Commercial tenancy law [Fourth edition.] 9780409343373, 0409343374

Table of contents :
Full Title
Copyright
Preface
Landlord and Tenant Act Comparative Table
Table of Cases
Table of Statutes
Table of Contents
Chapter 1 — Relationship of Landlord and Tenant
The grant and the term granted
A contract creating an estate
Exclusive possession the touchstone of a lease
Exclusive possession and licences
Agreement and certainty
Requirement as to writing
Term and reversion
Subleases
Concurrent leases
Future or reversionary leases
Building leases
Rent
Leaseholds as personalty
Tenancy by attornment
Leases created by estoppel
Abolition of doctrine of interesse termini
Chapter 2 — Kinds of Tenancy
The five kinds of tenancy
Tenancy for a fixed term — certainty
Automatic expiration
Provision for notice — overholding clauses
Fixed terms and notices to quit
Ejectment of overholding tenant
Character of tenancy from year to year
Creation and determination of yearly tenancies
Yearly tenancy presumed where tenant holds over
Holding over after short terms
Holding over where weekly rent reserved
No presumption in absence of necessary intention
Periodic tenancy for less than a year
Kind of periodic tenancy dependent upon intention
Tenancy at will
Entry during negotiations for a lease
Entry under contract of sale
Encroachments by lessee
Termination of tenancy at will
Tenancy at sufferance
Vesting of tenancy on death
Chapter 3 — Licences
Nature of licences
Licence distinguished from lease
Matters not decisive
Lodgers
Employees
Miscellaneous cases
Agreement for a licence
Determination
Recovery of possession
Chapter 4 — Agreements for a Lease
Agreements and leases
Uncertainty
Statute of Frauds
Memorandum and signature
Part performance
Taking of or continuance in possession
Alterations to premises
The doctrine of Walsh v Lonsdale
Damages
Unenforceable agreement as a defence
Action for specific performance
Chapter 5 — Capacity to Make and Take Leases
Capacity to make and take leases
Aliens
Infants
Persons of unsound mind
Married women
The Crown
Municipalities
Statutory corporations
Administrators and liquidators
Receivers
Trustees in bankruptcy
Unincorporated associations
Agents
Persons granting leases to themselves
Co-owners
Mortgagors and mortgagees
Trustees
Personal representatives
Leases invalidated by reason of non-compliance with terms of powers under which they are granted
Illegality
Chapter 6 — Leases as Contracts
Introductory
Intention to create legal relations
Construction and implication of terms
Rectification
Fraud, illegality and mistake
Frustration
Collateral warranty
Chapter 7 — Covenants
Introductory
Construction
Solicitor’s duty
Rent and lessor’s covenants
Covenant to repair
Liability on covenant after assignment
Permission to act in breach of covenant
Covenants concerning user
Covenants for renewal
Breach of covenants
Covenant against assigning without consent
Covenants not to assign or sublet
Application of covenants to overholding
Covenants not to cause nuisance
Covenants for quiet enjoyment
Covenants to pay rates and taxes and outgoings
Chapter 8 — Implied Covenants
Covenants express or implied
Covenants in law
Exclusion by express covenant
Quiet enjoyment
Implied covenant of non-derogation from grant by the landlord
Covenant of fitness by landlord of furnished house
Covenant by tenant to use and deliver up in tenant-like manner
Covenant by tenant to cultivate in husband-like manner
Covenant by tenant to deliver up vacant possession
Other usual covenants
Chapter 9 — Usual Covenants
Usual covenants
Usualness a question of fact
What are usual covenants?
Chapter 10 — Repairs
Landlord’s obligations
Implied obligation of tenant as to user
Waste
Emblements
Fixtures
Covenants to repair and notice
Landlord’s covenants
Tenant’s covenants
Buildings erected after the demise
Construction of covenant
Fair wear and tear
Accident
Remedies for breach
Chapter 11 — Rent
Characteristics — at common law and by agreement
Rent control legislation
Payment of rent
Rent review clauses
Contribution
Payment of rent after notice to quit
Occupation pending completion of sale
Tender of rent
Covenant to pay rent a usual covenant
Action for rent
Liability for rent damages after abandonment of possession
Illegality
Rent period as evidence of nature of tenancy
Determination of rent by a third person
Variation of rent
Liquidator and receiver
Personal representative
Common law demand
Relief against forfeiture
Distress
Enlargement of lease into fee simple
Use and occupation
Chapter 12 — Australian Consumer Law and Other Commonwealth Legislation
Introduction
Restrictive Trade Practices: Competition and Consumer Act Pt IV
Consumer Protection: Chapters 2 and 3
Remedies
Implementation of the Consumer Law
Chapter 13 — Breach of Contract
Introductory
Agreement for a lease
Tender of lease
Measure of damages for failure to grant, take or continue lease
Agreement for weekly tenancy
Covenants to repair
Remedies for breach of covenant
Miscellaneous covenants
Chapter 14 — Renewal of Leases
Options and covenants for renewal
Not generally perpetually renewable
Uncertainty
First refusal
Effect of exercise of option
Lessee in breach of covenant
Rent to be determined by third person
Mode of exercise
Time for exercise
Service of notice of exercise
Relief in equity
Chapter 15 — Assignment and Subletting
Assignment
Subletting
Parting with possession
Mesne lessors
Power to assign or sublet subject to consent
Breach of covenant against assignment or subletting
Form of assignment
Position of tenant after assignment
Position of assignee
Benefit and burden of covenants run with the land
Assignee to indemnify lessee
Chapter 16 — Determination of Tenancies
Modes of termination
‘Waiver’ after termination
Effect on subleases
Effect on power of attorney
Effluxion of time
Operation of condition
Exercise of option to determine — break clauses
Merger
Merger and registered leases
Merger and subleases
Surrender
Express surrender
Surrender at law and in equity
Statutory provisions
Future surrenders
Surrender by one tenant
Surrender by operation of law
Relinquishment of possession
Acceptance by tenant of new interest
Surrender by personal representative
Grant of lease to third person
Effect of surrender
Forfeiture
Notice to quit
Disclaimer
Acceptance of repudiation
Fundamental terms
Removal and disposal of goods left on vacated premises
Chapter 17 — Forfeiture
Forfeiture not confined to fixed terms
Strict compliance essential
The three grounds
Lease made voidable only
Words of condition
Covenant made effective by proviso for re-entry
Exercise of option to forfeit
Proviso for re-entry
Re-entry under a proviso for re-entry
Actual re-entry
Action to recover possession
Issue of writ without service
Position prior to judgment
Common law demand for rent
Notice to remedy
Effect of forfeiture
Mesne profits — double value and double rent
Waiver
Relief against forfeiture
Registered leases
Disclaimer
Forfeiture and general principles of contract law
Chapter 18 — Condition of Forfeiture
Forfeiture
Notice to remedy
Notice not required
Necessity for notice
Possession claimed by mortgagee
Contents of notice
Breach incapable of remedy
Breach capable of remedy
Sufficient period of notice
Service of notice
Protection of position of lessee
Chapter 19 — Relief from Forfeiture
Equitable and statutory relief
Non-payment of rent
Supreme Court
Statutory relief
Term of relief
Sublessees
Chapter 20 — Notice to Quit
Notice to quit
Period of notice
Period of notice for weekly tenancy
Clear days unnecessary
Notice must expire at end of period
Statutory modification
The ambulatory notice
Who may give notice
Notice by agent
Notice by personal representatives and trustees
Notice by corporations
To whom notice may be given
Verbal notices
Informality and want of signature
Part of demised premises excluded; extraneous premises included
Severance of the reversion
Strict or benevolent construction
Misdescription of tenancy
Variation between notice served on two lessees
Date of expiration
‘On or before’; ‘by’; ‘within’
Misdescription of premises
Misnomer of landlord
Misnomer of tenant
Notice referring to other matter
Reference to other documents
Service
Service by post
Substituted service
Second notice
‘Waiver’ of notice
Payment of rent
‘Withdrawal’ of current notice
Chapter 21 — Re-entry by way of Self-help
The two senses of re-entry
Self-help in the recovery of possession
Dangers of direct action
Legal proceedings preferable
Chapter 22 — The Old Action of Ejectment
Real actions
Ejectment
Fictions
Nineteenth century reforms
Chapter 23 — Retail Tenancies Legislation: Victoria
Background
Continuing operation of all retail leases legislation
Scope of this chapter
Retail Leases Act 2003 (as amended in 2005)
Commencement of the 2003 and 2005 Acts
Extended operation of the 2003 Act
Application of the 2003 Act
Meaning of ‘retail premises’
Exceptions to the ‘retail premises’ definition (and application of the Act)
Residential areas and retail premises leases
Formal requirements with respect to leases
Renewals, assignments, subleases and the statutory minimum term
Key money and goodwill
Disclosure requirements
Rent and rent review
Turnover rent
Security deposits
Outgoings and other payments
Costs and indemnities
Repairs, refurbishment, relocation, demolition, alteration and refitting
Compensation for interference
Unconscionable conduct of landlord or tenant
Additional requirements for shopping centres
Miscellaneous provisions
Functions of Small Business Commissioner
Ministerial Determinations
Dispute resolution system — alternative dispute resolution
Dispute resolution system — Victorian Civil and Administrative Tribunal (VCAT)
Chapter 24 — Retail Tenancies Legislation: New South Wales
Background
Premises subject to the Act
Express duties of the landlord
Unconscionable conduct and misleading or deceptive conduct proscribed
Controls on security bonds
Other duties
Right to at least five years’ tenancy
Rent review
Rent based on turnover
Rent and other payments
Implied terms
Prohibited terms
Void terms
Assignments and subleases
Termination of lease
Determination of disputes
Chapter 25 — Retail Tenancies Legislation: Queensland
Background
Premises subject to the Act
Express duties of the landlord
Unconscionable conduct proscribed
Other duties
Rent review
Rent based on turnover
Rent and other payments
Options to renew
Implied terms
Prohibited terms
Assignments and subleases
Termination of lease
Determination of disputes
Chapter 26 — Retail Tenancies Legislation: Western Australia
Background
Premises subject to the Act
Express duties of the landlord
Assignments and subleases
Implied terms
Rent review
Rent based on turnover
Right to at least five years’ tenancy
Termination of lease
Determination of disputes
Chapter 27 — Retail Tenancies Legislation: South Australia
Background
Premises subject to the Act
Express duties of the landlord
Other duties
Right to at least five years’ tenancy and options to renew the term
Rent review
Rent based on turnover
Rent and other payments
Implied terms
Prohibited terms
Void terms
Assignments and subleases
Termination of lease
Determination of disputes
Chapter 28 — Retail Tenancies Legislation: Australian Capital Territory
Background
Premises subject to the Act
Express duties of the landlord
Controls on security bonds
Right to at least five years’ tenancy
Rent review
Rent and other payments
Prohibited and void terms
Assignments and subleases
Termination of lease
Determination of disputes
Index

Citation preview

Commercial Tenancy Law Fourth Edition

Commercial Tenancy Law Fourth Edition

The Hon Clyde Croft BEc, LLM (Mon), PhD (Cantab), FAAL, LFACICA LFIAMA, JFAMINZ, FCIArb A Judge of the Supreme Court of Victoria Formerly one of the Senior Counsel for the State of Victoria

Robert S Hay BA, LLB (Hons) (Tas), LLM (Mon) One of Her Majesty’s Counsel Castan Chambers, Melbourne

Luke Virgona LLB (Mon), MCom (Swinburne) Barrister-at-Law Dawson Chambers, Melbourne

LexisNexis Butterworths

Australia 2018

AUSTRALIA

ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM USA

LexisNexis LexisNexis Butterworths 475–495 Victoria Avenue, CHATSWOOD NSW 2067 On the internet at: www.lexisnexis.com.au LexisNexis Argentina, BUENOS AIRES LexisNexis Verlag ARD Orac GmbH & Co KG, VIENNA LexisNexis Latin America, SAO PAULO LexisNexis Canada, Markham, ONTARIO LexisNexis Chile, SANTIAGO LexisNexis China, BEIJING, SHANGHAI Nakladatelství Orac sro, PRAGUE LexisNexis SA, PARIS LexisNexis Germany, FRANKFURT LexisNexis Hong Kong, HONG KONG HVG-Orac, BUDAPEST LexisNexis, NEW DELHI Dott A Giuffrè Editore SpA, MILAN LexisNexis Japan KK, TOKYO LexisNexis, SEOUL LexisNexis Malaysia Sdn Bhd, PETALING JAYA, SELANGOR LexisNexis, WELLINGTON Wydawnictwo Prawnicze LexisNexis, WARSAW LexisNexis, SINGAPORE LexisNexis Butterworths, DURBAN Staempfli Verlag AG, BERNE LexisNexis, TAIWAN LexisNexis UK, LONDON, EDINBURGH LexisNexis Group, New York, NEW YORK

LexisNexis, Miamisburg, OHIO

ISBN:

9780409343366 (hbk). 9780409343373 (ebk).

© 2018 Reed International Books Australia Pty Limited trading as LexisNexis. First edition, 1990. Second edition, 1997. Third edition, 2009. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Bembo Std and Optima LT Std. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface This book is designed to be a comprehensive analysis of the law throughout Australia relating to all aspects of commercial leases. Unlike residential leases, which in most jurisdictions are now codified by residential tenancies legislation, commercial leases are still primarily governed by the common law. This is the case even where these leases are subject to retail or shop leases legislation in the various jurisdictions as that legislation tends to supplement and rely upon the common law rather than provide anything in the nature of a comprehensive legislative code. Consequently, the majority of this book consists of an analysis of common law principles. The substance and application of common law principles has, in a number of instances, been modified by legislation other than the retail or shop leases legislation. The book also examines this legislation, with particular attention being given to the Australian Consumer Law. The retail or shop leases legislation is considered in separate chapters, jurisdiction by jurisdiction. This legislation has, in many instances, been the subject of major revision since the second and third editions of this book and has also been the subject of significant developments in the case law. Consequently, this edition has been substantially revised in its treatment of this legislation and its developed and developing case law. There have also been significant developments in the common law since the third edition in 2009, and these are dealt with comprehensively. In particular the treatment of the construction of leases and agreements for lease, equitable estoppel, set-off, leases and mortgages, rent and rent review and the contractualisation of leases, with particular reference to repudiation and its acceptance, has been revised and expanded. This was also the case with the second and third editions as these are areas of active development in the law of landlord and tenant. This fourth edition of Commercial Tenancy Law, like the three previous editions of this work, has grown out of its predecessor edition. The first

edition, in turn, grew out of and revised and expanded the second edition of Brooking and Chernov, Tenancy Law and Practice — Victoria, which had, in its two editions (Butterworths, 1st ed, 1972; 2nd ed, 1980), itself grown out of earlier works by Anderson and Brooking and its predecessor Tenison-Woods and Anderson; all of which were influential and much used by, mainly, Victorian practitioners. As a result of this process, Commercial Tenancy Law has a long pedigree and one which dates back — now around 70 years — to the publication of Landlord and Tenant Legislation of Victoria (Butterworths, 1948) by Ms Mary Tenison-Woods and Mr Kevin Anderson (later a Judge of the Victorian Supreme Court). Again this work was built upon and expanded in Landlord and Tenant (Butterworths, 2nd ed, 1958; 3rd ed, 1959) by Anderson and Brooking. As indicated, this work, again expanded, became Brooking and Chernov. This book, like its previous editions, continues to owe an enormous debt to the work, scholarship and practical experience of The Hon Mr Justice Brooking and The Hon Justice Chernov AC (both of whom were formerly Justices of Appeal of the Victorian Supreme Court and in the case of Justice Chernov formerly the Governor of Victoria), and their predecessors, whose writings continue to form a significant part of this work. However, this book, unlike Brooking and Chernov, but like its previous editions, is written as an Australian book and deals with legislation in all states, applicable Commonwealth and national scheme legislation (such as the Australian Consumer Law and the Corporations Act) and also the common law. For reasons of space, we have been unable to cite the full text of the relevant legislation on each point in all states. Where there is common legislation throughout the states, our approach has been to cite the text of the New South Wales or Victorian provision and to give the citation to the equivalent provisions in the other states (and in some instances, the territories). Also, unlike Brooking and Chernov, as in the previous editions, this work omits all reference to residential tenancies legislation and cases relating to the lease of dwelling houses except where they are relevant to general principles also applicable to commercial leases. This book contains a detailed analysis of the present law. As with the previous editions, it will be of particular interest and assistance to counsel,

solicitors and corporate lawyers throughout Australia. It will also be of considerable interest and assistance to everybody affected by or involved with commercial leases; in particular estate agents, land agents, academic lawyers and undergraduate and postgraduate law students. It is hoped that this edition will continue to provide a useful source of reference for law students enrolled in property law and be an essential text for students enrolled in specialist landlord and tenant courses at the LLB, LLM and JD level currently offered in various Australian law schools. We have made every effort to ensure that this book is up-to-date at the time of writing. The law is stated as available to us on 31 August 2017, except where a later date is specified in the text. Updates on recent developments in commercial tenancy law may be obtained regularly at www.roberthaypropertybarrister.wordpress.com. We all wish to thank Professor Adrian Bradbrook for his enormously significant work and contribution as author and editor of the preceding three editions of Commercial Tenancy Law: all of which contributes to the content and depth of this work. We also wish to thank Ms Amy Hando, Ms Tracie Stewart and Mr Thomas Egan for their assistance with research, checking and the preparation of tables for this edition. Finally, we all wish to thank the staff at LexisNexis, particularly Ms Georgina Gordon, Commissioning Editor — Texts, for their work in steering this fourth edition though all the developmental and final stages of publishing. Serviceton 17 October 2017

C E Croft R S Hay L A Virgona

Landlord and Tenant Act Comparative Table Topic

Landlord and Tenant Act 1958

Leases

Pt I

Provisions as to Execution and Seizure by Third Party

Pt II

Emblements: Fixtures

Pt III

Distress for rent abolished

Tenant may remove buildings and fixtures they have installed Summary Proceedings to Recover Possession Removal and Disposal of Goods Left on Vacated

Date of Amendment

Current Position*

1 August 2010

Repealed and not replaced, the legislature being of the opinion that the legislation was redundant.

1 August 2010

Not replaced, but as noted by Garde J in Asian Pacific Building Corporation Pty Ltd v Sharon-Lee Holdings Pty Ltd [2013] VSC 11 at [24], distress for rent remains abolished in accordance with s 14(2)(a)–(d) of the Interpretation of Legislation Act 1984.

s 28(2)

1 August 2010

Replaced by s 154A of the Property Law Act 1958, which now gives the tenant the option to pay the costs of repair, rather than the tenant having a specific obligation to repair.

Pt IV

1 September 2012

s 12

Pt IVA

1 September 2012

Repealed and not replaced (but see, generally, various Court Rules). Repealed and replaced by Pt 4.2 of the Australian Consumer Law and Fair Trading Act 2012 (ACLFT Act), except for leases prior to the ACLFT Act which are still governed by Pt IVA of the LL&T Act (ss 9,

Premises

56(5) ACLTF Act).

(Continued) Definitions of ‘goods’ and ‘tenant’

s 42A

1 September 2012

Not replaced in the ACLFT Act, but see ss 54 and 56(1) of that Act.

Landlord may remove and store goods

s 42B(1)

1 September 2012

Not replaced in the ACLFT Act.

s 42B(2)

1 September 2012

Replaced by s 59 of the ACLFT Act, which requires an owner of goods left behind who was not an occupier to pay the charge before recovering the goods (and see s 69).

1 September 2012

The method of disposal or sale of goods that the landlord must follow now depends on whether there is a dispute regarding the charge (s 58 of the ACLFT Act), whether the value of the goods is low, medium or high (ss 60, 61 and 62 respectively; see definitions, s 3(1)), and whether the goods are perishable (s 65). Sections 66 and 67 dictate the content and means of notice that must be given to the owner of the goods.

