Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: cited
The Turner document is important and, as such, I shall set it out in full. The email from Mr Rattray-Wood states: "From: Alan Rattray-Wood Sent: Monday, 15 October 2001 9.59 To: Joanne Turner Cc: Roger Stansfield; Jim Rush; Natalie Wilson Subject: Mentone -Blake Jo, Could you please let me know when you have managed to get Coles to call Susan Herbert (Landlord Solicitor 03 92299999) about advising her client that Coles have no interest in this property. As advised on Friday, this looks like going full on legal if we don't quash their perceived options. thanks, Alan" 166 There is then a handwritten note on the print out of the email saying "John Kop please call". As previously mentioned, Mr Kop was the project manager for Project Lincoln within Coles. 167 Under this is another handwritten note which states as follows: "Alan, Mary has spoken to Coles. Coles have done a deal in principle here, based on vacant possession. Mary has told Coles that Franklins is going to litigate &amp; hopefully scared them off with the threat of tortious interference , let alone jeopardising our deal with Coles on the whole . Jo." (emphasis added) 195 Many of the documents upon which the applicant relied in support of its circumstantial case were prepared by people who would not have been directly involved in any negotiations that took place between Franklins and Coles, and may not have known what was happening at the level that counted. For example, the Turner document, though capable of having the sinister connotation that the applicant placed upon it, it also perfectly capable of being read in an innocent light. One interpretation of the document is that Ms Turner did not appreciate that the agreement to sell the first tranche of stores to Coles had already been finalised ten days earlier, and that was the "deal with Coles on the whole" to which she was referring. The fact that Ms Turner was not called to give evidence lends some support to the applicant's case regarding the interpretation to be given to this document. See generally Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. However, that does not, in my view, override the highly favourable impression that I formed of Mr Cornell as a witness in this proceeding. 196 It is arguable that the applicant has a stronger case in relation to its claim that the November 2001 dealings constituted a breach of Franklins' contractual obligations. The real substance of this claim is that Franklins "jumped the gun" in terms of seeking the ACCC's consent to sell the Mentone store to Coles, and in concluding an agreement with Coles to do so. It did both these things, according to the applicant, while it still owed obligations, both contractual and fiduciary, to the applicant. 197 The Mentone BSA and the litigation agreement were both still on foot on 23 November 2001. Notice to terminate these agreements was not served until 28 November 2001. The Mentone BSA required seven business days notice to be terminated. Accordingly, the Mentone BSA remained on foot until 7 December 2001. However, in relation to the litigation agreement, the applicant accepts that it came to an end on 28 November 2001.