at one point that, if the trespass claim was upheld on appeal, damages for trespass should be remitted to the primary judge.

113The damages claim, apart from rental, appeared to be for the value of lots 1234 and 1235 if sold free of the pole in 2004, less the amount for which it was sold. A number of other matters went to whether that was a proper basis of compensation for a trespass by the presence of the pole and whether the appellants would have been entitled to damages so arrived at. The submissions did not go into them. In these circumstances, since it does not arise we do not address damages for trespass, or grounds of appeal 17 and 18.

"27. Further or alternatively, to paragraphs 18-20, on or about 11 June 2003 Rosebanner and Twenty-First Century agreed with EnergyAustralia that in consideration of Rosebanner and Twenty-First Century then forbearing to sue EnergyAustralia immediately for removal of the infrastructure, EnergyAustralia agreed to remove the infrastructure within a period of approximately four months from the date of the meeting ('the Agreement').

28. Further, or alternatively, to paragraphs 18-20, on or about 11 June 2003 (or alternatively on or about 11 June 2003 and 11 July 2005) Rosebanner and Twenty-First Century agreed with EnergyAustralia that in consideration of Rosebanner and Twenty-First Century then forbearing to sue EnergyAustralia immediately for removal of the infrastructure, EnergyAustralia agreed to remove the infrastructure within a period of approximately four months from the date of the meeting or by early September 2003 ('the Agreement').

29. In breach of the Agreement EnergyAustralia failed to remove the infrastructure within a period of approximately four months from the date of the meeting or by early September 2003 and did not remove the infrastructure from the land until about 10 May 2004."

115The particulars taken up in these paragraphs were particulars of representations for the misleading or deceptive conduct claim. They were -

"(a) Made orally, on 11 June 2003 by Penny Campion solicitor for EnergyAustralia and Mr Newland, an engineer employed by EnergyAustralia at a meeting with John Lyons, a director of Rosebanner and Twenty-First Century held in the offices of Stephen Wawn & Associates, lawyers, and

(b) Repeated in writing by letter dated 11 July 2003, from Penny Campion, senior legal counsel on behalf of EnergyAustralia to the effect that the electricity infrastructure would be removed by early September 2003, subject to satisfactory environmental assessment."

116The respondent did not remove the pole until May 2004, so there would have been breach of contract if a contract was made. As we have said, the primary judge found that no contract was made.

117A detailed account of Mr Lyons' dealings with the respondent prior to 11 June 2003 can be found in the primary judge's reasons, and need not be repeated. In late 2000 and 2001 there had been letters between Mr Lyons and the respondent in which, as a general summary, Mr Lyons had complained of the presence of the pole, the respondent had maintained its right to keep the pole on the land, and mentions of compensation and an easement had come to nothing. On 28 May 2003 Mr Lyons' solicitor, Mr Stephen Wawn, formally demanded that the pole be removed.

118The meeting of 11 June 2003 was attended by Mr Lyons, Mr Wawn, Ms Campion and Mr Newland. Ms Campion was a senior legal officer with the respondent and Mr Newland was an engineer with the respondent.

119The primary judge considered in great detail the evidence of what was said at the meeting. Her Honour regarded Mr Newland's minutes of the meeting as the most reliable record of the discussion. There was divergence between Mr Lyons and Mr Wawn, who said that Ms Campion said that the respondent "will remove" the electrical apparatus (or electrical infrastructure) within approximately (or about) 4 months, and the discussion as recorded by Mr Newland of whether the respondent might lease or rent the land or whether its best option was to relocate the power line, which would take three to four months and cost about $80,000.

120The primary judge expressed some doubt whether, even if she accepted the account of the meeting given by Mr Lyons and Mr Wawn, she could reach the view that it was intended that there be a binding agreement before all matters had been resolved. However, her Honour was not satisfied that, objectively determined, there was an agreement for the respondent to remove the pole within about a three to four month period, and said -

"347 The evidence seems to me to support no more than a finding that EnergyAustralia's representatives stated that it was looking for the least costly means of resolving the dispute; that its preferred option would be the removal of the electricity infrastructure (and, perhaps, that this is what it would be likely to do), and that if it did so the relocation or removal could be effected within approximately three to four months."

121The letter of 11 July 2003 was sent by Ms Campion to Mr Wawn. The appellants relied on its first sentence; it was headed "without prejudice", and relevantly read -

"Subject to satisfactory environmental assessment, EnergyAustralia intends to relocate the pole and stay poles on your client's property early in September 2003. I have sought and am awaiting instructions in relation to your client's views on rent."

122The primary judge did not see in the letter any admission of a binding agreement for the respondent to relocate the pole early in September 2003, or anything from which to conclude that the letter alone or the letter coupled with the discussion on 11 June 2003 gave rise to a contractual obligation to relocate the pole within the stated time.