1 September 2012

Replaced by ss 55 and 73 of the ACLFT Act; s 73(3) provides that where any proceeds of sale are less than the storage and disposal costs, the shortfall is recoverable as a debt. Section 69 empowers the court to determine the quantum of the charge.

1 September 2012

Replaced by s 75(1) of the ACLFT Act, which removes the express requirement that the buyer purchases in good faith and removes all reference to burden of proof. Section 75(2) deems that a landlord who disposes of goods in accordance with the ACLFT Act acquires good title.

1 September 2012

This section is replaced by s 59 of the ACLFT Act, which does not grant a non-tenant owner of goods specific rights in the proceeds of the sale of the goods.

Recovery of goods by tenant

Sale of goods by landlord

Landlord may deduct certain costs from proceeds of sale

Buyer of goods sold pursuant to this Part acquire a good title

Rights of actual owner of goods

s 42C

s 42D

s 42E

s 42F

Division 3 of Pt 4.2 of the ACLFT Act now

Court supervision of disposal of goods

Recordkeeping by landlord

Control of Rents and Recovery of Possession

* Save

None

1 September 2012

None

1 September 2012

Section 74 of the ACLFT Act requires the landlord to prepare and make available certain records relating to the goods and their disposal/sale.

1 September 2012

Repealed and not re-enacted in other legislation, but premises which were prescribed premises within the meaning of Pt V of the LL&T Act continue to be excluded from the application of the Residential Tenancies Act 1997 (see s 14(3) of that Act).

Pt V

provides an optional procedure for the disposal of goods left behind under the supervision of the court.

for where express provision is made in the ACLFT Act (which is noted in the above table), provisions of the Landlord and Tenant Act will continue to have effect on leases entered into prior to that Act’s repeal to the extent that those provisions confer rights and impose liabilities. As was said in Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541 at 552 ‘the distinction between what is and what is not a “right” must often be one of great fineness’; a statement which is also true of liabilities. For more detail on this fraught distinction: see Interpretation of Legislation Act 1984 (Vic) ss 14–16; D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) [6.9]–[6.12], [6.14].

Table of Cases References are to paragraphs A E Terry’s Motors Ltd v Rinder [1948] SASR 167 …. [10.7], [16.19] A Hudson Pty Ltd v Legal & General Life of Australia Ltd (1986) …. [11.20] A Roberts and Co Ltd v Leicestershire County Council (1961) Ch 555 …. [6.8] AAMR Hospitality Group Pty Ltd v Goodpar Pty Ltd [2009] VCAT 2782 …. [23.33] Aarons v Lewis (1877) 3 VLR (E) 234 …. [11.1] Abau Holdings Pty Ltd v J & C Reid Pty Ltd (No 2) (SC(NSW), Young J, 20 March 1987, unreported) …. [10.5] Abbey National Building Society v Cann [1990] 1 All ER 1085 …. [5.16] — v — [1991] 1 AC 56 …. [1.15] — v Maybeech Ltd [1985] …. [19.1], [19.3], [19.4], [19.6] — v Maybeech Ltd [1985] Ch 190 …. [19.1], [19.3], [19.4], [19.6] Abbeyfield (Harpenden) Society Ltd v Woods [1968] 1 All ER 352; [1968] 1 WLR 374 …. [1.4] ABC Coupler & Engineering Co Ltd (No 3), Re [1970] 1 All ER 650 …. [5.9], [11.22] Abdy v Stevens (1832) …. [17.2] Abernethie v A M & J Kleiman Ltd [1970] …. [24.2], [25.5], [26.2], [27.2] Abidogun v Frolan Health Care Ltd [2001] EWCA Civ 1821 …. [19.2] Abigroup Contractors Pty Ltd v ABB Service (Formerly ABB Engineering Construction Pty Ltd) (2005) 21 BCL 12; [2004] NSWCA 181 …. [4.1] Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191 …. [1.6], [4.3],

[4.4], [14.9] Abrahams v Cussen (1848) 3 a’Beckett’s RJ 55 …. [16.19] — v MacFisheries Ltd [1925] …. [7.12] Accuba Ltd v Allied Shoe Repairs Ltd [1975] …. [11.6] Ace Property Holdings Pty Ltd v Australian Postal Corp [2011] 1 Qd R 504; [2010] QCA 55 …. [15.3], [19.2] Ackland v Lutley (1839) 9 Ad & El 879; 112 ER 1446 …. [23.64] ACN 079 830 596 Pty Ltd v Wallis Lake Fisherman’s Cooperative Ltd [2007] NSWADT 297 …. [24.6] ACT Aerial Services Pty Ltd v Canberra International Airport Ltd [2000] ACTSC 63 …. [14.1] Actionco Pty Ltd v Pioneer Plasterboard Pty Ltd (2002) …. [23.18] Adami v Lincoln Grange Management Ltd [1998] 1 EGLR 58 …. [10.1] Adams v Anthony Bryant & Co Pty Ltd (1987) ATPR ¶40-784 …. [12.13] — v Cairns (1901) 85 LT 10; 17 TLR 662 …. [2.14] Adamson v Busch [1955] VLR 450 …. [3.8], [16.3] — v Hayes (1973) 130 CLR 276 …. [1.6] ADC Buildings Pty Ltd v Barana Properties (No 1) Pty Ltd (2005) …. [11.4], [11.8] — v Kilstream Pty Ltd (1979) 25 ALR 549 …. [12.9] Addis v Burrows [1948] 1 All ER 177; [1948] 1 KB 444 …. [6.5], [20.7], [20.20] Addiscombe Garden Estates Ltd v Crabbe [1958] …. [3.3], [3.6] Adler v Blackman [1952] 2 All ER 41; [1953] 1 QB 146 …. [2.10], [2.11] — v Upper Grosvenor Street Investment Ltd [1957] 1 WLR 227 …. [15.10], [15.13] Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 …. [6.6] Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264 …. [10.8]

Aegean Food Import Export Pty Ltd v R & C Mazzei Nominees Pty Ltd [2004] VCAT 1450 …. [23.35] — v — [2007] VCAT 68 …. [23.35] AF Textile Printers Pty Ltd v Thalut Nominees Pty Ltd [2007] VSC 73 …. [8.4] AG Securities v Vaughan [1990] 1 AC 417 …. [1.4], [1.12], [3.4] Agar v Macklew (1825) 2 Sim & St 418; 57 ER 405 …. [14.7] Age Old Builders Pty Ltd v Swintons Pty Ltd [2002] …. [11.20] — v — [2003] …. [11.20] Aglionby v Cohen [1955] 1 QB 558; [1955] 1 All ER 785 …. [21.2] Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 …. [6.6] Ah Lop v Donald (1906) 26 NZLR 218 …. [13.15] Ahearn v L A Wilkinson Ltd [1929] St R Qd 66 …. [16.21] Aidan Nominees Pty Ltd v Cockburn (1994) 10 SR (WA) 256 …. [26.8] Air Force Assoc (Vic Division) v White Manufacturing Co (Aust) Pty Ltd [1951] VLR 85 …. [15.8] Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 …. [4.1], [6.6] Ajzner v Cartonlux Pty Ltd [1972] VR 919 …. [14.7] AK Freund Pty Ltd v Kameel Pty Ltd [2004] VCAT 1336 …. [23.40] — v — [2004] VCAT 744 …. [10.13], [13.15], [23.40], [23.54] Akici v LR Butlin Ltd [2006] 1 WLR 201 …. [15.3] Akora (Bondi Junction) Pty Ltd v Buttrose [2008] NSWADT 275 …. [24.2] Al Saloom v Shirley James Travel Service Ltd (1981) …. [11.6] Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd (2007) NSW ConvR ¶56-167; [2006] NSWCA 224 …. [10.8], [10.10], [10.11], [10.13] Alan Estates Ltd v W G Stores Ltd [1982] Ch 511 …. [1.5] Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 …. [6.7], [10.5],

[10.7], [10.8], [10.10], [11.8] Alcides Fernandes v Timothy Yat Wah Lam [1998] WASCA 347 …. [26.9] Alcock, Ex Parte; Re McConnell (1955) …. [11.3] Alcova Holdings Pty Ltd v Pandarlo Pty Ltd (1988) 15 NSWLR 53 …. [1.6] Aldahr v Motor Vehicle Commission [2007] NSWSC 1102 …. [12.9] Aldin v Latimer, Clark, Muirhead & Co [1894] 2 Ch 437 …. [8.5] Alford v Vickey (1842) Car & M 280; 174 ER 507 …. [20.27] Alghussein Establishment v Eton College [1988] 1 WLR 587; [1991] 1 All ER 267 …. [6.9] Alker v Collingwood Housing Association [2007] 1 WLR 2230 …. [10.1] Allam & Co Ltd v Europa Poster Services Ltd [1968] 1 WLR 638 …. [20.12], [20.20] Allan v Liverpool Overseers (1874) LR 9 QB 180 …. [1.3] Allcocks v Moorhouse (1882) 9 QBD 366 …. [1.14] Allen v Belmore Property Co Pty Ltd (1966) …. [11.2] — v Carbone (1975) 132 CLR 528 …. [4.1] Alliance Accounting & Business Consultants Pty Ltd v Australian Property Investment & Development Pty Ltd (SC(NSW), White J, 19 June, 2007 unreported) …. [10.1], [10.10] Allison v Scargall [1920] 3 KB 443; [1920] All ER Rep 172 …. [20.2] Alliswell Pty Ltd v Macdav Pty Ltd (2002) V ConvR ¶54-660 …. [17.18] Allsvelte Pty Ltd v Cassegrain Wines Pty Ltd (2015) 18 BPR 35,637 …. [14.6] Almond v Camrol Pty Ltd (1984) 3 BPR 9461 …. [4.1] Alonso v Leichhardt Municipal Council (1975) …. [3.8] Alton House Holdings Ltd v Calflane (Management) Ltd (1987) 20 HLR 129; [1987] 2 EGLR 52 …. [10.1] Alucraft Pty Ltd v Grocon [1996] 2 VR 386 …. [10.13] Amad v Grant (1947) 84 CLR 327; [1947] ALR 191 …. [2.7], [2.13], [2.19], [20.2], [20.3], [20.5], [20.18], [20.21]

Amber Properties Pty Ltd v Sufigoe Pty Ltd (1994) 6 BPR 13,822 …. [14.1] — v — (1995) NSW ConvR ¶55-735 …. [14.1] American Leaf Blending Co v Director-General of Inland Revenue [1979] AC 676 …. [24.2], [25.5], [26.2], [27.2] Amherst v James Walker Goldsmith & Silversmith Ltd [1983] …. [11.6] AMJE Pty Ltd v Mobil Oil Australia Pty Ltd [2016] VSC 777 …. [23.63] AMP Life Ltd v Lillium Pty Ltd (2001) V ConvR ¶58-551; [2000] VCAT 34 …. [7.8], [23.18] AMP Society v National Mutual Life Association of Australasia Ltd [1995] …. [11.5] Amricama Pty Ltd v Red Carpet Real Estate Pty Ltd [2014] QSC 267 …. [25.8] Amsprop Trading Ltd v Harris Distribution Ltd [1997] 1 WLR 1025 …. [10.1], [10.8], [10.13] — v — (1997) 47 EG 127 …. [10.13] Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27 …. [4.1], [4.2] Anderson v Bowles (1951) 84 CLR 310 …. [6.9], [2.20], [11.28], [17.17] — v Daniel [1924] 84 CLR 310; [1951] ALR 913 …. [24.19] — v James (1908) 28 NZLR 34 …. [10.3] Anderson, Hodgson & Lithgow v Vecht [1946] VLR 458 …. [20.8] Anderson Ltd v Daniel [1924] 1 KB 138 …. [25.15], [27.17] Andrew v Bridgman [1908] 1 KB 596 …. [15.15] Andrews v Colonial Mutual Life Assurance Society Ltd [1982] 2 NZLR 556 …. [1.15], [14.3] — v Hogan (1952) 86 CLR 223; [1952] ALR 601 …. [16.3], [16.11], [16.18], [16.20] Angell v Randall (1867) …. [11.28] Anglia Building Society v Sheffield City Council [1983] 1 EGLR 57 …. [7.8] Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162

CLR 549 …. [14.1], [16.33] Annen v Rattee [1985] …. [3.8], [5.15] Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 …. [5.6] Anstruther-Gough-Calthorpe v McOscar [1923] All ER Rep 198; [1924] 1 KB 716 …. [10.8] Antaios Cia Naviera SA v Salen Rederierna AB [1985] AC 191 …. [14.3] Anthony v Stanton [1943] VLR 179 …. [1.5], [2.2] Antonino Giuseppina Ensabella & Sons Pty Ltd v Players on Downunder Pty Ltd (2000) V ConvR ¶54-626 …. [23.11], [23.12], [23.13], [23.14], [23.22], [23.35], [23.37], [23.46] ANZ Bank Ltd v Strelitz [1964] NSWR 401 …. [1.14] ANZ Banking Group Ltd v Widin (1990) 26 FCR 21 …. [4.5] Appah v Parncliffe Investments Ltd [1964] …. [3.4] Appeal of Hayman, Re (1964) 80 WN (NSW) 783 …. [20.5] Apperly v Federal Commissioner of Land Tax (1914) 17 CLR 535 …. [11.1] Appleby v Pursell [1973] 2 NSWLR 879 …. [6.6] Apps & Sons Pty Ltd and Hurley, Re [1949] VLR 7 …. [14.3] Apriaden Pty Ltd v Seacrest Pty Ltd (2005) 12 VR 319; V ConvR ¶54-704; [2005] VSCA 139 …. [16.28], [18.2], [23.63] Aqua Jet Car Wash Pty Ltd v Buraan Pty Ltd [2004] NSWSC 1087 …. [7.16] Arball Pty Ltd v Chow (1992) V ConvR 54-429 …. [15.11] Archos, Re [1994] 1 Qd R 223 …. [15.14], [26.8] Arcric Investments Pty Ltd v Ductline Pty Ltd (1992) ATPR 41-180 …. [12.9] Arden v Puller (1842) 10 M & W 321; 152 ER 492 …. [10.1] Argyle Art Centre Pty Ltd v Argyle Bond & Free Stores Co Pty Ltd [1976] 1 NSWLR 377 …. [20.30], [20.32], [21.3] Aris-Bainbridge v Turner Manufacturing Co Ltd [1950] 2 All ER 1178; [1951] 1 KB 563 …. [23.41], [24.11], [26.11], [27.9], [28.10]

Arjay Investments Pty Ltd v Morrison’s Outdoor Catering Pty Ltd (SC(NSW), 1 May 1995, unreported) …. [4.1], [7.16] Arkwright’s Settlement, Re [1945] Ch 195; 1 All ER 404 …. [16.19] Arlesford Trading Co Ltd v Servansingh [1971] 1 WLR 1080 …. [15.18], [15.20] Armstrong Jones Management Pty Ltd v Sales-Bond & Associates Pty Ltd [2007] NSWADTAP 47 …. [24.6] Armstrong v Armstrong [1970] …. [3.4] — v Fisher (1950) 68 WN (NSW) 93 …. [16.20] Armytage & Jones Pty Ltd v Jones (1952) 69 WN (NSW) 299 …. [16.21] Arndale (Kilkenny) Pty Ltd v Gaetjens (1970) 44 ALJR 434 …. [1.4], [8.4], [13.11], [23.48] Arnold v Mann (1957) 99 CLR 462; [1957] ALR 1207 …. [2.12], [16.2], [20.31], [20.32], [20.33] — v National Westminster Bank plc [1990] …. [11.8] — v Wood [1948] VLR 261 …. [20.19] Arnsby v Woodward (1827) 6 B & C 519; 108 ER 542 …. [17.18] Aronberg v FCT (1943) 132 F 2d 165 …. [12.9] Aroney v Heily [1968] …. [11.2] Ashburn Anstalt v Arnold [1989] Ch 1 …. [1.5], [1.12] Ashbury Railway Carriage & Iron Co v Riche (1875) LR 7 HL 653; [1874– 80] All ER Rep Ext 2219 …. [5.8] Ashe v Hogan [1920] IR 159 …. [15.20] Ashmore Developments Pty Ltd v Eaton [1992] 2 Qd R 1 …. [15.20], [20.8] Ashton v Hunt [1999] 1 Qd R 571 …. [1.6] — v Sobelman [1987] 1 WLR 177 …. [17.10] Ashutosh Industries Pty Ltd v Giriftin (RLD) [2005] NSWADTAP 34 …. [24.3] Ashworth Fraser Ltd v Gloucester City Council [2001] 1 WLR 2180 …. [7.8], [15.12], [15.13], [15.14]

Asian Pacific Building Corporation Pty Ltd v Sharon-Lee Holdings Pty Ltd [2013] VSC 11 …. [16.36] Aspromonte Pty Ltd v Zagari [1999] NSWSC 831 …. [24.3] Aspro’s Pty Ltd v Hayter [2005] ANZ ConvR 425 …. [6.8] Assaf v Kostrevski (1999) NSW ConvR ¶55-883 …. [10.1] — v Kostrevski & Ors (unreported, New South Wales Court of Appeal, 30 September 1998) …. [10.1] Associated British Ports v C H Bailey plc [1990] 2 AC 703 …. [19.4] Associated Dairies Ltd v Pierce [1983] 1 EGLR 45 …. [13.14] Associated Mineral Pty Ltd v NSW Rutile Mining Co Pty Ltd (1961) 35 ALJR 29 …. [14.9] Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 …. [16.35] Astley v Miller (1827) 1 Sim 298; 57 ER 588 …. [16.8] Athabasca Realty Co Ltd v Graves (1979) Athabasca Realty Co …. [19.1] Atkin v Rose [1923] 1 Ch 522 …. [17.18], [19.6] Atkins (Charles) & Co Ltd v Backhouse [1928] SASR 179 …. [15.13] Atkinson v Findon Shopping Centre Pty Ltd [1987] ACLD 403 …. [4.2] Attorney-General v Balliol College, Oxford (1744) 9 Mod 407 …. [1.15] — v Barker Bros Ltd (1976) 2 NZLR 495 …. [4.8] — v Owen (1805) 10 Ves Jun 555; 32 ER 960 …. [5.17] Attorney-General for Hong Kong v Fairfax Ltd [1997] …. [7.7] Attorney-General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557 …. [24.6] Attorney-General of Hong Kong v Humphreys Estate (Queens Garden) Ltd [1987] 1 AC 114 …. [1.15] Auriol v Mills (1790) …. [11.3] Aus-game Pty Ltd v D’Orsogna Bros Pty Ltd [1996] ANZ ConvR 248 …. [10.5] Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1; [1997] Q ConvR ¶54-485 …. [8.4], [8.5], [13.15], [23.54]

Austen v Boys (1858) 2 De G & J 626; 44 ER 1133 …. [24.5], [25.5], [27.5] Austerberry v Corporation of Oldham (1885) 29 ChD 750 …. [15.18], [15.19] Austin v Bonney [1999] 1 Qd R 114 …. [10.6] — v Newham [1906] 2 KB 167 …. [14.3] Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 …. [1.15] Austral Standard Cables Pty Ltd v Walker Nominees Pty Ltd (1992) 26 NSWLR 524 …. [1.15] Australia and New Zealand Bank Ltd v Sinclair [1968] 2 NSWR 26 …. [5.16] Australia and New Zealand Banking Group Ltd v Letore Pty Ltd (SC(Vic), 22 December 1994, unreported) …. [6.8] Australian Aggregates (NSW) Pty Ltd v Maxmin Pty Ltd [1988] ACLD 576 …. [14.6] — v — (SC(NSW), Hodgson J, 16 May 1988, unreported) …. [1.4], [3.8], [14.6] Australian Asset Consultants Pty Ltd v Staples Super Pty Ltd [2016] VCAT 1726 …. [23.45] Australian Blue Metal v Hughes (1962) 79 WN (NSW) 498 …. [16.36] — v — [1963] AC 74; [1962] 3 All ER 335 …. [3.8] Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 …. [4.2], [6.4], [6.5], [6.7], [11.8] Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 …. [4.1], [6.2] Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1 …. [6.9] — v C G Berbatis Holdings Pty Ltd [2000] …. [12.13] — v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 …. [12.14] — v Dukemaster Pty Ltd [2009] FCA 682 …. [12.9], [12.10] — v Harbin Pty Ltd [2008] FCA 1792 …. [12.10] — Prouds Jewellers Pty Ltd [2008] FCAFC 199 …. [12.109]

