Case: Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 ; (1998) 164 CLR 387
Outcome: cited
I do not accept that contention of Tabcorp that the applicant waived strict compliance with the written consent requirement. It did not do so on 11 July 1997 when Tabcorp was told that it had no objection, in principle, to the removal of the existing foyer surfaces and it did not do so on 14 July 1997 by confirming that works could continue. I have already dealt with Tabcorp's submissions relating to the "in principle" approval: see above at [79]. I would only add in the present context that the 11 July 1997 letter spoke of "in princip[le] approval" of the removal of the existing surfaces. It said nothing about approval for subsequent refurbishment. On 14 July 1997 the Bergamins reluctantly accepted the inevitability that refurbishment work would have to take place. They could hardly have done otherwise given what had been done to the foyer. They made it plain that their prior written consent to the necessary works was needed and that, before that consent would be forthcoming, they wished to see the detailed plans (including the finishes board). This was not conditional approval; it was a reiteration of what the Bergamins understood, correctly, to be Tabcorp's obligation under Clause 2.13 of the lease. In no way did the applicant encourage Tabcorp to act on a false assumption that the applicant did not insist on Tabcorp complying with its obligations under clause 2.13. The applicant was not, therefore, estopped from insisting on Tabcorp so complying: Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 ; (1998) 164 CLR 387. 86 The applicant claims that Tabcorp, by its conduct, contravened ss 52 and 53 (g) of the TP Act . Section 52(1) of the TP Act provides that a "corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." Section 53(g) provides that a "corporation shall not, in trade or commerce, in connection with the supply or possible supply of goods or services, make any false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy." 87 The applicant relies on the following conduct, on the part of Tabcorp, to support its claims under ss 52 and 52 (g) of the TP Act : &#8226; The representation, by Tabcorp, made on 11 July 1997, that it would replace the existing glass and stone partition, timber panelling and stone floor tiles with materials which reflected the high quality of the building; &#8226; The further representation, also allegedly made on 11 July 1997, that alterations to the foyer would not be undertaken without the applicant's prior consent; &#8226; Tabcorp's representation, on 14 July 1997, that the construction of a new foyer would not be undertaken without the applicant's prior consent; &#8226; The representation, given on the same day, that Tabcorp would supply the applicant with final drawings, a schedule of finishes and a sample board in order to enable the applicant to consider whether or not to approve the proposed works; &#8226; The representation, also allegedly made on 14 July 1997, by Tabcorp that the new stone flooring would be equal to or better in quality than the original granite flooring; &#8226; Tabcorp's representation also allegedly made at the meeting on 14 July 1997, that the new foyer would be of an exemplary standard, such that no rectification or improvement of the foyer would be needed at the end of the lease. The applicant contends that it relied on the representations, made on 11 and 14 July 1997, and that, as a result it did not seek to prevent demolition of the existing foyer or the construction of a new foyer and did not take steps to ensure that the standard of the finishes was as represented. It is alleged that the representations that the proposed fittings and finishes would be of a high standard was a matter of opinion for which Tabcorp had no reasonable basis. It is further alleged that the representations were false and misleading in that: &#8226; Tabcorp did not obtain the applicant's prior consent before making the alteration; &#8226; The finishes to the new foyer were not such as to reflect the high quality of the premises; &#8226; Tabcorp did not supply the applicant with final drawings, a schedule of finishes and a sample board before demolishing the foyer and commencing refurbishment; and &#8226; Tabcorp did not intend or have the capacity, at relevant times, to obtain the applicant's approval for commencing the works. The applicant pleads that, by reason of these contraventions of the TP Act , the applicant has suffered loss and damage.