123The primary judge gave a number of reasons for the conclusions she came to, and for the views she took of the meeting on 11 June 2003 and the letter of 11 July 2003. As to the meeting, in particular her Honour was not impressed by occasions on which Mr Lyons had in correspondence "put an advantageous gloss on (or was clearly inaccurate in relation to)" matters to his own advantage, and said that she approached his evidence "with some caution (or to use the more colloquial expression with 'a grain of salt')" (at [300]). Her Honour considered it a "difficulty" insofar as Mr Lyons and Mr Wawn had "clearly conferred in relation to the preparation at least of Mr Lyons' affidavit" (at [324]), noting the similarity of the language used by each of Mr Lyons and Mr Wawn as to the critical part of the meeting; further, Mr Lyons' oral evidence did not support the version attributed to him in the affidavit prepared by Mr Wawn. Her Honour also remarked that a file note Mr Wawn had taken was no more than a summary or conclusion and had not been provided to EnergyAustralia for confirmation, as Mr Newland's minutes had been sought to be provided to Mr Wawn although they went astray. Her Honour's reliance on Mr Newland's minutes as a sound contemporaneous record of what was discussed at the meeting, and her findings as to the meeting, were significantly credit-based.

"9. Upon the evidence before the Court, the Trial Judge ought to have found that -

(b) a term of the agreement was that the respondent was obliged to remove the electrical infrastructure within four months;

126They submitted that the primary judge had given insufficient weight to the first and last and had not given sufficient weight to the evidence of Mr Lyons and Mr Wawn.

127The occasion for the meeting was Mr Wawn's demand that the pole be removed, following which Ms Campion telephoned him proposing a "without prejudice" meeting; according to Mr Wawn, "to try to resolve the dispute" and according to Ms Campion "to discuss ways of resolving this dispute". Mr Newland's minutes recorded Mr Wawn saying at the meeting that it was "intended to determine how best to resolve the matter of our poles and lines crossing Mr Lyons' property, preferably without the need to take the matter to a court".

128The primary judge accepted that the parties attended intending in good faith to seek a resolution to the dispute. However, that says little as to whether they came to a legally binding agreement.

129The appellants sought to add to this that prior to the meeting Mr Newland discussed with Mr Peter Chin, an engineer in his department, when the pole could be removed and a time frame and the likely cost of doing so. The least costly option for the respondent was relocation. The primary judge accepted that Mr Newland must have had that in mind when he attended the meeting. This was not communicated to the appellants; as we understand it, they relied on it to suggest that, intending to seek a resolution of the dispute, the respondent's representatives were more likely to have agreed to a resolution by removal of the pole within a stated time.

130The evidence of the discussion at the meeting had the divergence to which we have referred. It is not necessary to set the evidence out in detail. The primary judge gave sound reasons for preferring Mr Newland's minutes as a contemporaneous record, and declining to accept the evidence of Mr Lyons and Mr Wawn or Mr Wawn's file note as reliable accounts or a useful record. In this respect her Honour's findings were, as we have said, significantly credit-based, and the constraint considered in cases such as Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 applies. Nothing in the appellants' submissions, which scarcely paid regard to the primary judge's views as to credit, gave reason to differ from her Honour's preference.

131The appellants submitted in their written submissions that the minutes and Mr Wawn's file note "suggest (at the least) a consensus as to an 'intention' to remove within a stipulated time frame". It was clearly a course under consideration. Even a consensus as to an intention to remove, whatever that may mean, is less than a legally binding agreement.

132After the meeting Mr Newland sent to Mr Chin an e-mail, which the primary judge read as indicating that it appeared likely that the respondent would be proceeding to relocate the pole in the manner he and Mr Chin had agreed would be the preferred manner. As her Honour observed, this was not consistent with Mr Newland understanding that a binding commitment had been given.

133On 19 June 2003 an internal order was issued for removal work, which the appellants submitted showed that the respondent thought it was under an immediate commitment to do the work and shed light on what the discussion had been. However, Mr Newland said that he wanted to put steps in motion so there would not be delay, and that the order could have been countermanded (the primary judge said that he "seemed to think the IPO was a provisional IPO"). Further, as the letter of 11 July 2003 shows, an environmental assessment was necessary, and the relocation of the pole was delayed by a number of other matters. We do not think that the respondent's prompt attention to removal of the pole, to which the primary judge had regard, or the letter of 11 July 2003, were given less weight than they deserved (so far as the former was admissible for the purpose) in determining whether a contract had been made.

134Neither in response to the letter of 11 July 2003, nor when first advised of the delays, did the appellants assert that the respondent had made or was in breach of a legally binding commitment to remove the pole within about 4 months.

135Nothing in the appellants' submissions, which were more detailed than the preceding summations and which we have carefully considered, casts doubt on the correctness of the primary judge's conclusion that there had not been an agreement for the respondent to remove the pole within about 4 months. The letter of 11 July 2003 does not assist the appellants, either as shedding a favourable light on what might have been agreed on 11 June 2003 or in itself; rather, it is against the existence of a binding commitment.

137The primary judge did not consider damages for breach of contract, as distinct from damages for loss suffered by misleading or deceptive conduct.

"10. Upon the evidence before the Court, the Trial Judge ought to have found that the appellant suffered loss or damage by reason of the breach of contract, being the diminution in the value of the land the subject of the proceedings referable to the electrical infrastructure on that land (whether or not there was a trespass).