— v Target Australia Pty Ltd (2002) ASAL(Digest) 55-072; (2001) ATPR 41840; [2001] FCA 1326 …. [12.10] — v Universal Sports Challenge Ltd [2002] FCA 1276 …. [12.9] Australian Consolidated Investments Ltd v Southern Equities Corporation Ltd (unreported, 1 November 1995 …. [6.8] Australian Estates Ltd v Palmer (Court of Appeal, 22 December 1989, unreported) …. [6.6] Australian Maritime Safety Authority v Quirk (1998) NSW ConvR ¶55-858 …. [2.2], [11.1], [11.8] Australian Mutual Provident Society v 400 St Kilda Road Pty Ltd [1990] VR 646 …. [19.1], [19.4], [19.5] — v — [1991] 2 VR 417 …. [6.7], [15.6], [19.1], [19.4], [19.5] — v Geo Myers & Co Ltd (1931) 47 CLR 65 …. [5.16] — v Overseas Telecommunication Commission (Australia) [1972] 2 NSWLR 806 …. [4.2], [14.7] Australian Pacific Airports (Melbourne) Pty Ltd v Nuance Group (Aust) Pty Ltd (2005) …. [11.8], [11.20] Australian Posters Pty Ltd v Wyuna Holdings Pty Ltd (1993) 15 QLD Lawyer Reps 22 …. [1.4], [1.6] Australian Property Buyers Pty Ltd v Kowalski [2006] VCAT 24 …. [23.11], [23.38] Australian Provincial Assurance Assoc Ltd v Coroneo (1938) 38 SR (NSW) 700 …. [10.5] — v Roddy (1956) …. [11.2] — v Rogers (1943) …. [11.28] Australian Retail Enterprises Pty Ltd v N D Cowan Nominees Pty Ltd [2000] VSC 538 …. [19.2], [19.5] Australian Safeway Stores Pty Ltd v Toorak Village Development Pty Ltd [1974] VR 268 …. [7.8], [15.3], [16.18], [16.28], [17.21] Australian Securities & Investment Comm v Australian Investors Forum Pty Ltd (2003) 44 ACSR 503; [2003] NSWSC 130 …. [5.10]

Automotive & General Industries Ltd’s Lease, Re (SC(Vic), Adam J, 1 May 1970unreported) …. [1.8], [5.6], [6.5], [7.7], [15.2], [17.18], [18.6], [18.7], [18.9], [19.5] Automotive & General Industries Ltd’s Lease (No 2), Re (SC(Vic), Adam J, 6 November 1970, unreported) …. [19.5] Avis v Newman (1889) 41 Ch D 532 …. [10.3] Awad v Connell [2009] VCAT 1806 …. [23.15] Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623 …. [5.6] Azkanaad Pty Ltd v Galanos Bros Pty Ltd (No 2) [2008] NSWCA 185 …. [4.2] B and B Viennese Fashions v Losane [1952] 1 All ER 909 …. [6.9] B S Stillwell & Co Pty Ltd v Budget Rent-a-Car System Pty Ltd [1990] VR 594 …. [14.1], [14.6], [14.9], [23.16], [26.2] B Seppelt and Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 …. [4.1] Baber v Kenwood Manufacturing Co Ltd (1978) …. [11.20] Bacchus Marsh Brick and Pottery Co Ltd (in liq) v Federal Building Society (in liq) (1895) 22 VLR 181 …. [10.5] Bacchus Marsh Concentrated Milk Co Ltd (In Liquidation) v Joseph Nathan and Co Ltd (1919) 26 CLR 410 …. [6.8] Bachelor Girl Clothing Pty Ltd v Martino Properties Pty Ltd (VCAT, Deputy President Macnamara, 1 April 2005) …. [23.64] Badeley v Vigurs (1854) 4 El & Bl 71; 119 ER 28 …. [16.15] Bagust v Rose (1963) 80 WN (NSW) 604 …. [11.1] Baikie v Fullerton-Smith [1961] NZLR 901 …. [2.17], [3.1], [3.8] Bailey v De Crespigny (1869) LR 4 QB 180 …. [15.1] — v John Paynter (Mayfield) Pty Ltd [1966] 1 NSWR 596 …. [10.8] — v Raymond Sullivan McGlashan [1997] ANZ ConvR 619 …. [7.3] Baillieu Knight Frank (Gold Coast) Pty Ltd v Susan Pender Jewellery Pty Ltd (1997) ATPR ¶41-542 (1996) BC9605413 …. [12.9]

Bain v Bartlett [1922] NZLR 790 …. [14.9] — v Brand (1876) 1 AC 762 …. [10.5] — v Fothergill (1874) LR 7 HL 158; [1874–80] All ER Rep 83 …. [13.4] Bairstow v Christopher Moran Holdings Ltd [1992] 2 WLR 396; [2000] ANZ ConvR 173 …. [16.25] Baker v Merckel [1960] 1 QB 657; [1960] 1 All ER 668 …. [16.19], [28.15] Balcairn Guest House Ltd v Weir [1963] NZLR 301 …. [8.6] Balfour v Balfour [1919] 2 KB 571; [1918–19] All ER Rep 860 …. [6.2] Ball & Huntley v Laffin (1876) 10 SALR 6 …. [2.11] Ballas v Theophilos (No 2) (1957) 98 CLR 193 …. [14.8] — v — [1958] VR 576 …. [14.1], [14.8] Balls-Headley v Ambler (1880) 6 VLR (L) 360 …. [17.18] Ballymaloe Pty Ltd v Retail Shop Leases Tribunal [2003] QSC 369 …. [25.8] Baltic Shipping Co v Dillon (1993) 176 CLR 344 …. [13.15] Bambury v Chapman (1960) 77 WN (NSW) 191 …. [15.13] Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452 …. [16.30] Bandy v Cartwright (1853) 8 Ex 913; 155 ER 1624 …. [8.4] Bank Line Ltd v Arthur Capel Co [1919] AC 435 …. [6.10] Bank of New Zealand v Simpson [1900] AC 182 …. [6.5] Bank of South Australia v SA Health Commission (1996) …. [11.8], [11.20] Bank of Victoria v M’Hutchison (1881) 7 VLR (L) 452 …. [2.8], [2.10], [2.11] — v Synott (1885) 11 VLR 598 …. [10.7], [10.13] Banks v Kokkinos [1998] …. [11.6] — v Transport Regulation Board [1968] …. [3.1] Bankstown Trotting Recreational Club Pty Ltd v Chisholm (2016) 18 BPR 36,219 …. [8.5] Barba v Gas & Fuel Corporation (Vic) (1976) 136 CLR 120 …. [14.1] Barbcraft Pty Ltd v Goebel Pty Ltd [2003] VCAT 1700 …. [23.39], [23.40]

Barbour v Pinn (1870) …. [11.28] Barclays Bank plc v Daejan Investments (Grove Hall) Ltd [1995] 1 EGLR 68 …. [7.8] Barina Properties Pty Ltd v Bernard Hastie (Australia) Pty Ltd [1979] 1 NSWR 450 …. [15.8] Barina Properties Pty Ltd v Bernard Hastie (Australia) Pty Ltd [1979] 1 NSWLR 480 …. [7.8], [15.8], [15.9], [15.13], [15.14], [15.15], [26.8] Barker v Williams [1933] VLR 101 …. [3.9] Barnes v Barratt [1970] 2 QB 657; [1970] 2 All ER 483 …. [3.3] — v City of London Real Property Co [1918] 2 Ch 18 …. [15.20] Barnhart v Greenshields (1853) 9 Moo PC C 32, 14 ER 204 …. [6.8], [7.4] Barraclough v Konnecke [1962] NSWR 1262; 79 WN (NSW) 821 …. [2.17] Barrett v Lounova (1982) Ltd [1990] 1 QB 348; [1989] 1 All ER 351 …. [10.1], [10.6], [10.10] — v Morgan [2002] 2 AC 264 …. [16.3], [17.16] Barrow v Isaacs & Son [1891] 1 QB 417 …. [15.8], [15.13], [17.19], [19.1] Barry & Roberts Properties Ltd v Collins [1950] St R Qd 242 …. [20.15] Barry v Heider (1914) 19 CLR 197 …. [7.4], [15.20] Bartlett v Salmon (1855) 6 De GM&G 33; 43 ER 1142 …. [1.12], [11.1] Barton v Lantsbery (2004) V ConvR ¶58-577 …. [7.8], [8.4], [13.15], [23.18], [23.48], [23.54] — v Reilly (1878) …. [10.8] Bashir v Commissioner of Lands [1960] AC 44; [1960] 1 All ER 117 …. [17.5], [17.6], [19.1] Basingstoke [1988] …. [11.8] Basingstoke and Deane Borough Council v Host Group Ltd [1988] …. [11.4], [11.8] Baskerville, Re [1910] 2 Ch 329 …. [5.17] Bass Holdings Ltd v Morton Music Ltd [1988] Ch 493 …. [14.6], [14.8], [19.5]

Batchelor v Murphy (1926) AC 63 …. [14.1] Bateman v Slayer (1987) 71 ALR 553; 8 IPR 33; ASC 55-559; ATPR 40762 …. [12.9] Bateman Television Ltd v Coleridge Finance Co Ltd [1969] NZLR 794 …. [24.2], [25.2] — v Tsaoucis [1960] NSWR 471; (1960) 77 WN (NSW) 435 …. [16.13] Bates v Donaldson [1896] 2 QB 241; [1895–9] All ER Rep 170 …. [7.11], [15.13], [15.14] Bathavon Rural District Council v Carlile [1958] 1 All ER 801; [1958] 1 QB 461 …. [2.8], [20.5] Bathurst (Earl) v Fine [1974] 1 WLR 905 …. [18.3] Batiste v Lenin (2002) 11 BPR 20,403 …. [16.28], [18.2], [19.1], [19.2] Batson v De Carvalho (1948) 48 SR (NSW) 417 …. [13.15], [18.7] Batstone v Nicholls [1939] VLR 325 …. [15.14] Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) NSW ConvR ¶55-299 …. [4.1] Bava Holdings Pty Ltd v Pando Holdings Pty Ltd (1998) 9 BPR 16,295; NSW Conv R ¶55-862 …. [14.8] Baxton v Kara [1982] 1 NSWLR 604 …. [4.8], [16.2], [17.18], [19.1] Bay Marine Pty Ltd v Clayton Properties Pty Ltd (1984) …. [14.6] Baycloud v Dowling Investments Pty Ltd [2005] …. [11.5] Bayless v Le Gros (1858) 4 CBNS 537; 140 ER 1201 …. [17.10] Bayne v Love (1909) 7 CLR 74 …. [20.25] Baynes & Co v Lloyd & Sons [1895] 1 QB 820 …. [8.2], [8.4] Baynes & Co v Lloyd & Sons [1895] 2 QB 610 …. [8.4] Baynton v Morgan (1888) 22 QBD 74 …. [15.18], [16.19] Bayside Developments Pty Ltd v Copperart Pty Ltd (1994) 11 SR (WA) 316 …. [1.6], [4.3], [4.5], [4.6], [4.8], [11.8], [11.17], [16.18], [16.21], [16.22], [16.28], [16.30], [16.31], [16.32], [16.34] BBC Hardware Ltd v Payce Properties Pty Ltd (2000) …. [11.8]

Beacon Carpets Ltd v Kirby [1985] QB 755 …. [10.1] Beacon Life and Fire Assurance Co v Gibb (1862) 1 Moo (NS) 73 …. [10.10] Beamer Pty Ltd v Star Lodge Supported Residential Services Pty Ltd [2005] VSC 236 …. [19.1], [19.4] Beardman v Wilson (1868) LR 4 CP 57 …. [15.2] Beasley v D’Arcy (1800) 2 Sch & Lef 403 …. [7.4] Beattie v Fine [1925] 47 ALT 19; [1925] VLR 363 …. [1.5], [2.8], [2.10], [2.11], [4.2], [4.8], [14.3] — v Lyttleton Borough [1966] NZLR 65 …. [2.14] Beba Enterprises Pty Ltd v Elle Pty Ltd [2013] WASAT 120 …. [26.10] Bebington’s Tenancy, Re [1921] 1 Ch 559 …. [20.9], [20.16] Beca Developments v Idameneo (No 92) Pty Ltd (1989) NSW ConvR ¶55459 …. [14.1], [14.5], [14.6] Becker v Cariste [2001] NSWSC 663 …. [13.11] Bed for Backs v Palace Pty Ltd [2006] VCAT 2677 …. [23.30] Beech v Potter (1904) …. [11.28] Beer v Bowden [1981] …. [11.8] Bees v Williams (1835) 2 Cr M & R 581; 150 ER 248 …. [16.21] Beesly v Hallwood Estates Ltd [1960] 1 WLR 549 …. [14.1] — v — [1961] Ch 105 …. [14.1] Belgravia Insurance Co Ltd v Meah [1964] 1 QB 436 …. [19.2], [19.6] Bellas v Ryan [1954] QWN 59 …. [20.26] Bellgrove v Eldridge (1954) 90 CLR 613 …. [10.13], [13.17] Bells Dry Cleaners Pty Ltd v Aapc Properties Pty Ltd [2005] ACTSC 47 …. [28.9] Belperio v Linehaul Holdings Pty Ltd (2004) 89 SASR 185 …. [16.28] Benarca Pty Ltd v Milgate [2005] VCAT 1390 …. [23.63] Benbow v Synod of the Church of England in the Diocese of Adelaide [1954] SASR 320 …. [14.2] Beneficial Finance Corporation v Multiplex Constructions Pty Ltd (1995) 36

NSWLR 510 …. [14.4] Bennett v Excelsior Land Investment & Building Co Ltd (1893) 14 LR (NSW) Eq 179 …. [9.1], [9.2] — v Suburban Centres Pty Ltd (1981) 2 BPR 9659 …. [7.2], [7.8] — v Womack (1828) 3 C & P 96; 172 ER 339 …. [9.2], [9.3], [11.15] Bergl (Australia) Ltd v Moxon Lighterage Co Ltd (1920) 28 CLR 194 …. [6.4] Berkeley v Hardy (1826) 5 B & C 355; 108 ER 132 …. [5.13] Berkley v Poulett [1977] 1 EGLR 87 …. [10.5] Bernays v Prosser [1963] 2 All ER 321; [1963] 2 QB 592 …. [2.7] Bernstein v Gardiner (1926) 26 SR (NSW) 109 …. [13.17] Berry (Frederick) Ltd v Royal Bank of Scotland [1949] 1 KB 619 …. [15.8], [15.11], [15.13] Best v Edwards (1895) 60 JP 9 …. [6.11] Best & Less (Leasing) Pty Ltd v Darin Nominees Pty Ltd (1994) 6 BPR 13,783 …. [14.6] Beswick v Beswick [1968] AC 58 …. [15.2] Bevan v Dobson (1906) 26 NZLR 69 …. [16.9] Bevillesta Pty Ltd v Sovereign Motor Inns Pty Ltd (2002) 11 BPR 20,289; [2003] ANZ ConvR 35 …. [10.10], [10.13] Bezden Pty Ltd v Castellano Nominees Pty Ltd [2003] ANZ ConvR 443; (2003) V ConvR ¶54-679 …. [14.8] BHP v QV [2004] VSC 447 …. [6.4] BICC plc v Burndy Corp [1985] Ch 232 …. [7.4] Bickel v Duke of Westminster [1977] QB 517 …. [15.12], [15.13], [15.14] Bickerton’s Aerodromes Ltd v Young (1958) …. [18.7] Big Country Developments Pty Limited v Peter Griffiths (No 3) [2015] NSWSC 1182 …. [16.18] Big Toys Pty Ltd v Bartlett [2001] …. [11.3] Bigdale Pty Ltd v Royal Motor Yacht Club of NSW Port Hacking Branch

[2010] NSWSC 1196 …. [24.2] Bill Acceptance Corporation Ltd v GWA Ltd (1983) 78 FLR 171 …. [24.3], [25.13], [26.3], [27.3], [28.3] Billing v Pill [1954] 1 QB 70 …. [10.5] Billson v Residential Apartments Ltd [1992] 1 AC 494 …. [16.2], [17.9], [17.12], [19.1], [19.4], [19.6] Binions v Evans [1972] Ch 359 …. [1.5], [2.2], [2.19] Birch v Clifford (1891) 8 TLR 103 …. [10.13] — v Prouse [1922] NZLR 913 …. [14.6] Bird v Hildage [1948] 1 KB 91; [1947] 2 All ER 7 …. [17.18] Birkdale District Electric Supply Co v Southport Corp [1926] AC 355 …. [5.6] Birmingham Dudley & District Banking Co v Ross (1888) 38 Ch D 295 …. [8.2], [8.5], [13.15] Birt & Co Pty Ltd v Leichhardt Municipal Council (1951) 18 LGR 78 …. [3.3] Bishop of Bath (1605) 6 Co Rep 34b; 77 ER 303 …. [1.5], [2.2] Bishop v Consolidated London Properties Ltd [1933] All ER Rep 963 …. [10.6] — v Taylor (1968) 118 CLR 518 …. [4.2] Biss, Re [1903] 2 Ch 40 …. [14.8] Black Swan Holdings Pty Ltd v Hurst (1993) 9 SR (WA) 285 …. [26.14] Blackburn Developments No 19 Pty Ltd v Downs Surgical (Australia) Pty Ltd (1974) 2 BPR 9141 …. [4.1] Blackler v Felpure Pty Ltd [1999] 9 BPR 17,259; [1999] NSWSC 958 …. [24.14], [28.12] Blacklocks v JB Developments (Godalming) Ltd [1981] 3 WLR 554 …. [7.4] Blackwell v Smyly (1866) 3 WW & A’B (Eq) 1 …. [14.5], [14.11] Blaiberg v Kleeves [1906] …. [11.27] Blake v Lane (1876) 2 VLR (L) 54 …. [5.13], [9.2], [16.19]

Blakesley v Whieldon (1841) 1 Hare 176; 66 ER 996 …. [9.3] Blatherwick (Services) Ltd v King [1991] Ch 218 …. [11.1] Blazey v Polletti (unreported, Supreme Court, WA, Commissioner Murray, 23 May 1989) …. [1.6] Blee v Kearney [1962] NSWR 198 …. [7.14] Blewett v Blewett [1936] 2 All ER 188 …. [18.6], [18.10] Blomidon Mercury Sales Ltd v John Pierceys Auto Body Shop Ltd (1982) 129 DLR (3d) 63 …. [14.9] Blomley v Ryan (1956) 99 CLR 362 …. [5.4], [12.14] Bloomfield v Bloomfield (1893) 9 NSW WN 188 …. [2.8] Bluehive Pty Ltd v Dukemaster Pty Ltd [2000] FCA 1307 …. [12.9] Blumberg v Wood [1966] Qd R 457 …. [20.7], [20.17], [20.20] Blumenthal v Church Commissioners for England [2005] EGLR 78 …. [7.8] Bob Jane Corporation Pty Ltd v Commercial Road Developments Pty Ltd [2007] VCAT 2120 …. [23.14], [23.15] Bob Jane T-Marts Pty Ltd v The Baptist Union of Victoria [1999] VSC 346 …. [14.4] Bocardo SA v S & M Hotels Ltd [1980] 1 WLR 17 …. [15.7], [15.10] Body Bronze International Pty Ltd v Fehcorp Pty Ltd (2011) 34 VR 536 …. 12.14 Boldmark v Cohen [1986] 1 EGLR 47 …. [11.1] Bolton’s (House Furnishers) Ltd v Oppenheim [1959] 2 All ER 473; [1959] 1 WLR 685 …. [20.17] — v — [1959] 3 All ER 90; [1959] 1 WLR 913 …. [20.17] Bonafair Holdings Pty Ltd v Hungry Jack’s Pty Ltd [2016] NSWCA 276 …. [10.11] Bonds Brewing (NSW) Ltd v Reffell Party Ice Supplies Pty Ltd (SC(NSW), Waddell CJ (in Eq), 17 August 1987, 9 September 1987, unreported) …. [20.1] Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR

600; 43 ALR 68 …. [4.8], [11.1], [11.7], [11.20], [14.1], [14.3], [14.7], [23.42] Bookman (Thomas) Ltd v Nathan [1955] 1 WLR 815 …. [15.13] Boone v Martin (1920) 47 OLR 205; 53 DLR 25 …. [11.1] Bootes v Staples & Co [1916] GLR 530 …. [2.13] Booth v Macfarlane (1831) 1 B & Ad 404; 109 ER 1022 …. [17.17] Booton v Clayton (1948) 65 WN (NSW) 164 …. [15.5], [24.18], [26.8], [27.16] Borambil Pty Ltd v O’Carroll [1972] 2 NSWLR 302 …. [1.1], [1.5] — v — [1974] 1 NSWLR 1 …. [1.1] — v — (1974) 3 ALR 391 …. [2.2] Boreland v Docker (2007) NSW ConvR ¶56-182 …. [4.1], [6.4] Borthwick-Norton v Romney Warwick Estates Ltd [1950] …. [18.7] Borzak v Ahmed [1965] 2 QB 320; 1 All ER 808 …. [17.12], [17.13] Boss v Hamilton Island Enterprises Ltd [2008] QSC 274 …. [15.13] — v — [2010] 2 Qd R 115 …. [15.13] Bostock v Bryant [1990] 2 EGLR 101 …. [1.12] Boswell v Crucible Steel Co [1924] All ER Rep 298; [1925] 1 KB 119 …. [10.5] — v — (1877) …. [14.7] Bottomley v Ambler (1877) 26 WR 566; (1878) 38 LT 545 …. [14.7] — v Bannister [1932] 1 KB 458 …. [6.7] — v — (1878) …. [11.20] Bourne & Tant v Salmon & Gluckstein Ltd [1907] 1 Ch 616 …. [7.16] Bowden v Lo (1998) 9 BPR 16,317 …. [16.36] — v Rallison [1948] 1 All ER 841 …. [2.12] Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2007] ANZ ConvR 297; [2007] FCA 708 …. [10.3], [12.14] — v — [2008] FCAFC 38 …. [10.8], [10.13]

Bowes, Re (1887) 37 Ch D 131; [1886–90] All ER Rep 693 …. [5.18] Bowman v Durham Holdings Pty Ltd (1973) 131 CLR 8 …. [14.1], [14.9] Bowser v Colby (1841) 1 Hare 109; 66 ER 969 …. [19.2] Box v Attfield (1886) 12 VLR 574; 8 ALT 45 …. [2.2], [2.8], [2.10], [2.11] — v Lock (1948) 65 WN (NSW) 291 …. [1.5], [2.2], [20.21] Boxsel v Bennett (1981) ANZ ConvR 153 …. [16.21] Boyer v Warbey [1953] 1 QB 234; [1953] 1 All ER 269 …. [15.19] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; 52 ALJR 20 …. [6.7], [15.6] Bracknell Development Corporation v Greenless Lennard Ltd (1981) …. [11.20] Bradbun Pty Ltd v Bobo Nominees Pty Ltd (1994) V ConvR ¶54-501 …. [23.13] Bradford House Pty Ltd v Leroy Fashion Group Ltd (1983) 46 ALR 305 …. [8.1], [12.12] Bradken Consolidated Ltd v The Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 …. [24.2], [25.2] Bradshaw v Pawley [1980] 1 WLR 10 …. [1.5], [1.10] Brady’s case, Re (1867) …. [4.6] Bragg v Alam [1981] 1 NSWLR 668 …. [14.10], [18.10], [20.27] — v — (1982) NSW ConvR ¶55-082 …. [20.27] Braham v Walker (1961) 104 CLR 366 …. [14.1] Braidwood v Dunn [1917] NZLR 269 …. [10.5] Brain, Re [1874] LR 18 Eq 389 …. [17.6] Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 …. [4.1], [6.6] Brambles Security Services v Bi-Lo Ltd (1992) Aust Tort Rep 81-161 …. [16.36] Branchett v Beaney (1992) 24 HLR 348; [1992] 28 EG 107 …. [13.15] Breams Property Investment Co Ltd v Stroulger [1948] 2 KB 1; [1948] 1 All

ER 758 …. [15.20] Brechin and Drapery Importing Co Ltd, Re [1928] NZLR 241 …. [14.3] Brennan v Kinjella (1993) 6 BPR 97,442 …. [6.5], [14.3], [14.6], [14.8] — v — [1993] NSW ConvR 59,858 …. [6.5] — v Thomas [1953] VLR 111 …. [3.8] Bressan v Squires [1974] 2 NSWLR 460 …. [14.8], [14.10] Bretair Pty Ltd v Cave [2012] VCAT 1039 …. [23.19] — v Lenro Properties Pty Ltd [2004] VCAT 1141 …. [23.40] Bretherton v Paton [1986] 1 EGLR 172 …. [1.4] Brew Bros Ltd v Snax (Ross) Ltd [1970] 1 QB 612; [1970] 1 All ER 587 …. [10.8], [10.10] Brewer v Eaton (1783) 3 Doug 230; 99 ER 627 …. [19.3] Brian Stevens Pty Ltd v Clarke (1965) 83 WN (Pt 1) (NSW) 32 …. [10.3] Brickworks Markets Pty Ltd, Re (1997) 74 FCR 165 …. [5.9], [6.10] Bridge v Quick (1892) 61 LJQB 375 …. [19.5] Briggs v Pinchbeck [1937] SASR 30 …. [17.18] Brightwell v Foley (1946) 63 WN (NSW) 204 …. [15.13] Brikom Investments Ltd v Carr [1979] …. [10.8] — v Seaford [1981] 1 WLR 863 …. [1.10], [4.1], [4.2] Brilliant v Michaels [1945] 1 All ER 121 …. [1.5], [2.2] Brimbank City Council v Westvale Community Centre Inc [2006] VSC 100 …. [23.18] Briridge Pty Ltd v Charter Hall Real Estate Management Services Pty Ltd [2014] QCAT 469 …. [25.14] Brisbane City Council v Chu Cho Far; Ex parte Chu Cho Far [1967] Qd R 568 …. [20.9] — v Group Projects Pty Ltd (1979) 145 CLR 143 …. [6.10] Brisbane Water County Council v Commissioner of Stamp Duties [1979] 1 NSWLR 310 …. [26.10] British Airways PLC v Heathrow Airport Ltd [1992] …. [11.8]

British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd [1980] QB 137 …. [7.4], [11.3] British Electrical Traction Co v Inland Revenue Commissioners [1902] 1 KB 441 …. [11.1] British Gas Corp v Universities Superannuation Scheme Ltd [1986] …. [11.4], [11.8] British Telecommunications plc v Sun Life Assurance Society plc [1996] Ch 69 …. [10.6], [10.7], [10.8] Bromley Park Garden Estates Ltd v Moss [1982] 1 WLR 1019 …. [15.13], [15.14] Brooker’s Colours Ltd v Sproules (1910) 10 SR (NSW) 839 …. [17.20], [19.2] Brookes v Drysdale (1877) 3 CPD 52 …. [9.2] Brooks v Wyatt (1992) 112 FLR 12 …. [14.7] Brooks-Thornley v McMurtrie (1904) 21 WN (NSW) 127 …. [1.4], [1.5] Brough v Nettleton [1921] 2 Ch 25 …. [4.6] Brown & Root Technology Ltd v Sun Alliance and London Assurance Co Ltd [2001] Ch 733 …. [1.15], [15.17] Brown Brothers Land Holdings No 1 Pty Ltd v Cmr of State Revenue [2006] VCAT 2192 …. [23.40] Brown v Gould [1972] Ch 53; [1971] 2 All ER 1505 …. [4.2], [14.3] — v Hardy (1868) 5 WW & A’B (L) 245 …. [13.3] — v Heffer (1967) 116 CLR 344 …. [4.8], [14.7] — v The Jam Factory Pty Ltd (1981) 35 ALR 79; 53 FLR 340; ATPR 40213; [1981] ANZ ConvR 156 …. [12.9], [12.11], [12.12] — v Trumper (1858) 26 Beav 11; 53 ER 800 …. [2.3], [2.4] — v Wilson (1949) 93 Sol Jo 640 …. [16.3] Browne v Flower [1911] 1 Ch 219 …. [8.2], [8.4] Brunsden v Humphrey (1884) 14 QBD 141 …. [23.61] Brunswick Development Pty Ltd v Shock Records Pty Ltd (1996) V ConvR

¶54-604 …. [4.1], [6.2], [13.4], [16.28], [16.30] — v — (1999) …. [4.8] Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 …. [1.2], [1.3], [1.4], [3.2] Bryen v Reus [1961] SR (NSW) 396 …. [7.12], [15.16] BS Stillwell & Co Pty Ltd v Budget Rent-a-Car System Pty Ltd [1990] VR 589 …. [14.1], [16.8], [23.16] BSC Footwear Ltd v Ridgway (Inspector of Taxes) [1972] AC 544 …. [26.10] Buchanan v Byrnes (1906) 3 CLR 704 …. [13.4], [16.11], [16.18], [16.22], [16.28], [16.30], [16.31], [16.32] Buckby v Speed [1959] Qd R 30 …. [1.9], [20.8] Buckeridge v Tucker (1899) 17 NZLR 513 …. [14.6] Buckland v Papillon [1866] LR 2 Ch 67 …. [14.9] Budd-Scott v Daniell [1902] 2 KB 351 …. [8.4] Budget Rent-a-Car System Pty Ltd v B S Stillwell & Co Pty Ltd (1989) V ConvR ¶54-336 …. [16.8] Budmore Pty Ltd v Johnson (1993) 6 BPR 97,486 …. [1.5], [1.15], [4.1], [4.5], [4.6], [4.7] Bunyip Buildings Pty Ltd v Gestetner Pty Ltd [1969] SASR 87 …. [10.11] Burbridge v Vosedo Pty Ltd [2005] NSWADT 8 …. [24.3] Burke v Gillett (1994) V ConvR ¶54-507 …. [1.6], [15.15], [23.36], [24.5], [25.5], [26.4] Burne v Cambridge (1836) 1 M & Rob 539; 174 ER 185 …. [5.15] Burnett v Guice [1946] VLR 257 …. [3.4] Burnham v Carroll Musgrove Theatres Ltd (1928) 41 CLR 540 …. [1.2], [2.14], [2.19], [2.20], [17.12] Burns Philp Hardware Ltd v Howard Chia Pty Ltd (1979) 144 CLR 696 …. [6.6] — v — (1987) …. [11.8]

Burns v Dennis (1948) 48 SR (NSW) 266; 65 WN (NSW) 55 …. [1.12], [4.8] — v Shire of Woorayl [1944] VLR 166 …. [3.3] Burrell v Cameron (SCNSW, Windeyer J, 4 April 1997, unreported) …. [14.8] — v Duncan [1957] St R Qd 52 …. [15.2] Burton v Barclay [1824–34] All ER Rep 437; (1831) 7 Bing 745; 131 ER 288 …. [16.8] — v Camden LBC [2000] 2 AC 399 …. [5.15] Bury v Thompson [1895] 1 QB 6 …. [20.25] Bush v National Australia Bank Ltd (1992) 35 NSWLR 390 …. [6.8] Butcher v Bowen (1963) 80 WN (NSW) 1520 …. [26.4] — v — [1964] NSWR 36; (1963) 80 WN (NSW) 1520 …. [2.13], [3.3], [20.24] — v Lachlan Elder Realty (2004) 218 CLR 592 …. [12.9] — v Poole Corporation [1943] 2 All ER 572; [1943] KB 48 …. [17.10], [21.1] Butlin v Cox (1955) 73 WN (NSW) 44 …. [3.8] Butlin’s Settlement Trusts, Re [1976] Ch 251 …. [6.8] Butt v McDonald (1896) 7 QLJ 68 …. [10.5] Buttons’s Lease, Re [1964] Ch 263 …. [14.1] Butts v O’Dwyer (1952) 87 CLR 267; [1953] ALR 117 …. [4.1], [14.7] Byrnes v Kendle (2011) 243 CLR 253 …. [6.4] C & A Pensions Trustees Ltd v British Vita Investments Ltd [1984] …. [7.8] C Czarnikow Ltd v Koufos [1969] 1 AC 350 …. [13.4], [16.30] C H Bailey Ltd v Memorial Enterprises Ltd [1974] 1 All ER 1003; [1974] 1 WLR 728 …. [11.1], [11.3], [11.6] C H Magill v National Australia Bank [2001] NSWCA 221; (2001) Aust Contract R ¶90-131 …. [6.6]

Cable v Bryant [1908] 1 Ch 259 …. [8.5] CAC Pty Ltd v Diamond Hill International Pty Ltd (1996) 7 BPR 14,754 …. [7.3] Cadogan v Dimovic [1984] 2 All ER 168; [1984] 1 WLR 609 …. [19.4], [19.6] Caerphilly Concrete Products Ltd v Owen [1972] 1 WLR 372 …. [14.2] Cairns Motor Services Ltd v Texaco Ltd [1994] 1 WLR 1249 …. [15.20] Cairns Shelfco No 16 Pty Ltd v Armanel Pty Ltd [2004] QSC 122 …. [12.9] Calabar Properties Ltd v Seagull Autos Ltd [1969] 1 Ch 451 …. [17.11], [17.12] — v Stitcher (1983) 3 AER 759 …. [13.15] — v — [1984] 1 WLR 287 …. [10.13], [13.15] Callaghan v Merivale CBD Pty Ltd [2006] …. [11.3], [11.6], [11.8], [11.9] Callan, Ex parte; Re Smith [1968] 1 NSWR 433; 87 WN (Pt 1) (NSW) 595 …. [20.17] Caltex Oil (Australia) Pty Ltd v Baltis (1981) …. [11.20] Caltex Properties Ltd (in liq) v Love (1997) 95 LGERA 132 …. [1.3], [1.4], [2.19], [3.3] Calthorpe v McOscar [1924] …. [10.8] Calvert v Turner (1865) 2 WW & a’B (L) 174 …. [20.3] Cam & Sons Pty Ltd v Commissioner of Land Tax (1965) 112 CLR 139; [1965] ALR 852 …. [1.14] Camberwell & South London Building Society v Holloway (1879) 13 Ch D 754 …. [1.1] Cambridge Co-Ordinates Pty Ltd v Vikings Press Pty Ltd (2001) V ConvR ¶58-553 …. [23.18], [23.19] Campbell v Astil [2004] 1 WLR 403 …. [24.6] — v — [2004] NSWADT 277 …. [24.6] — v Edwards (1976) …. [11.20], [14.7] — v Morris (1952) 69 WN (NSW) 40 …. [6.9]

— v Payne (1953) 53 SR (NSW) 537 …. [16.28], [17.1], [17.22], [20.1] Campbell v Payne (1953) 53 SR (NSW) 537 …. [20.1] Campden Hill Towers Ltd v Gardner [1977] QB 823 …. [10.10] Canadian National Fire Insurance Co v Colonsay Hotel Co [1923] SCR 688 …. 13.17 — v — [1923] 95 DLR (3d) 242 …. [13.17] Canadian National Railways and Canadian Pacific Ltd, Re (1978) …. [6.6] Canas Property Co Ltd v K L Television Services Ltd [1970] 2 QB 433; [1970] 2 All ER 795 …. [16.30], [17.12], [17.17] Cancer Care Institute of Australia Pty Ltd (admin apptd), Re (2013) 16 BPR 31,529 …. [10.5] Canning v Temby (1905) 3 CLR 419 …. [16.33] Cannock v Jones (1849) 3 Ex 233 …. [7.1] Cannon Brewery Co Ltd v Signal Press Ltd (1928) 139 LT 384; [1928] All ER Rep 108 …. [18.10] Cannon Enterprises Ltd v Ranchhold [1975] 2 NZLR 57 …. [19.6] Canon Australia Pty Ltd v Patton (2007) 244 ALR 759 …. 12.14 Capel Services Ltd v Legal and General Assurance Society Ltd (1984 unreported) …. [11.8], [11.20] Capital and Counties Bank v Rhodes [1903] 1 Ch 631 …. [16.8] Capital and Equity Group Pty Ltd v Hilton Central Ltd [2010] SASC 197 …. [27.7] Capital Finance Co Ltd v Bray [1964] 1 WLR 323 …. [10.5] Capital Market Brokers Pty Ltd v Hamelyn UPC Ltd (SC(NSW), Young J, 2 May, 1989 unreported) …. [1.15] Carberry v Gardiner (1936) 36 SR (NSW) 559 …. [1.9], [2.8] Carbone v Zecevich [1954] SASR 296 …. [19.6] Carbure Pty Ltd v Brile Pty Ltd [2002] ANZ ConvR 584; [2002] VSC 272 …. [10.1], [10.8], [10.10] Card v Bilderbeck [1951] NZLR 296 …. [10.8]

Carlton Cricket etc Club v Joseph [1970] VR 487 …. [5.12] Carmody v Delehunt (1984) …. [11.3] Carpet Fashion Pty Ltd v Forma Holdings Pty Ltd [2004] NSWCA 150 …. [8.5] Carr v J A Berriman Pty Ltd (1953) 89 CLR 327 …. [16.33], [16.34] Carradine Properties Ltd v Aslam [1976] 1 WLR 442 …. [14.8], [20.17], [20.20] Carrathool Hotel Pty Ltd v Scutti [2005] ANZ ConvR 471; (2006) NSWw ConvR ¶56-132; [2005] NSWSC 401 …. [10.1], [10.6], [10.10] — v — (2006) NSW ConvR ¶56-132 …. [6.8], [11.16] Carson v Wood (1884) 10 VLR (L) 223 …. [17.18] Carstairs v Taylor (1871) LR 6 Ex 217 …. [10.1] Carswell v Collard (1893) 20 R (HL) 47 …. [16.33] Carter v Aldous [1921] VLR 234 …. [20.3] — v Hyde (1923) 33 CLR 115 …. [14.1], [14.8] — v Schmitt [2003] NSWSC 1166 …. [14.8] — v Smith (1952) 52 SR (NSW) 290; 69 WN (NSW) 326 …. [4.10] Castellain v Preston (1883) 11 QBD 380 …. [13.17] Castor v Brisbane City Council [1955] St R Qd 348 …. [3.3] Cathedral Place Pty Ltd v Hyatt of Australia Ltd [2003] VSC 385 …. [15.9], [15.12], [15.13] Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20 …. [14.8] CB Cold Storage Pty Ltd v IMCC Group (Australia) Pty Ltd [2017] VSC 23 …. [23.8], [23.18] Celsteel Ltd v Alton House Holdings Ltd (No 2) [1986] 1 WLR 666 …. [8.4], [13.15] Centaploy Ltd v Matlodge Ltd [1974] Ch 1; [1973] 2 All ER 720; [1973] 2 WLR 832 …. [20.2] Central Estates (Belgravia) Ltd v Woolgar (No 2) [1972] 3 All ER 610; [1972] 1 WLR 1048 …. [17.18], [18.7], [19.4], [19.5], [20.31]