139The appellants said in their written submissions that they claimed as damages for breach of contract the damages referred to in ground of appeal 16, which was -

"Upon the evidence before the Court, the Trial Judge ought to have held that the market value of the land in April 2004, absent the electricity infrastructure, was between $1,575,000 and $1,900,000 (the latter being with a development consent).

140For misleading and deceptive conduct the appellants relevantly pleaded the representation "that [the respondent] would remove its electricity infrastructure erected on the land within about four (4) months from 11 June 2003". The particulars were those earlier set out. On appeal the appellants were inclined to accept in oral submissions that the primary judge's reasons in relation to damages for misleading or deceptive conduct would apply also to damages for breach of contract. We say something of those reasons.

141The primary judge recorded at [555], as to misleading and deceptive conduct, that the appellants -

" ... claimed, broadly speaking, that in reliance upon the representation that the electricity infrastructure would be removed within the various suggested timeframes, they did not commence legal proceedings until 2004 to remove the electricity infrastructure and lost the opportunity to refinance the mortgage on the subject land or to obtain development consent and sell for a higher value".

142Lots 1234 and 1235 were sold, effectively under the mortgagee's direction, in April 2004. The appellants alleged that the sale was at a lower price than the market value had the electricity infrastructure been removed, the mortgage been refinanced, development consent been obtained, and the land then been sold.

143The primary judge comprehensively rejected the appellants' case in this respect. An order for removal of the pole would not have been obtained, because there was no trespass. In any event, her Honour doubted that, had the misrepresentation not been made, the appellants would have brought proceedings in July 2003, although they may have done so at some time prior to December 2003 as their financial position became more pressing. The presence of the pole did not prevent the appellants from obtaining a valuation or refinancing, and her Honour was not satisfied that had the misrepresentation not been made steps would have been taken between July and September 2003 to obtain a valuation and obtain finance. (Her Honour referred to evidence that the appellants could have called upon inter-company loans and that a co-director with Mr Lyons had the capacity to provide funding but Mr Lyons did not wish to ask him to do so, and observed that "[i]t would appear on that basis that the Lyons entities could have avoided a mortgagee sale in April 2004 had they wish[ed] to do so.")

"582 The real reason for the failure to refinance at that time seems to be that Mr Lyons placed no confidence in refinancing the property while the electricity infrastructure remained in place and, therefore, he did not seriously move to do so. Even when it became apparent that the infrastructure was not going to be removed by the end of September 2003, it does not appear that serious attempts were made to refinance the loan over the subject land. Therefore, even had the July 2003 representation not been made, I am not satisfied that the Lyons entities would have proceeded at that stage to seek or obtain refinancing."

145As to obtaining development consent, the primary judge said at [594] that she considered -

"594 ... that even there had been no misrepresentation, the prospects of the Lyons entities obtaining a development application in time to refinance or achieve a sale at a higher price (so as to avert the mortgagee sale process), had the process begun in July 2003, to be minimal.

595 Further, had it been necessary to make such a finding, I would have been of the view that the existence of the infrastructure was not the real cause of Mr Lyons' delay in making any development application for the subject land either for the period up to the making of the misrepresentation or afterwards.

596 Rather, it seems to me that the evidence establishes that Mr Lyons never intended that his companies themselves would develop the land and that he was reluctant to incur the costs of what he anticipated would be a lengthy process to seek development approval, so left any development application as a fallback or last resort."

146Her Honour said at [605(3)] that the evidence was that it was highly unlikely that any development consent could have been obtained in under a 12 month period.

147No ground of appeal challenged these findings. Not all would bear upon damages for breach of contract, and damages for breach of contract should put the innocent party in the position it would have been in had the contract been performed; their basis differs from that of damages for misleading or deceptive conduct, and so far as the appellants equated the damages we do not agree. However, some of the findings cast doubt on what would appear to be a necessary step to the upper figure in the damages claimed for breach of contract, namely, that the appellants would have obtained development consent had it not been for the pole; and there may well also be a question whether the appellants would have sold the land at a time prior to April 2004 or would in any event have suffered an effective mortgagee sale.

148Ground of appeal 18 may have been directed to these damages, but as we have indicated it was but scarcely addressed. A number of grounds of appeal, grounds 11 to 15, were directed to the primary judge's finding as to the market value of the lots without the pole in April 2004. However, the part played by the value of the land in arriving at damages for breach of contract was not expounded in the primary judge's reasons or explained in the submissions on appeal.

149The appellants' submissions did not adequately address damages for breach of contract; in this and in many other respects they were thoroughly unsatisfactory. We do not consider damages for breach of contract, or the valuation grounds of appeal, when damages do not arise and the subject is of some complexity and has not adequately been addressed.

I certify that this and the preceding 44 pages are a true copy of the reasons for judgment of the Court.

Supreme Court of New South Wales - Court of Appeal

Rosebanner Pty Ltd & Anor v EnergyAustralia [2011] NSWCA 28 (25 February 2011)