Central Estates Ltd v Secretary of State for the Environment (1995) …. [11.6] Central London Property Trust v Hightrees House Ltd [1947] …. [11.21] Centrepoint Custodians Pty Ltd v Lidgerwood Investments Pty Ltd [1990] VR 411 …. [6.5], [7.16] Centrovincial Estates plc v Bulk Storage Ltd (1983) 46 P & CR 393; [1983] 2 EGLR 45 …. [11.9], [15.18] Chai Saw Yin v Liew Kwee Sam [1962] AC 304 …. [24.19], [25.15], [27.17] Chaka Holdings Pty Ltd v Sunsim Pty Ltd (1987) NSW ConvR ¶55-367 …. [1.4], [3.8] Chambers v Kingham (1878) 10 Ch D 743 …. [5.18], [16.8] Chan v Cresdon Pty Ltd (1989) 168 CLR 242; 89 ALR 552 …. [1.6], [2.7], [2.8], [4.1], [4.8], [13.1], [14.1], [15.16], [19.1], [23.11] — v Zacharia (1984) 53 ALR 417 …. [5.12], [14.8] Chandless-Chandless v Nicholson [1942] 2 KB 321; 2 All ER 315 …. [19.2], [19.5] Chang v Registrar of Titles (1976) 137 CLR 177 …. [4.8] Chaplin & Staffordshire Potteries Waterworks Co, Re [1922] 2 Ch 824 …. [5.18] Chaplin v Smith [1926] 1 KB 198 …. [15.3], [26.8] Chapman & Hobbs: Re (1885) …. [11.27] — v Chapman [1954] AC 429 …. [7.4] — v Towner (1840) 6 M&W 100; 151 ER 338 …. [1.6] Chappell & Co Ltd v Nestle Co Ltd [1959] 2 All ER 701; [1960] AC 87 …. [23.18] Chappell v Gregory (1864) 34 Beav 250; 55 ER 631 …. [10.1] Charalambous v Ktori [1972] 1 WLR 951 …. [9.2] Charles Clay & Sons Ltd v British Railways Board [1971] Ch 725; [1971] 1 All ER 1007 …. [1.5], [4.2] Charmar Electrical Pty Ltd v Minda Inc (1990) 55 SASR 112 …. [1.6], [4.8], [11.8], [15.20], [16.28], [16.30], [16.34]

Chatfield v Elmstone Resthouse Ltd [1975] 2 NZLR 269 …. [7.4], [10.6], [10.8], [11.3] Chatham Empire Theatre (1955) Ltd v Ultrans [1961] 1 WLR 817 …. [19.6] Chatsworth Properties Ltd v Effiom [1971] 1 All ER 604 …. [5.16] Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 AC 180 …. [6.9] Chelfield Pty Ltd v Goldsea Pty Ltd; WC Pty Ltd, Re [2003] 2 Qd R 243 …. [17.15], [18.3], [18.6], [18.10] Chelsea Cloisters Ltd (in liq), Re (1980) 41 P & CR 98 …. [13.14] Chelsea Estates Investment Trust Co Ltd v Marche [1955] 115 CLR 1; [1955] Ch 328; [1966] ALR 929 …. [19.4], [19.6] Chelsea Investments Pty Ltd v Federal Commissioner of Taxation (1966) 115 CLR 1; 10 AITR 52 …. [1.1], [1.2], [1.4], [1.7], [16.11], [16.14] Cheshire Lines Committee v Lewis & Co (1880) 50 LJQB 121 …. [1.5] Chester v Buckingham Travel Ltd [1981] 1 WLR 96 …. [7.16], [8.10], [9.1], [9.2], [9.3] Chesterfield v Janssen (1750–1) 2 Ves Sen 125; Ves Sen Supp 297; 28 ER 82,531 …. [19.1] Chesworth v Farrer [1967] 1 QB 407 …. [16.36] Chetcuti v Scarf [2000] NSWSC 637 …. [24.9] Cheyne v Moses [1919] St R Qd 74 …. [15.20], [17.18] Chipper v Octra Nominees Pty Ltd [2006] FCA 1633 …. [14.4] Choi v Trust Co of Australia Ltd (2001) V ConvR ¶58-549; [2000] VCAT 1867 …. [23.42], [23.57] Chrisdell v Johnson [1987] 2 EGLR 123 …. [17.18] Christiansen v Klepac [2001] NSWSC 385 …. [16.30] Christopher v Wright [1949] VLR 145 …. [2.4], [2.12] Chronopoulos v Caltex Oil (Australia) Pty Ltd (1982) 70 FLR 8; 45 ALR 481 …. [15.17], [16.14] Church v Brown (1808) 15 Ves 258; 33 ER 752; [1803–13] All ER Rep 440 …. [9.1]

Churcher v Danis Hotels Pty Ltd (SC(NSW), Holland J, 12 February 1980, unreported) …. [14.8], [14.9] Churchill v Williams [1877] Knox 52 …. [13.15] Cicinave Pty Ltd v Jasco Pty Ltd (1989) 5 BPR 97,329 …. [18.3], [18.6], [19.4] Cihan v Oncu [2004] 11 BPR 21,653 …. [16.3] Citibank Pty Ltd v Simon Fredericks Pty Ltd [1993] 2 VR 168 …. [7.4], [15.20] City & Westminster Properties (1934) Ltd v Mudd [1959] Ch 129; [1958] 2 All ER 733 …. [6.5], [6.8], [19.4] City and Metropolitan Properties Ltd v Greycroft Ltd [1987] 1 WLR 1085 …. [15.20] City Mutual Life Assurance Society Ltd v Lance Creek Meat Works Pty Ltd [1976] VR 1 …. [1.14], [2.19], [15.20] City of Aberdeen Council v Clark (1999) …. [11.4], [11.7] City of Ballarat v Waller [1924] VLR 115 …. [8.3], [8.7] City of Camberwell v Reed [1954] VLR 65 …. [20.27] City of London v Nash (1747) 26 ER 1095 …. [1.11] City of London Corporation v Fell [1993] 4 All ER 968 …. [15.1] — v — [1993] QB 589 …. [1.2], [15.1] — v — [1994] 1 AC 458 …. [15.20] City of Melbourne Gold Mining Co v R (1867) 4 WW & a’B (Eq) 148 …. [4.8] City of Melbourne v Holdenson and Nielson Fresh Foods Pty Ltd [1959] VR 626 …. [5.7], [5.8] City of Rockingham v PMR Quarries Pty Ltd (2001) 118 LGERA 93; [2001] WASCA 317 …. [1.2], [1.3], [24.2], [25.2], [26.2], [27.2], [28.2] City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146 …. [5.6], [5.7], [5.8], [6.7], [6.10] City Parking Pty Ltd v Ausvest Holdings Pty Ltd (1999) V ConvR ¶54-597 …. [7.16]

City West Centre Pty Ltd v Galaxy Media Pty Ltd (1998) 9 BPR 16,313 …. [10.5], [16.36] Civil Service Co-operative Society Ltd v McGrigor’s Trustee [1923] 2 Ch 347; [1923] All ER Rep 595 …. [17.18], [18.4], [18.7], [18.9] Clarey v Principal and Council of the Women’s College (1953) 90 CLR 170 …. [7.14] Clark Equipment Australia Ltd v Covcat Pty Ltd (1987) …. [12.9] Clarke v Austin (1856) …. [11.28] — v Japan Business Machines (Australia) Pty Ltd [1984] 1 Qd R 404 …. [18.6] — v Tresider (1867) 4 WW & A’B (L) 164 …. [10.5], [16.36] — v Tyler (1949) 78 CLR 646 …. [1.4], [20.8] — v Watson [1943] VLR 81 …. [16.3] Classic International Pty Ltd v Lagos (2002) 60 NSWLR 241 …. [6.8] Claude Neon Ltd v Melbourne and Metropolitan Board of Works (1969) 43 ALJR 69 …. [1.4], [3.6] Clegg v Hands (1890) 44 Ch D 503 …. [15.19] Clement v Morris [1922] VLR 189 …. [6.11] Cleverdon v Townsend (1894) 16 ALT 69 …. [17.10] Clifton Securities Ltd v Huntley [1948] 2 All ER 283 …. [17.17] Clifton v Palumbo [1944] …. [4.1] Close v Wilberforce (1838) 1 Beav 112; 48 ER 881 …. [15.21] Clover Pines Pty Ltd v Avin Operations Pty Ltd [2003] VSC 242 …. [17.17] Clowes v Bentley Pty Ltd [1970] WAR 24 …. [10.8] — v Hughes (1870) LR 5 Exch 160 …. [1.5], [2.2] Clyne v Lowe (1968) 69 SR (NSW) 433 …. [14.5] CMA Recycling Victoria Pty Ltd v Doubt Free Investments Pty Ltd [2012] TASFC 7 …. [16.35], [18.2] — v — [2012] TASSC 7 …. [18.2] Coal Commission v Earl Fitzwilliam’s Royalties Co [1942] Ch 365 …. [11.1]

Coastal Estates Case [1965] VR …. [16.30] Coatsworth v Johnson (1885) 55 LJQB 220 …. [6.8] — v — (1886) 55 LJ QB (NS) 220 …. [4.1] Cobb v Stokes (1807) 8 East 358; 103 ER 380 …. [2.3], [16.5], [17.17], [23.63] Cobram Laundry Services Pty Ltd v Murray Goulburn Cooperative Co Ltd [2000] VSC 353 …. [14.2] Cockburn v Cockburn [1921] NZLR 652 …. [10.5] — v Smith [1924] …. [10.1] Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; 41 ALR 367; [1982] HCA 21 …. [1.4], [6.4], [6.5], [6.6], [6.10], [8.1] Cody v Martyr (1954) 71 WN (NSW) 109 …. [3.6] Coen v Costelloe (1952) 69 WN (NSW) 230 …. [16.18] Cohen v Centrepoint Freeholds Pty Ltd (1982) 66 FLR 57 …. [12.9] — v Donegal Tweed Co Ltd (1935) 79 Sol Jo 592 …. [17.11] — v Milner [1960] VR 499 …. [2.13], [2.14], [3.9], [20.2], [20.3] — v Popular Restaurants Ltd [1917] 1 KB 480; [1916–17] All ER Rep 1113 …. [13.16], [15.19] Colchester Borough Council v Smith [1991] Ch 448 …. [1.4], [2.19] Cole v Kelly [1920] All ER Rep 537; [1920] 2 KB 106 …. [1.9], [7.13], [15.20] Colebeck v Girdlers Co [1896] 1 QB 234 …. [10.1] Coleman v Dean (1870) 1 VR (Eq) 142 …. [9.3], [17.8] Coleman, Ex parte; Re Smith (1934) 7 ABC 1 …. [7.4] Coles Supermarkets Australia Pty Ld v Australian Retail Freeholds Pty Ltd (1996) 16 WAR 282 …. [13.11] Colin Marg Pty Ltd v Mackay Medical Investment Ltd [2006] …. [11.8], [11.20] Collector of Customs v Chemark Services Pty Ltd (1993) 42 FCR 585; 114

ALR 531 …. [23.18], [24.2], [25.2] Collier Constructions Pty Ltd v Foskett Pty Ltd (1990) 97 ALR 460 …. [12.9] Collier v Howard (23 April 1996) NSW Comm Trib) …. [16.36] — v Mason (1825) …. [11.20] Collins v Claughton [1959] 1 WLR 145 …. [16.18] — v Feltham Urban District Council [1937] 4 All ER 189 …. [26.10] — v Hopkins [1923] 2 KB 617; [1923] All ER Rep 225 …. [8.6] — v Winter [1924] NZLR 449 …. [10.1], [10.11] — v Wragge (1926) 26 SR (NSW) 53; 43 WN (NSW) 35 …. [14.3] Collins Hill Group Pty Ltd v Trollope Silverwood and Beck Pty Ltd [2002] VSCA 205 …. [6.6] Collison v Lettsom (1815) 6 Taunt 224; 128 ER 1020 …. [15.20] Colman v Golder [1957] VR 196 …. [4.5], [4.6], [15.17], [16.13] Colonial Bank v Roache (1870) 1 VR (L) 165 …. [5.16] Colonial Investment & Agency Co Ltd v Cobain (1888) 14 VLR 740 …. [13.4] Colvin v Bowen (1958) 75 WN (NSW) 262 …. [15.12], [15.13] — v Bradley Brothers Pty Ltd (1943) …. [12.16] Colyton Investments Pty Ltd v McSorley (1963) 107 CLR 177; [1963] ALR 487 …. [5.18] Combara Nominees Pty Ltd v McIlwraith-Davey Pty Ltd (1991) 6 WAR 408 …. [6.7], [8.7], [10.3], [10.8] Combe v Combe [1951] …. [11.21] Comber v Fleet Electrics Ltd [1955] 1 WLR 566 …. [7.8], [15.15] Cominos v Rekes [1979] 2 BPR 9619 …. [15.8], [15.9] Commercial Bank of Australia v Amadio (1983) 151 CLR 447 …. [12.14] Commercial General Administration Ltd v Thomsett [1979] 1 EGLR 62 …. [7.14] Commission for New Towns v Cooper (Great Britain) [1995] Ch 259 ….

[6.8] Commissioner of Inland Revenue v Watson [1960] NZLR 259 …. [25.5] Commissioner of Stamp Duties (NSW) v Brasch (1937) 57 CLR 69; [1937] ALR 246 …. [5.9], [5.18], [11.1], [11.22], [16.25] v Carlenka Pty Ltd (1995) 41 NSWLR 329 …. [6.8] — v J V (Crows Nest) Pty Ltd (1987) 7 NSWLR 529; (1987) 86 ATC 4740 …. [11.1] Commissioner of Stamps (WA) v Whiteman Ltd (1940) 64 CLR 407 …. [10.5] Commissioner of State Revenue (Vic) v Price Brent Services Pty Ltd [1995] 2 VR 582; (1994) 94 ATC 4672 …. [11.1] — v — [1995] …. [23.20] Commissioner of State Revenue v Uniqema (2004) 9 VR 523 …. [10.5] Commissioner of Taxation v DB Rreef Funds Management Ltd (2006) 152 FCR 437; [2006] FCAFC 89 …. [23.41] Commissioner of Taxes (Qld) v Camphin (1937) 57 CLR 127 …. [14.1] Commissioners of Crown Lands v Page [1960] 2 QB 274; [1960] 2 All ER 726 …. [8.4] Commissioners of State Savings Bank of Victoria v Millane [1931] VLR 18 …. [17.14] Commissioners of Works v Hull [1922] 1 KB 205; [1921] All ER Rep 508 …. [17.11], [17.12] Commonwealth Bank of Australia v Baranyay [1993] 1 VR 589 …. [5.16] — v Figgins Holdings Pty Ltd [1994] 2 VR 505 …. [7.4], [14.6], [15.20], [16.18], [16.19], [23.18], [23.30] — v Friedrich (1991) 5 ACSR 115; 9 ACLC 946 …. [23.36] Commonwealth Development Bank of Australia v Eagle Hotels Pty Ltd (1990) NSW ConvR ¶55-506 …. [16.34] Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47 …. [1.3], [1.12], [2.7], [2.13], [2.19], [4.8], [15.5], [24.18], [26.8], [27.16]

— v — (1945) 62 WN (NSW) 240 …. [15.5] Commonwealth Life Assurance Co v Anderson [1946] 46 SR (NSW) 47 …. [1.12] Commonwealth of Australia v Anderson (1961) 105 CLR 303; [1961] ALR 354 …. [22.3] — v Antonio Giorgio Pty Ltd (1986) 12 FCR 51; 67 ALR 244 …. [14.1], [14.6], [14.9] — v Clarke [1994] 2 VR 333 …. [1.15] — v Silverton Ltd (1997) 130 ACTR 1 …. [13.17] — v Verwayen (1990) 170 CLR 394 …. [14.6] — v Wawbe Pty Ltd (1999) V ConvR ¶54-599; [1998] VSC 82 …. [11.20], [23.40] Commonwealth Oil Refineries Ltd v Hollins [1956] VLR 169 …. [4.6], [13.6], [13.9] Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 …. [10.13], [13.4], [13.15], [16.30] — v Anderson (1961) 105 CLR 303; [1961] ALR 354 …. [5.6], [22.3] — v Bogle (1953) 89 CLR 229 …. [24.2], [25.2], [26.2] — v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372 …. [24.2], [25.2] — v GIO Compulsory Third Party Insurance Ltd (1997 unreported) …. [11.5] — v K N Harris Pty Ltd [1965] NSWR 63 …. [1.3], [20.5], [20.9] — v Newcrest Mining (WA) Ltd (1995) 130 ALR 193 …. [14.8] — v Orr (1981) 58 FLR 219 …. [5.16] — v Rhind (1966) 119 CLR 584; [1967] ALR 483 …. [5.6] — v Verwayen (1990) 170 CLR 394; 95 ALR 321 …. [1.15] — v Wawbe Pty Ltd (1999) …. [11.20] Commonwealth Bank of Australia v Barker (2014) 88 ALJR 814; 312 ALR 356; [2014] HCA 32 …. [6.9] — v Figgins Holdings Pty Ltd [1994] 2 VR 505; (1994) V ConvR ¶54-492

…. [15.20], [16.18], [16.19] Commonwealth-Reid v Public Trustee [1944] …. [11.11] Congleton Corporation v Pattison (1808) 10 East 130; 103 ER 725 …. [15.19], [15.20] Connaught Restaurants Ltd v Indoor Leisure Ltd [1994] 1 WLR 501 …. [7.4] Connolly v Ryan (1922) 30 CLR 498 …. [4.8] Connor v McManus (1925) 27 WALR 104 …. [16.18] Conodate Investments v Bentley Quarry Engineering Co (1970) 216 EG 1047 …. [13.15] Conoid Pty Ltd v International Theme Park Ltd [2000] NSWCA 189 …. [24.9] Conquest v Ebbetts [1896] AC 490; [1895–9] All ER Rep 622 …. [10.13] Consolidated Development Pty Ltd v Holt (1986) 6 NSWLR 607 …. [14.1], [17.10] Consolidated Entertainments Ltd v Taylor [1937] 4 All ER 432 …. [5.10] Con-Stan Industries v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226 …. [1.15] Construction, Forestry, Mining and Energy Union v Hadkiss (2007) 160 FCR 151 …. [12.9], [12.10] Cook v Evans (1948) 49 SR (NSW) 83 …. [1.9] — v Rowe [1954] VLR 309 …. [5.12], [5.15], [7.12], [15.16] Cooney v Burns (1922) 30 CLR 216; 28 ALR 181 …. [4.5] — v Millar [1921] VLR 254 …. [10.5] Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1991) …. [11.8] Cooper v Dick (1862) …. [11.28] — v Federal Commissioner of Taxation (1958) 100 CLR 131; 7 AITR 333 …. [16.9] Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1 …. [7.8], [10.13], [13.11]

Coopers & Lybrand Ltd v William Schwartz Construction Co Ltd (1980) 116 DLR (3d) 450 …. [15.14] Copley v Newmark [1950] VLR 17 …. [15.2], [15.3] Copper, Ex parte (1865) 34 LJ Ch 373 …. [5.19] Copperart Pty Ltd, Re (1995) 16 ACSR 351 …. [14.1], [14.6], [14.9] — v Bayside Developments Pty Ltd (1996) 16 WAR 396 …. [4.2], [4.8], [16.18], [16.21], [16.21], [16.28], [16.30], [16.31], [16.32], [16.34] Corbett v Plowden (1884) 26 Ch D 678 …. [5.16] Cornillie v Saha and Bradford & Bingley Building Society (1996) 72 P & CR 147 …. [17.18] Cornish v Searell (1828) 8 B & C 471; 108 ER 1118 …. [1.14] — v Stubbs (1870) LR 5 CP 334 …. [3.7] Coronation Street Industrial Properties Ltd v Ingall Industries plc [1989] 1 WLR 304 …. [15.20] Corpco No 23 Pty Ltd v JS Hemingway Investments Pty Ltd [2003] …. [11.20] Corpers (No 664) Pty Ltd v NZI Securities Australia Ltd (1989) NSW ConvR ¶55-475 …. [1.15] Cosh’s Contract, Re [1897] 1 Ch 9 …. [15.15] Costain Property Developments Ltd v Finlay & Co Ltd (1988) 57 P & CR 345 …. [13.4] Cotesworth v Spokes (1861) 10 CBNS 103; 142 ER 389 …. [19.3] Cotrell Pty Ltd v D and M Pelle Holdings Pty Ltd [2006] ACTCA 4 …. [13.11] Coulls v Bagot’s Executor and Trustee Co Ltd (1967) 119 CLR 460 …. [10.13], [15.2] Council of the Upper Hunter County District v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 …. [6.8] Cousin v Grant (1991) 103 FLR 236 …. [7.1] Cousins v Phillips (1865) 2 H & C 892; 159 ER 786 …. [16.3] Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; [1937] ALR 273

…. [3.1], [3.8], [3.9] Cox v Harper [1910] 1 Ch 480 …. [11.1] Crabb v Arun District Council [1976] Ch 179 …. [19.1] Craddock Bros Ltd v Hunt, [1923] 2 Ch 136; [1923] All ER Rep 394 …. [6.8] Crago v Julian [1992] 1 WLR 372 …. [1.6], [15.17] Cram v Bellambi Coal Co Ltd (1964) 82 WN (NSW) (Pt 1) 18 …. [10.10] Crane v Morris [1965] 1 WLR 1104 …. [1.4] Crate v Miller [1947] KB 946; 2 All ER 45 …. [20.4], [20.5], [20.21] Craven v Geal [1932] VLR 172 …. [10.5] Crawley BC v Ure [1996] QB 13 …. [20.8] Crédit Suisse v Beegas Nominees Pty Ltd [1994] 4 All ER 803 …. [8.1], [10.1], [10.8] Creer v P & O Lines of Australia Pty Ltd (1971) 125 CLR 84; 45 ALJR 697 …. [15.7], [15.10] Creery v Summersell and Flowerdew & Co Ltd [1949] Ch 751 …. [7.8], [19.6] Creska Ltd v London Borough of Hammersmith and Fulham [1998] 3 EGLR 35 …. [10.8] Crick v Murray (1882) 3 LR (NSW) (L) 20 …. [5.3] Cricklewood Property and Investment Trust Ltd v Leighton’s Investment Trust Ltd [1945] AC 221; [1945] 1 All ER 252 …. [1.2], [6.10], [16.28], [16.30] Cripps v Irwin (1931) 31 SR (NSW) 383 …. [15.19] Cripps, Re [1946] …. [5.10] Croft v Kennaugh [1945] VLR 40 …. [17.12] — v Lumley (1858) 6 HL Cas 672; [1843–60] All ER Rep 162; 10 ER 1459 …. [16.30], [17.18] Cromwel v Andrews (1583) …. [11.3] Crook v Whitbread (1919) LJKB 959 …. [17.17]

Crosse v Gardner [1688] Carth 90 …. [6.11] Crossley Bros Ltd v Lee [1908] 1 KB 86 …. [10.5] Crouch v Tregonning (1872) LR 7 Exch 88 …. [15.21] Crowley v Vitty (1852) 21 LJ Ex 135; 131 ER 365 …. [16.19], [16.21] Crown Estate Commissioners v Signet Group plc [1996] 2 EGLR 200 …. [7.8] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2013] VSC 614 …. 4.2 — v — (2016) 333 ALR 384; 90 ALJR 770 …. [1.5], [1.15], [14.3] Cruse v Mount [1933] 1 Ch 278; [1932] All ER Rep 781 …. [8.1], [8.6] Crusoe d Blencowe v Bugby (1771) 2 WmB1 766 …. [15.3] Cuff v J & F Stone Property Co Ltd [1979] AC 87 …. [11.1], [11.8] Cugg Pty Ltd v Gibo Pty Ltd (2001) 10 BPR 18,641 …. [10.8], [10.11] Cummings v Matheson [1955] VLR 389 …. [16.18] Cunningham-Reid v Public Trustee [1944] KB 602; 2 All ER 6 …. [5.15] Curtain v Aparo [1988] ANZ ConvR 508; (1988) V ConvR ¶54-316 …. [23.39] Curtin v Meadlow Holdings Pty Ltd (2001) Q ConvR ¶54-552 …. [10.5], [16.36] Curtis v Spitty (1835) 1 Bing NC 756; 131 ER 1309 …. [15.19] — v Stutley [1950] ALR 888 …. [7.14] Cusack-Smith v Gold [1958] 1 WLR 611 …. [18.10] Cutler v Wandsworth Stadium Ltd [1949] AC 398 …. [6.9] Cutting Edge Victoria Pty Ltd v Industry Superannuation Property Trust Pty Ltd (2001) V ConvR ¶58-550; [2000] VCAT 2011 …. [23.39], [23.57] Cutting v Derby (1776) 2 Wm Bl 1077; 96 ER 634; [1775–1802] All ER Rep 520 …. [17.17] — v —; Cobb v Stokes (1807) 8 East 358; 103 ER 380 …. [17.17] Cuttle v Brandt (1947) 64 WN (NSW) 96 …. [1.12] Cutts v Buckley (1933) 49 CLR 189 …. [6.11]

D’Arcy v Burrelli Investments Pty Limited (1987) 8 NSWLR 317 …. [10.5] D’Silva v Lister House Development Ltd [1971] 1 Ch 17; [1970] 1 All ER 858 …. [2.14], [4.2], [5.8] Daco Enterprises Pty Ltd v The Golden Sultana Pty Ltd [2006] VCAT 2547 …. [23.14], [23.15] Dad & Dave Pty Ltd v W & J Nicholls Pty Ltd [2005] NSWSC 415 …. [14.6] Dagger v Shepherd [1946] 1 KB 215; 1 All ER 133 …. [20.21] Daiches v Bluelake Investments Ltd [1985] 2 EGLR 6 …. [10.7] Daily, The v White (1946) 63 WN (NSW) 262 …. [5.18] Dainford Ltd v Lam (1985) 3 NSWLR 255 …. [24.14], [28.12] Dakin v Cope (1827) 2 Russ 170; 38 ER 299 …. [17.4] Dale v Hamilton (1846) 5 Hare 369; 67 ER 955 …. 4.5 Dalegrove Pty Ltd v Isles Parking Station Pty Ltd (1988) 12 NSWLR 546 …. [15.20], [20.8] Dalla Costa v Beydoun (1990) 5 BPR 11,379 …. [19.2] Dally-Watkins, Ex parte; Wilson, Re (1955) 72 WN (NSW) 454 …. [14.10], [18.6], [18.10] Dalton v City Freehold Investment Co Ltd (1888) 9 LR (NSW) Eq 129 …. [14.1], [15.20] — v O’Gorman [1921] VLR 599 …. [4.8], [14.5] — v Pickard [1926] 2 KB 545; [1926] All ER Rep 371 …. [16.22] Danel Investments Pty Ltd v Nexstar Investments Pty Ltd (No 2) [2011] ACTSC 120 …. [28.6] Dang v T M Smith Street Pty Ltd (VCAT, Deputy President Macnamara, 10 February 2005) …. [23.64] Daniell v Federal Commissioner of Taxation (1928) 42 CLR 296 …. [24.5], [25.5], [27.5] Daniher v Fitzgerald (1919) 12 SR (NSW) 260 …. [5.16] Danita Investments Pty Ltd v Rockstrom [1963] NSWR 1275; (1963) 80 WN (NSW) 1287 …. [1.3], [3.3]

Darbishire v Warran [1963] 1 WLR 1067 …. [26.10] Darcy v Ryan (1882) 8 VLR (Eq) 36 …. [4.6] Darley Main Colleries Limited v Mitchell (1886) 11 App Cas 127 …. [23.62] Davenport v R (1877) 3 App Cas 115; [1874–80] All ER Rep 157 …. [17.18] — v Smith [1921] 2 Ch 270 …. [17.18], [18.6] Daventry Holdings Pty Ltd v Bacalakis Hotels Pty Ltd [1986] 1 Qd R 406 …. [15.8], [15.10], [15.11], [15.13], [26.8], [27.16] Daverich Pty Ltd v Daverich Pty Ltd [2005] NSWADT 54 …. [24.14] David Blackstone Ltd v Burnetts (West End) Ltd [1973] 1 WLR 1487 …. [15.16], [17.12], [17.18] David Jones Ltd v Leventhal (1927) 27 SR (NSW) 350 …. [19.4] David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; 109 ALR 57 …. [11.3], [23.40] Davidson v McCarten [1953] VLR 697 …. [20.27] Davies v Beynon-Harris (1931) 47 TLR 424 …. [5.3] — v Davies (1888) 38 Ch D 499 …. [10.3] — v Hall [1954] 1 WLR 855 …. [5.19] Davis v Eyton (1830) 7 Bing 154 …. [10.4] — v McConochie (1915) 15 SR (NSW) 510 …. [11.1] — v McKinnon (1871) UCQB 564 …. [11.1] — v Town Properties Investment Corporation Ltd [1903] 1 Ch 797 …. [15.20] Dawdy, Re (1886) 53 LT 800 …. [11.20], [14.7] Dawson v Dyer (1833) 5 B & Ad 584 …. [13.15] — v Stevenson [1920] VLR 564 …. [10.5] De Garis and Rowe’s Lease, Re [1924] VLR 38 …. [13.17] De Landgrafft v Brown (1993) …. [11.16] De Lassalle v Guildford [1901] 2 KB 215; [1900–03] All ER Rep 495 …. [6.11] De Medina v Norman (1842) 9 M and W 820; 152 ER 347 …. [4.1]

De Simone Nominees Pty Ltd v Szabo [2005] VCAT 1595 …. [23.11] — v — [2005] VCAT 2919 …. [23.11] De Soysa v De Pless Pol (1912) AC 194 …. [16.33] Deanplan Ltd v Mahmoud [1993] Ch 151 …. [15.21] Debenhams Retail plc v Sun Alliance and London Assurance Co Ltd [2005] EWCA Civ 868 …. [6.4] Debonair Nominees Pty Ltd v J & K Berry Nominees Pty Ltd (2000) 77 SASR 261; [2000] SASC 244 …. [26.8], [27.7], [27.16], [28.15] Deeble v McMullen (1857) 8 Ir C L Rep 355 …. [16.36] Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd (2010) 15 BPR 29,021 …. [18.2] — v — (2012) 16 BPR 31,089 …. [14.6] Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd [2012] NSWSC 251 …. [24.2] Degan v Lee (1939) 39 SR (NSW) 234 …. [5.17] Della Imports Pty Ltd v Birkenhead Investments Pty Ltd (1987) NSW Conv R 55–358 …. [14.8] Dellneed Ltd v Chin [1987] 1 EGLR 75 …. [15.2] Dellwest Pty Ltd v Cafabe Pty Ltd (26 November 1997, unreported) …. [4.1] Demagogue Pty v Ramensky (1992) 39 FCR 31 …. [12.9] Demtear Pty Ltd v Abelian Pty Ltd [2004] QSC 103 …. [4.2], [4.8] Dendy v Evans [1908–10] All ER Rep 589 …. [17.12], [17.13], [19.4], [19.5] — v — [1909] 2 KB 894 …. [17.12] — v — [1910] 1 KB 263 …. [16.30], [17.13], [19.4], [19.5] Deneys v Delafotis (1992) V ConvR ¶54-433 …. [1.4], [6.7] Denham Bros Ltd v W Freestone Leasing Pty Ltd [2002] QSC 307 …. [12.3] — v — [2004] 1 Qd R 500 …. [15.20] Dennis v McDonald [1982] Fam 63 …. [5.15] Dennis & Copley v Eddie [1952] VLR 92 …. [1.6], [2.11], [2.12], [4.3], [17.9], [17.12], [19.2], [20.1]

Denny Mott & Dickson v James B Fraser [1944] AC 265 …. [6.10] Denny’s Restaurants Pty Ltd, Re [1977] Qd R 92 …. [14.6] Deputy Cmr of Taxation v Barroleg Pty Ltd (1997) …. [11.3] Deventer Pty Ltd v BP Australia Ltd {1983-4] ANZ ConvR 311 …. [10.5] Dewar v Goodman [1909] AC 72; [1908–10] All ER Rep 188 …. [15.20] DHK Retailers Pty Ltd v Leda Commercial Properties Pty Ltd [1993] ANZ ConvR 635 …. [16.34] — v — (FC, Full Court, 21 April 1993, unreported) …. [16.28] Di Biase v Rezek [1971] 1 NSWLR 735 …. [4.5] Di Torio v Zollo [1977] VR 547 …. [2.4], [7.13] Diakogiannis v Johnson (1989) NSW Con R55 472 …. [14.8] Dibble v Bowater (1853) …. [11.3] Dickinson v Burrell (1866) LR 1 Eq 337; 35 LJ Ch 371 …. [6.8] Digby v Atkinson (1815) 4 Camp 275; 171 ER 88 …. [7.13] Dikstein v Kanevsky [1947] VLR 216 …. [7.14], [8.1], [8.4], [20.3], [24.8], [25.7], [26.7], [27.6] Dileum Pty Ltd v J K Corporation Pty Ltd (1989) 1 WAR 244 …. [26.12] Dillon v Nash [1950] VLR 293 …. [4.9], [10.1] Dillwyn v Llewelyn (1862) 4 De G F & J 517 …. [1.15] Dimond v Moore (1931) 45 CLR 159; [1931] ALR 177 …. [4.1], [16.27] Dinyarrak Investments Pty Ltd v Amoco Australia Ltd (1982) 45 ALR 214 …. [12.9] Direct Food Supplies (Vic) Pty Ltd v DLV Pty Ltd [1975] VR 358 …. [19.1], [19.2] Direct Spanish Telegraph Co Ltd v Shepherd (1884) 13 QBD 202 …. [7.16] DKB Investments Pty Ltd v Belcote Pty Ltd [No 2] (1993) 113 FLR 290 …. [7.4] Dockrill v Cavanagh (1944) 45 SR (NSW) 78 …. [1.6], [2.7], [2.8], [2.19] Dockside Holdings Pty Ltd v Rakio Pty Ltd (2001) …. [11.8]

Dodd Properties (Kent) Ltd v Canterbury City Council [1980] 1 All ER 928; [1980] 1 WLR 433 …. [10.13] Dodd v Acklom (1843) 134 ER 1063 …. [16.21] Dodson Bull Carpet Co Ltd v City of London [1975] 1 WLR 781 …. [20.15] Doe d Abdy v Stevens (1832) 3 B & Ad 299; 110 ER 112 …. [6.5], [7.2], [17.2] Doe d Armstrong v Wilkinson (1840) 12 Ad & El 743; 113 ER 995 …. [20.17], [20.22] Doe d Aslin v Summersett (1830) 1 B & Ad 135; 109 ER 738 …. [5.15] Doe d Bradford v Watkins (1806) East 551; 103 ER 213 …. [20.27] Doe d Buross v Lucas (1804) 5 Esp 153; 170 ER 769 …. [20.27] Doe d Calvert v Frowd (1828) 130 ER 883 …. [17.21] Doe d Carlisle v Woodman (1807) 8 East 227; 103 ER 329 …. [20.12], [20.27] Doe d Cox v Roe (1802) 4 Esp 185; 170 ER 68 …. [20.22] Doe d Darke v Bowditch (1846) 8 QB 973 …. [17.8], [19.3] Doe d David v Williams (1835) 7 C & P 322; 173 ER 143 …. [17.21] Doe d Dixon v Roe (1849) 7 CB 134; 137 ER 55 …. [16.30], [19.3] Doe d Ellis v Sandham (1787) 1 TR 705; 99 ER 1332 …. [9.2] Doe d Galehouse v Rees (1838) 4 Bing NC 384; 132 ER 835 …. [17.18] Doe d Graves & Downe v Wells (1839) 10 Ad & E 427; 113 ER 162; [1835– 42] All ER Rep 204 …. [17.21] Doe d Gray v Stanion (1836) 1 M & W 695; 150 ER 614; [1835–42] All ER Rep 290 …. [16.19], [17.21] Doe d Gretton v Roe (1847) 4 CB 576; 136 ER 633 …. [19.3] Doe d Griffith v Pritchard (1833) 110 ER 973; (1833) 5 B & Ad 765 …. [17.18] Doe d Henniker v Watt (1828) 8 B & C 308; 108 ER 1057 …. [17.5] Doe d Jefferies v Whittick [1820] Gow 195; 171 ER 883 …. [17.21] Doe d Kindersley v Hughes (1840) 7 M & W 139 …. [5.15]

Doe d Lloyd v Powell (1826) 5 B & C 308; 108 ER 115 …. [7.12], [17.2] Doe d Lockwood v Clarke (1807) 8 East 183; 103 ER 313 …. [16.6] Doe d Lord Macartney v Crick (1805) …. [5.15] Doe d Lord v Wilson (1854) 1 VLT 115 …. [22.4] Doe d Macartney v Crick (1805) 5 Esp 196; 170 ER 784 …. [20.13] Doe d Mann v Walters (1830) 10 B & C 626; 109 ER 583 …. [20.9] Doe d Mann v Walters; Re Bebington’s Tenancy [1921] …. [20.9] Doe d Marquis of Bute v Guest (1846) 15 M & W 160; 150 ER 804 …. [7.8] Doe d Matthews v Jackson (1779) 1 Doug KB 175; 99 ER 115 …. [17.17] Doe d Matthewson v Wrightman (1801) 4 Esp 5; 170 ER 62 …. [20.24] Doe d Murrell v Milward (1838) 3 M & W 328; 150 ER 1170 …. [16.15] Doe d Nash v Birch (1836) 1 M & W 402; 150 ER 490 …. [17.18] Doe d Nicholl v McKaeg (1830) 10 B & C 721; 109 ER 618 …. [2.19] Doe d Parsley v Day (1842) 2 QB 147 …. [1.16] Doe d Phillips v Rollings (1847) 136 ER 476 …. [17.21] Doe d Pitt v Hogg (1824) 4 Dow & Ry 224; 171 ER 1144 …. [26.8] Doe d Poole v Errington (1834) 1 Ad & El 750; 110 ER 1394 …. [5.15] Doe d Rhodes v Robinson (1837) 3 Bing NC 677 …. [20.9] Doe d Simpson v Hall (1843) 5 Man & G 795; 134 ER 781 …. [20.27] Doe d Solomon v Purves (1846) 1 RJ 38 …. [15.20] — v — (1847) 2 RJ 1 …. [16.19] Doe d Staughton v Jennings (1856) 1 VLT 182 …. [17.2], [17.8], [17.9], [22.4] Doe d Thomson v Amey (1840) 12 Ad & E 476 …. [2.8] Doe d Warner v Browne (1807) 8 East 165; 103 ER 305 …. [1.5] Doe d Worcester Trustees v Rowlands (1841) 9 C & P 734; 173 ER 1030 …. [10.9] Doe d Wright v Smith (1838) 112 ER 835 …. [1.14] Doe v McKaeg (1830) 10 B and C 721; 109 ER 61 …. [16.36]

— v Miller (1826) 1 M & W 402 …. [17.18] — v Spiller (1806) 6 Esp 70; 170 ER 833 …. [20.24] — v Walker (1826) 5 B & C 111 …. [1.16] Dog Depot Pty Ltd v Ovidio Carrideo Nominees Pty Ltd (VCAT, Member Aird, 17 December 2003, unreported) …. [23.40] Dogan v Morton (1935) 35 SR (NSW) 142 …. [18.6], [18.9] Doherty v Traveland Pty Ltd (1982) …. [12.13] Doig (decd), In the Will of [1916] VLR 698 …. 5.2 Dominion Taylor Wood Auctioneers Pty Ltd v Mandat (1997) …. [11.8] Domino’s Pizza Enterprises Ltd v Seldex Pty Ltd [2009] QSC 137 …. [14.6] Donald v Ah Lo (1907) 9 GLR 455 …. [13.15] Donellan v Read (1832) 3 B & Ad 899; 110 ER 330; [1824–34] All ER Rep 639 …. [16.19] Douglas v Smith [1907] 2 KB 568; [1904-7] All ER Rep Ext 1166 …. [3.4] Douglas & Co (Insurance) Pty Ltd v Economic Insurance Co Ltd (1951) 68 WN (NSW) 225 …. [17.12], [17.21] Douglas-Scott v Scorgie [1984] 1 WLR 716 …. [10.10] Dovastand Pty Ltd v Mardasa Nominees Pty Ltd [1991] 2 VR 285 …. [6.9] Dover v Prosser [1904] 1 KB 84 …. [3.9] Dowell v Dew [1842] 1 Y & C Ch Cas 345; [1843–60] All ER Rep 1084 …. [4.6] Downer Enterprises Ltd, Re [1974] 1 WLR 1460 …. [5.9] Downie v Lockwood [1965] VR 257 …. [4.8], [6.5], [6.8], [7.2], [7.4] — v Taylor [1954] VLR 603 …. [3.4], [7.14] — v Turner [1951] 2 KB 112; 1 All ER 416 …. [17.18] Downward Bricklaying Pty Ltd v Goulburn-Murray Rural Water Authority (2003) 8 VR 61 …. [14.3] Dowse v Wynyard Holdings Ltd [1962] NSWR 252 …. [8.4], [10.1], [13.15] Drane v Evangelou [1978] 2 All ER 437; [1978] 1 WLR 455 …. [8.4], [13.15]

Dresden Estates Ltd v Collinson [1987] 1 EGLR 45 …. [3.2] Driscoll v Church Commissioners for England [1957] 1 QB 330; [1956] 3 All ER 802 …. [17.13] DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 …. [16.34], [16.35] Dubowski & Sons v Goldstein [1896] 1 QB 478 …. [6.4] Dudgeon v Chie (1953) 55 SR (NSW) 450 …. [3.1] — v — (1955) 92 CLR 342 …. [3.6] Dudley & District Benefit Building Society v Emerson [1949] 1 All ER 691; [1949] 1 Ch 707 …. [5.16] Duff v Blinco [2006] QCA 497 …. [4.3] Duggan, Re (1883) NZLR 2 144 …. [15.5], [17.20] Duggan v Little [1951] QWN 13 …. 20.26 — v Barnes [1923] VLR 27 …. [4.2] — v Little [1951] …. [20.26] Duke of Westminster v Guild [1985] QB 688; [1984] 3 All ER 144 …. [10.1], [10.6] — v Store Properties Ltd [1944] Ch 129 …. [11.1] — v Swinton [1948] 1 All ER 208; [1948] 1 KB 524 …. [10.13], [13.17], [19.5], [19.6] Dukeminster (Ebbgate House One) Ltd v Somerfield Property Co Ltd [1997] …. [11.8] Dumpor’s case (1603) 4 Co Rep 119 …. [17.18] Duncan Properties Pty Ltd v Hunter [1991] 1 Qd R 101 …. [14.1], [14.5], [14.9] Duncan’s Catering Pty Ltd v Bankstown City Council [2006] NSWADTAP 9 …. [24.2] Dunedin City Corporation v Searl [1916] NZLR 145 …. [18.9] Dunlop v Troy [1915] VLR 639 …. [10.7] Dunn Pty Ltd v Ericsson Pty Ltd [1979–80] ANZ ConvR 301 …. [10.5]

Dunn v Large (1783) 3 Doug 335; 99 ER 683 …. [17.17] Dunraven Securities Ltd v Holloway [1982] …. [18.7] Durant v Greiner (1990) 21 NSWLR 119 …. [24.2], [26.2], [27.2] Durkin v Commonwealth Savings Bank of Australia (unreported, Full Court of the Supreme Court of South Australia, 30 November 1990) …. [10.8] Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 …. [10.1] DW & JA Edwards Pty Ltd v SHIH (1995) 7 BPR 14,405 …. [10.5] Dyet Investments v Moore (1972) 223 EG 945 …. [14.8] Dyke, Ex parte (1882) 22 Ch D 410 …. [17.9], [17.12] Dykes v Gerke [1963] NSWR 721; 79 WN (NSW) 432 …. [16.20] Dyson v Forster [1909] AC 98, [1908–10] All ER Rep 212 …. [15.20] ‘E’ v Australian Red Cross Society (1991) …. [12.13] E & W Hackett Ltd v Oliver [1953] SASR 19 …. [3.5] E S Schwab & Co Ltd v McCarthy (1975) 31 P & CR 196 …. [16.11] Eads v Williams (1854) 43 ER 671; [1843–60] All ER Rep 917 …. [11.20], [14.7] Eagle Star Nominees Ltd v Merril (1983) V ConvR ¶54-002; [1982] VR 557 …. [7.4] Earl Bathurst v Fine [1974] 2 All ER 1160; [1974] 1 WLR 905 …. [19.4] Earl Cadogan v Guiness [1936] Ch 515; [1936] 2 All ER 29 …. [1.10], [4.1] Earl of Pembroke and Montgomery v Warren [1896] 1 IR 76 …. [7.14] Earl of St Germains v Willan (1823) 2 B & C 216; 107 ER 363 …. [1.1] East v Clarke (1915) 33 OLR 624; 23 DLR 74 …. [11.1] East Coast Commissioner v Kells [1924] NZLR 76 …. [14.2] Eastaugh v Macpherson [1954] 1 WLR 1307 …. [20.21] Easterby v Sampson (1830) 6 Bing 644; 130 ER 1429 …. [15.20] Eastern Garden Pty Ltd v Sangster [2004] SASC 45 …. [12.9] Eastern Health v MIA Victoria Pty Ltd (2009) 22 VR 502 …. [14.1]

Eastern Telegraph Co v Dent [1899] 1 QB 835 …. [15.8] Eastgate v Equity Trustees Executors and Agency Co Ltd (1964) 110 CLR 275; [1964] ALR 1063 …. [5.15] Easts Van Villages Pty Ltd v Minister Administering the National Parks and Wildlife Act (2001) Aust Contract R ¶90-132; [2001] NSWSC 559 …. [1.15], [2.12] Easy Buy International Pty Ltd v Macquarie Goodman Property Services Pty Ltd [2006] NSWSC 148 …. [7.8] Easyfind (NSW) Pty Ltd v Paterson (1987) 11 NSWLR 98 …. [6.8] Eaton v Lyon (1798) 3 Ves 690; 30 ER 1223 …. [14.11] Eccles v Bryant [1948] Ch 93 …. [4.1] Ecclesiastical Commissioners for England v Treemer [1893] 1 Ch 166 …. [1.16] Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 91 ALJR 486 …. [6.4], [6.5] Eddadock Pty Ltd v Denning Properties Pty Ltd [2002] NSWSC 208 …. [15.13] Eddie Azzi Australia Pty Ltd v Citadin Pty Ltd [2001] …. [28.12] Edex International Holdings Pty Ltd v Marmalade Films Pty Ltd (2003) …. [11.3] Edge v Boileau (1885) 16 QBD 117 …. [7.4], [13.15] — v Strafford (1831) 1 C & J 391; 148 ER 1474 …. [4.3] Edler v Auerbach [1950] 1 KB 359 …. [6.7] Edmund Barton Chambers (Level 44) Cooperative Ltd v Mutual Life & Citizen’s Assurance Co Ltd (1985) 6 NSWLR 312 …. [14.3], [26.10] Edwards Aberayron Mutual Ship Insurance Society [1876] 1 QBD 563 …. [17.5] Edwards v Horrigan; Ex parte Horrigan [1923] St R Qd 8 …. [2.11] Egerton v Esplanade Hotels (London) Ltd [1947] 2 All ER 88 …. [18.7], [19.5] — v Jones [1939] 2 KB 702 …. [19.6]

Egmont v Smith (1877) 6 Ch D 469 …. [5.17] Elder v Gray (1891) 10 NZLR 107 …. [16.28], [20.3] Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd (1987) 78 ALR 193; ATPR (Digest) 46-030 …. [12.9] Elder’s Trustee Case (1941) 65 CLR 603 …. [16.30] Electricity Generation Corp v Woodside Energy Ltd (2014) 251 CLR 640; 306 ALR 25; [2014] HCA 7 …. [6.4], [6.5] Electricity Supply Nominees Ltd v IAF Group plc [1993] 1 WLR 1059 …. [7.4] Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd (1994) 123 ALR 202 …. [24.2], [25.2] — v Linterns Ltd [1950] SASR 133 …. [5.8] Elesanar Constructions Pty Ltd v Queensland [2007] ANZ ConvR 369 …. [14.2] Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258 …. [13.15] Elitestone Ltd v Morris [1998] ANZ ConvR 478; [1997] 2 All ER 513; [1997] 1 WLR 687 …. [10.5] Elizabeth City Centre Pty Ltd v Corralyn Pty Ltd (1995) 63 SASR 235 …. [14.10] Eller v Grovecrest Investments Ltd [1995] 1 WLR 1059 …. [7.4] Elliott v Boynton [1924] 1 Ch 236; [1923] All ER Rep 174 …. [17.10], [17.12], [17.17] Ellis v Rowbotham [1900] 1 QB 740; [1900–3] All ER Rep 299 …. [11.3], [16.22] Ellul v Oakes (1972) 3 SASR 377 …. [4.9] Elmcroft Developments v Tankersley-Sawyer [1984] 1 EGLR 47 …. [10.8] Elmdene Estates Pty Ltd v White [1960] AC 528 …. [24.5], [25.5], [26.4] Elmer v Minute Wit Enterprises Pty Ltd [2002] VCAT 1101 …. [23.40] Elmslie v Commissioner of Taxation (1993) 46 FCR 576 …. [4.1] Elrington v Judd [1964–65] NSWR 493; 81 WN (Pt 2) (NSW) 257 …. [7.13]

Elwes v Maw (1802) 3 East 38; [1775–1802] All ER Rep 320 …. [10.5] Email Ltd v Robert Bray (Langwarrin) Pty Ltd [1984] VR 16 …. [11.1], [11.8], [11.20] Emery v Commonwealth of Australia [1963] VR 586 …. [20.33] Empire Theatres Ltd, Ex parte (1934) …. [16.17], [16.18] Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 …. [4.1] EMS Quarries Pty Ltd v Beaumont (2001) 10 BPR 18 …. [7.8] Encino Plaza Pty Ltd v Wilson International Pty Ltd (1988) V ConvR [¶54308] …. [4.1] English Scottish & Australian Bank Ltd v City National Bank [1933] St R Qd 81 …. [5.16] — v Phillips (1937) 57 CLR 302 …. [6.8], [16.9] Enhill Pty Ltd v Bonsoc Pty Ltd (No 2) [2007] VSCA 108 …. [16.17], [16.30] — v Bonsoc Pty Ltd [2003] VSC 333 …. [16.30] Enkelmann v Glissan (1982) NSW ConvR ¶55-084 …. [1.6] Ensabella & Sons Pty Ltd v Players on Downunder Pty Ltd (2000) V ConvR ¶54-626; [2000] VSCA 73 …. [23.11], [23.40] Epic Feast v Mawson KLM Holdings (1998) 71 SASR 161 …. [14.1] Equitable Life Assurance Co of the United States, The v Bogie (1905) 3 CLR 878 …. [15.20] Equity & Law Life Assurance Society plc v Bodfield Ltd (1987) …. Equity Trustees Executors & Agency Co Ltd, Re [1932] VLR 137 …. [6.10] Equity Trustees Executors & Agency Co Ltd v Riddell [1954] …. [10.8] Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; 211 ALR 101; [2004] HCA 55 …. [6.6] Ergopax Pty Ltd v Meerkin and Appel (SC(Vic), Hedigan J, 12 December 1995, unreported) …. [1.4], [7.3], [8.4] Ergopex Pty Ltd v Meerkin & Apel (1996) V ConvR ¶54-550 …. [7.3] Erlington v Judd (1964) SR (NSW) 150 …. [27.7]

Errington v Errington and Woods [1952] 1 All ER 149; [1952] 1 KB 290 …. [1.4], [2.17] Escalus Properties Ltd v Robinson [1996] QB 231 …. [11.1], [18.3], [19.3], [19.4], [19.6] Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1 …. [26.2] Esso Australia Ltd v Air Ride Transportation Pty Ltd (unreported, Supreme Court of Victoria, 28 September 1988) …. [14.4] — v Australian Petroleum Agents’ and Distributors’ Association (unreported 5 October 1993) …. [6.5] Esso Petroleum Co Ltd v Anthony Gibbs Financial Services Ltd [1983] …. [11.6] — v Harper’s Garage (Stourport) Ltd [1968] AC 269 …. [7.8], [12.2] Essoldo (Bingo) Ltd’s Underlease, Re; Essoldo v Elcresta Ltd (1971) 23 P & CR 1 …. [11.1] Estates Gazette Ltd v Benjamin Restaurants Ltd [1994] 1 WLR 1528 …. [15.19] Esther Investments v Cherrywood Park (1986) WAR 279 …. [14.1] ET Petroleum Holdings Pty Ltd v Clarenden Pty Ltd (No 2) [2005] NSWSC 562 …. [23.58], [23.61] Ettelson v Caldwell [1946] VLR 262 …. [7.13] Eudunda Farmers’ Co-operative Society Ltd v Mattiske [1920] SALR 309 …. [14.3] Eureka Operations Pty Ltd v Viva Energy Australia Ltd [2015] …. [1.9] — v — [2016] …. [1.9] Evanel Pty Ltd v Stellar Mining NL [1982] 1 NSWLR 380 …. [14.6] Evans v Athedim (Vic) Pty Ltd (2000) V ConvR 54-613 …. [4.3], [4.6], [10.13] — v Barboutis [1957] VR 35 …. [16.3] — v Davis (1878) 10 Ch 747 …. [17.18] — v Robins (1863) 33 LJ Ex 68 …. [11.1] — v Wyatt (1880) 43 LT 176; 44 JP 767 …. [16.2], [17.18]

Ewart v Fryer (1902) 86 LT 676 …. [19.6] EWP Ltd v Moore [1992] QB 460 …. [1.5], [2.13] Exford Pines Pty Ltd v Vlado’s Pty Ltd (1996) V Conv R ¶54-453; [1992] 2 VR 449 …. [16.30], [23.46], [23.48] Expert Clothing Service and Sales Ltd v Hillgate House Ltd [1986] Ch 340 …. [17.18], [18.6], [18.7] Export Credits Guarantee Department v Universal Oil Products Co [1983] 1 WLR 399 …. [10.13] Eye Corp Australia Pty Ltd v Goliath Investments Pty Ltd [2006] NSWSC 804 …. [10.5] Eyre v Rea [1945] …. [10.13] — v — [1947] KB 567; 1 All ER 415 …. [10.13], [13.17] Ezekiel v Orakpo [1977] QB 260 …. [16.30], [17.11] F P Shine (Vic) v Gothic Lodge Pty Ltd [1993] V ConvR ¶54-472 …. [25.2] F Tritton Pty Ltd v Hunnicutt Pty Ltd SC(Qld), Dunn J, 23 December 1982, unreported …. [14.6] F&G Nominees Pty Ltd v Verdell Pty Ltd [2003] WASCA 290 …. [26.4] Fabian Amber Pty Ltd v Ben Liano (t/as St Elbright Motors) (VCAT (Deputy President Macnamara), 22 December 2003, unreported) …. [23.40] Factors (Sundries) Ltd v Miller [1952] 2 All ER 630 …. [19.6] FAI General Insurance Company Ltd v Parras (2002) 55 NSWLR 498; 11 BPR 20,475 …. [14.10] FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343 …. [6.6], [7.16], [15.2] Fairweather v St Marylebone Property Co Ltd [1963] AC 510; [1962] 2 All ER 288 …. [16.3], [16.11], [16.14] Fallon Street Properties Pty Ltd v Steel & Stuff Pty Ltd [2006] ANZ ConvR 21; [2006] NSWCA 296 …. [10.1], [11.21] Family Housing Association v Jones [1990] 1 WLR 779 …. [1.4] Famous Makers Confectionery Pty Ltd v Sengos (1993) 6 BPR 13,222 ….

[10.5] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] 230 CLR 89 …. [6.10] Fares v Bleakley [2005] NSWADT 230 …. [24.3] Farley Bay Pty Ltd v Thomas (1996) V ConvR ¶58-523 …. [23.18] Farmers & Merchants National Bank of Bridgeton v Boyman (1977) 382 A 2d 437; 99 ALR 3d 1093 …. [11.1] Farnell’s Settled Estates, Re (1886) 33 Ch D 599 …. [5.17] Farooqi v Mazzocchetti [1998] SASC 6619 …. [27.3] Farrance v Elkington (1811) 2 Camp 591; 170 ER 1262 …. [17.17] Farrington v Smith (1894) 20 VLR 90 …. [18.5] Fazzolari v Couchouron (2003) ConvR ¶58-572; [2003] VCAT 503 …. [23.41] Featherby v Read [2002] WASC 251 …. [5.9] Featherstone v Staples [1986] 1 WLR 861 …. [5.15] Federal Bank of Australia Ltd, Re (1895) 6 BC (NSW) 3 …. [5.9] Federal Commerce & Navigation Co Ltd v Molena Alpha Inc [1979] AC 757; [1978] 3 All ER 1066 …. [7.4], [16.35] Federal Commissioner of Taxation v G J Coles & Co Ltd (1974) 4 ALR 163 …. [15.1], [15.2] — v Williamson (1943) 67 CLR 561 …. [15.14], [23.36], [24.5], [25.5], [27.5] Federated etc Service Association v NSW Railway Traffic Employers Association (1906) 4 CLR 488 …. [24.2], [25.2] Fels v Knowles (1906) 27 NZLR 604 …. [5.17] Fenn d Matthews & Lewis v Smart (1810) 12 East 444 …. [17.9] Ferguson v Anon [1798] 2 Esp 590 …. [8.7] — v Hullock [1955] VLR 202 …. [15.17], [16.12], [16.13], [16.18] Fernandes v Lam [1999] ANZ ConvR 445 …. [23.55] Fernhill Railway Co v Mayor of Dunedin [1884] NZLR (SC) 86 …. [1.10] Field v Barkworth [1986] 1 WLR 137 …. [15.8]

Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd (1999) …. [11.3] Finch v Gilvey (1889) 16 OAR 484 …. [11.1] — v Sayers [1976] 2 NSWLR 540 …. [6.10] — v Underwood [1876] 2 Ch D 310 …. [14.6] Finco v Masterton Licensing Trust [1956] NZLR 896 …. [10.10] Finishing Services Pty Ltd v Lactos Fresh Pty Ltd [2006] …. [11.9] Fink v McIntosh [1946] VLR 290 …. [1.8], [2.13], [2.19], [15.5], [20.3], [24.18], [26.8] Finley v Russell-Jones (1948) 49 SR (NSW) 96; 66 WN 32 …. [16.2], [17.18] Finney Isles and Co Ltd v Estate of Pelling [1950] St R Qd 128 …. [17.10], [18.4] Fire and All Risks Insurance Co Ltd v Concorde Personnel Management Services Pty Ltd (1987) NSW ConvR ¶55-330 …. [4.2] Firmway Pty Ltd v Bretain Pty Ltd [2007] VCAT 576 …. [23.61] First Property Growth Partnership v Royal & Sun Alliance Property Services Ltd [2003] …. [11.6], [11.8] Firth v Halloran (1926) 3 8 CLR 261 …. [1.2], [6.10], [16.27] Fisher v Oborn [1968] 3 NSWR 447 …. [7.16] Fisherman’s Wharf Tavern Pty Ltd v Perpetual Trustee Co Ltd [2006] QSC 104 …. [25.18] Fitzgerald v Button (1890) 16 VLR 561 …. [2.11] — v — (1891) 17 VLR 52 …. [2.11], [2.14], [20.3] — v Kellion Estates (1977) 2 BPR 9181 …. [10.5], [16.36] — v Masters (1956) 95 CLR 420 …. [6.4], [6.8], [11.8] Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd [2013] VSC 344 …. [23.8], [23.18] Flagstaff Investments Pty Ltd v Cross Street Investments Pty Ltd (1999) 9 BPR 17,067 …. [14.6] Fleeton v Fitzgerald [1998] 9 BPR 16,715 …. [16.3]

Fleetwood v Hull (1889) 23 QBD 35 …. [15.19] Fleming v Blythe (1906) 26 NZLR 500 …. [15.19] — v Hislop (1886) 11 App Cas 686 …. [7.14] Fletcher v Davies (1980) 257 EG 1149 …. [4.2] — v Nokes [1897] 1 Ch 271 …. [18.6] Flexman v Corbett [1930] 1 Ch 672; [1930] All ER Rep 420 …. [7.16], [9.2], [9.3] Flight v Bentley (1835) 7 Lim 149; 58 ER 793 …. [15.20] — v Glossopp (1835) 2 Bing NC 125; 132 ER 50 …. [15.19] Flora Investments Ltd v Samson Corporation Ltd [1999] ANZ ConvR 392 …. [10.9] Fluor Daniel Properties Ltd v Shortlands Investments Ltd [2001] All ER (D) 36; [2001] 2 EGLR 103 …. [10.7] Flureau v Thornhill (1776) 2 Wm Bl 1078; 96 ER 635; [1775-1802] All ER Rep 91 …. [1.13], [13.4] Foenander v Dabscheck [1954] VLR 38 …. [2.13], [20.32] Fong v Cilli (1968) 11 FLR 495 …. [7.4] Foran v Wight (1989) 168 CLR 385; 88 ALR 413 …. [1.15] Ford v Centenary Investments Pty Ltd [1957] VR 288 …. [7.4], [11.2], [11.3], [11.14], [18.4] — v Newton [1949] St R Qd 119 …. [6.9] — v Young (1882) …. [4.10] Forrest Chase Medical Services Pty Ltd v Toliver Pty Ltd [1998] ANZ ConvR 31 …. [14.9] Forrester v AIMS Corporation [2004] VSC 506 …. [23.64] Forslind v Bechely-Crundall (1922) SC (HL) 173 …. [16.33] Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972-73] ALR 1303 …. [1.5], [2.2], [14.9] Forte-Senes Hotels Pty Ltd v Austcorp No 473 Pty Ltd [2004] ANZ ConvR 243 …. [16.17]

Foster v Robinson [1951] 1 KB 149; [1950] 2 All ER 342 …. [16.17], [16.19] — v Wheeler (1888) 38 Ch D 130; [1886–90] All ER Rep Ext 1567 …. [4.2] Fowler v Begg (1953) 53 SR (NSW) 451 …. [3.8], [16.36] — v Fowler (1859) 4 De G & J 250; 45 ER 97 …. [6.8] Fox v Jolly [1916] 1 AC 1; [1914–15] All ER Rep Ext 1316 …. [18.4], [18.6] Fox Entertainment Precinct Pty Ltd v Centennial Park and Moore Park Trust (2004) 11 BPR 21,629 …. [6.8] Foxtel Management Pty Ltd (2005) 214 ALR 554 …. [12.10] FP Shine (Vic) Pty Ltd v Gothic Lodge Pty Ltd [1994] V ConvR ¶54-472; [1994] 1 VR 194 …. [23.18] Francis Longmore & Co Ltd v Stedman [1948] VLR 322; [1948] 1 ALR 126 …. [1.3], [1.12], [2.21], [3.5], [4.8], [11.1], [16.20] Francis v Cowlcliffe Ltd (1976) 33 P & CR 368; 239 EG 977 …. [10.13] — v Francis [1952] VLR 321 …. [4.5], [13.8] Frankland v Capstick 1959] 1 All ER 209; [1959] 1 WLR 204 …. [20.17], [20.23] Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 …. [6.5], [6.6] Fraser v Dummett (1948) 67 WN (NSW) 129 …. [7.14] — v Evans [1946] VLR 382 …. [13.4] — v Victorian Railways Commissioner (1908) 8 CLR 54 …. [10.1] Fraser & Pipestock Ltd v Gloucester City Council (1995) …. [11.7] Frederick E Rose (London) Ltd v William H Pim Junior & Co Ltd [[1953] 2 QB 450 …. [6.8] Frederick Platts Co Ltd v Grigor [1950] 1 All ER 941 …. [7.14] Freeman v Hambrook [1947] VLR 70 …. [20.8], [20.9], [20.10] — v McManus [1958] VR 15 …. [5.12], [5.13] — v Wells [1909] VLR 361 …. [3.4] Freeth v Burr (1874) LR 9 CP 208 …. [16.35] Fremantle etc Association of Workers v Victor Motor Co Pty Ltd [1963]

WAR 201 …. [17.10], [19.2] French v Elliott [1960] 1 WLR 40 …. [17.17] Friary Holroyd and Healey’s Breweries Ltd v Singleton [1899] 1 Ch 86 …. [14.8] Friend v Brooker (2009) 239 CLR 129 …. [15.3] Friends Provident Life Office v British Railway Board [1996] 1 ALL ER 336 …. [15.18] Frieze v Unger [1960] VR 230 …. [3.4], [3.8], [5.15], [6.10] Fry v Metzelaar [1945] VLR 65 …. [2.6], [2.20] Fuller, Ex parte; Re Taylor (1945) 62 WN (NSW) 158 …. [20.9] Fuller’s Theatre & Vaudeville Co v Rofe [1923] AC 435 …. [1.10], [15.2], [15.8] Furness v Sharples (1950) 68 WN (NSW) 18 …. [16.20] Fush v McKendrick & Co Pty Ltd (2004) V ConvR ¶54-686 …. [1.15], [4.1] FW Woolworth plc v Charlwood Alliance Properties Ltd [1987] 1 EGLR 53 …. [7.8] G & A Lanteri Nominees Pty Ltd v Fishers Stores Consolidated Pty Ltd [2005] VSCA 4; [2005] 1 EGLR 53 …. [7.8], [13.4], [13.13], [16.30] G & K Ladenbau (UK) Ltd v Crawley & de Reya [1978] 1 WLR 266 …. [7.3] G & L Panels Pty Ltd v Gargano [2009] VCAT 1704 …. [23.14] G and E Avakoumides Pty Ltd v Commonwealth Funds Management [2004] NSWSC 711 …. [4.1], [4.4] G H Renton & Co Ltd v Palmyra Trading Corporation of Panama [1956] 1 QB 462 …. [6.5] G J Coles Co Ltd v Federal Commissioner of Taxation (1975) …. [15.2], [15.19] G R Mailman & Associates Pty Ltd v Wormald (Aust) Pty Ltd (1991) …. [11.6] Gaetjens v Arndale (Kilkenny) Pty Ltd [1969] SASR 470; (1969) 20 LGRA

21 …. [13.11], [23.47] Gair v Smith [1964] VR 814 …. [17.17], [18.6] Galambos v McIntyre (1974) 5 ACTR 10 …. [7.4] Galaxy Catering Pty Ltd v Trust Company of Australia Ltd [2006] NSWADT 182 …. [24.20] Galaxy Motors Pty Ltd v Carroll [1964–5] NSWR 463; 82 WN (Pt 1) (NSW) 40 …. [15.16], [16.18] Gallic Pty Ltd v Cynayne Pty Ltd (1986) 83 FLR 31 …. [17.6], [19.1] Gamvrogiannis v Blackshaw (2000) NSW ConvR ¶55-940 …. [4.1] — v — [2002] NSWCA 6 …. [4.1] Gange v Lockwood (1860) 2 F & F 115; 175 ER 984 …. [10.8] Garbutt v Naughton (1866) …. [14.5] — v — (1874) 5 AJR 70 …. [14.5] Gardner & Co Ltd v Cone [1928] Ch 955; [1928] All ER Rep 458 …. [7.8], [15.15] Gardner v Blaxill [1960] 1 WLR 752 …. [14.8] — v Coutts & Co [1968] WLR 173 …. [14.4] Garson v Scottish Widows’ Fund and Life Assurance Society [1998] 3 ALL ER 596 …. [20.20] Gaslight & Coke Co v Towse (1887) 35 Ch D 519; [1886–90] All ER Rep Ext 1771 …. [5.19], [13.4] Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 …. [13.15] — v Jacobs Ltd [1920] 1 Ch 567 …. [18.4] Gaw v Coras Iompair Eireann [1953] IR 232 …. [15.20] Gaze v London Drapery Stores (1900) 44 Sol Jo 722 …. [19.5] GDH Pty Ltd v Wayne [2001] …. [11.6], [11.9] GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1 …. [16.30] Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd

(1995) Aust Contract Reports ¶90-059 …. [4.1] Geita Sebea v Territory of Papua (1941) 67 CLR 549 …. [10.5] Gemmell v Coldsworth [1942] SASR 55 …. [10.10] General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 …. [12.9] Gentle v Faulkner [1900] 2 QB 267 …. [7.12], [15.16] George Fischer v Multi Design (1998) 61 Con LR 85 …. [10.8] George MacGregor Auto Service Pty Ltd v Caltex Oil (Australia) Pty Ltd (1980) 51 FLR 458 …. [12.9] George v Cluning (1979) …. [11.3] — v Hille [1946] VLR 427 …. [20.30] — v Roach (1942) 67 CLR 253 …. [14.7] Gerard Estates Pty Ltd v McGregor [1967] 2 NSWR 292; (1967) 86 WN (Pt 1) (NSW) 156 …. [1.14] Germax Securities Ltd v Spiegal (1979) 123 Sol Jo 164; (1978) 37 P & CR 204; (1978) 250 EG 449 …. [14.8] Gerraty v McGavin (1914) 18 CLR 152; [1914] HCA 23 …. [1.6], [10.10], [13.13], [14.1], [14.5], [18.6] Gibb Australia Pty Ltd v Cremor Pty Ltd (1992) 108 FLR 129 …. [7.4], [11.3] Gibbons v Wright (1954) 91 CLR 423; [1954] ALR 383 …. [5.3], [5.4] Gibbs & Houlder Bros & Co Ltd’s Lease, Re [1925] Ch 198 …. [15.13] Gibson v Hammersmith and City Pty Co (1863) 2 Drew & Sm 603; 62 ER 748 …. [10.5] — v Norfolk County Council [1941] 1 KB 191 …. [26.10] Gigi Entertainment Pty Ltd v Schmidt [2012] NSWSC 1423 …. [15.19] Gilbert J McCaul (Aust) Pty Ltd v Pitt Club Ltd (1957) SR (NSW) 122; (1957) 76 WN (NSW) 72 …. [14.1], [14.5], [14.6], [14.8], [14.9] — v — (1959) 59 SR (NSW) 122 …. [14.1], [14.5], [14.6], [14.9] — v — [1978] …. [14.1]

Gilbert v Beattie [1921] GLR 58 …. [15.2] — v Shanahan [1998] NZLR 528 …. [7.3] Gilbey v Cossey (1912) 106 LT 607; [1911–13] All ER Rep 644 …. [4.6] Giles and McConachy’s Lease, Re [1953] VLR 273 …. [15.6], [15.9], [15.10] Giles v Hooper (1690) Carth 135; 90 ER 683 …. [7.1] Gill v Lewis [1956] 2 QB 1 …. [17.19], [19.1], [19.2] Gillard v Lifoon Pty Ltd [2005] NSWSC 687 …. [14.8] Gillett v Burke [1997] 1 VR 81 …. [23.36] Gillion v Casserly (2005) Q ConvR 54-626 …. [15.5] Gilshenan v Hancox; Ex parte Hancox [1958] Qd R 111 …. [20.7], [20.8] Gimtak Pty Ltd v Cathie [2001] VSC 88 …. [10.13] Giuffre v City of Geelong (1992) V ConvR ¶54-438 …. [19.2], [19.4] Giumelli v Giumelli (1999) 196 CLR 101 …. [1.15] Given v CV Holland (Holdings) Pty Ltd (1977) 29 FLR 212 …. [12.10] — v Pryor (1980) …. [12.12] Glass v Kencakes Ltd [1966] 1 QB 611; [1964] 3 All ER 807 …. [18.7], [18.8] — v —; Bickerton’s Aerodromes Ltd v Young (1958) 108 L Jo 218 …. [18.7] — v —; Borthwick-Norton v Romney Warwick Estates Ltd [1950] 1 All ER 798 …. [18.7] — v —; Egerton v Esplanade Hotels London Ltd [1947] 2 All ER 88 …. [18.7] GJ Coles & Co Ltd v Federal Commissioner of Taxation (1975) 132 CLR 242; 6 ALR 83 …. [15.1], [15.2], [15.19] Glasshouse Investments Pty Ltd v MPJ Holdings Pty Ltd [2005] NSWSC 456 …. [8.4], [8.5], [13.15] Glebe Administration Board v Perpetual Trustee Co Ltd [1962] NSWR 19; 79 WN (NSW) 335 …. [20.15] — v Tasker [1964] NSWR 1307 …. [18.4], [18.9] Glebe Island Terminals v Continental Seagram Pty Ltd (1993) 40 NSWLR 206 …. [16.36]

Gleeson v Richey [1959] VR 258 …. [2.7], [17.1], [17.14], [20.1], [20.2], [20.3], [20.18] Glenelg Backpackers Resort Pty Ltd v 1–3 Alexander Terrace Pty Ltd [2003] SASC 196 …. [27.18] Glentham Pty Ltd v Luxer Holdings Pty Ltd [2006] WASC 132 …. [16.26], [16.30] Glenwood Lumber Co v Phillips [1904] AC 405; [1904-7] All ER Rep 203 …. [1.3], [3.3] Global Halal Meat Exports Pty Ltd v Macri Investments Pty Ltd (SC(WA), 11 April 1996, unreported) …. [4.1] Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82;55 ALR 25; ASC 55-334; ATPR 40-463 …. [12.9], [24.3], [25.13], [26.3], [27.3], [28.3] Glossop v Ashley [1922] 1 KB 1 …. [26.10] GM & MY Campbell & Co Pty Ltd v Cotton [1992] ANZ Conv R 610 …. [16.36] Gnych v Polish Club Ltd (2015) 255 CLR 414 …. [6.9] Gobblers Inc Pty Ltd v Stevens (1993) 6 BPR 97,488 …. [1.5], [1.6], [1.15] Goddard v Precians (1948) 66 WN (NSW) 166 …. [20.8] Godecke v Kirwan (1973) 129 CLR 629; 1 ALR 457 …. [14.3] Goldana Investments Pty Ltd v Amberdown Pty Ltd (2000) 10 BPR 18,001 …. [7.8] Goldberg v Kolt [1932] VLR 342 …. [20.8] Golden Harvest (Aust) Pty Ltd) v Paing Pty Ltd [2004] NSWCA 85 …. [24.3] Goldhar v Universal Sections & Mouldings Ltd (1963) 36 DLR (2d) 450 …. [11.17], [16.21] Goldman v Hargrave (1966) 115 CLR 458 …. [10.1] Goldmile Properties Ltd v Lechouritis [2003] 2 P & CR 1 …. [8.4] Goldsborough Mort & Co Ltd v Quinn (1910) 10 CLR 674 …. [14.1] Goldstein v Sanders [1915] 1 Ch 549 …. [12.3], [15.19] Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128

CLR 199; 3 ATR 546 …. [1.4], [1.5], [3.6], [24.2], [25.2], [26.2], [27.2], [28.2] Goldsworthy v Calvert [1953] QWN 11 …. [16.18] Gollin & Co Ltd v Karenlee Nominees Pty Ltd [1982] VR 493 …. [8.1], [24.8], [25.7], [26.7], [27.6] — v — (1983) 153 CLR 455 …. [11.6], [11.20], [17.18] Gooderham and Worts Ltd v Canadian Broadcasting Corporation [1947] AC 66 …. [10.13] Goodwin, Ex parte [1971] 1 NSWLR 461 …. [17.18] Goodwin, Ex parte; Re Read [1971] …. [11.14] Gordon v Lidcombe Developments Pty Ltd [1966] 2 NSWR 9 …. [8.1], [8.4] — v Selico Co Ltd (1986) 18 HLR 219; [1986] 1 EGLR 71 …. [10.1] — v Trustees of the Roman Catholic Church of the Diocese of Lismore [2010] NSWADT 230 …. [24.5] Gorman v Pye (1951) 68 WN (NSW) 180 …. [16.18] Gorton v Gregory (1862) 3 B & S 90; 122 ER 35 …. [15.20] Gott v Gandy (1853) 2 E & B 845; 118 ER 984 …. [10.1] Gotze v Ylitalo [2005] ANZ ConvR 159; (2005) Q ConvR ¶54-646 …. [10.1], [10.8], [10.13] Gould v Vaggelas (1985) 157 CLR 215 …. [12.9] Gourlay v Somerset (1815) 19 Ves 429; 34 ER 576 …. [9.1] Gower Chapman v Morris (SC(NSW), Kearney J, 15 April 1987, unreported) …. [14.8] Gower v Postmaster-General (1877) 57 LT 527; 4 TLR 5 …. [15.19] GP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20 …. [8.1] GPT Management Ltd v Spa Heaven Pty Ltd [2005] NSWSC 1043 …. [24.1], [24.20] GR Mailman & Associates Pty Ltd v Wormald (Aust) Pty Ltd (1991) …. [11.4], [11.6]

GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1987) NSW ConvR ¶55-324 …. [4.1] Grace Rymer Investments Ltd v Waite [1958] Ch 314 …. [11.2] Graham v Markets Hotel Pty Ltd (1942) 43 SR(NSW) 98 …. [10.8] — v — (1943) 67 CLR 567 …. [10.8], [10.13] — v Moree Local Aboriginal Land Council [2004] NSWSC 1178 …. [1.5], [4.1] Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93 …. [3.8] Granada Theatres Ltd v Freehold Investments (Leytonstone) Ltd [1956] …. [15.19] — v — [1958] …. [10.7] — v — [1959] Ch 592; [1958] 2 All ER 551; [1958] 1 WLR 845 …. [10.6], [10.7], [10.8], [10.13], [15.19] Grangeside Properties Ltd v Collingwoods Securities Ltd [1964] 1 All ER 143; [1964] 1 WLR 139 …. [18.10], [19.6] Grant v Edmondson [1931] 1 Ch 1; [1930] All ER Rep 48 …. [15.20] — v Grant (1870) 5 CP 727 …. [6.6] Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267 …. [10.6] Graves v Weld (1833) 5 B & Ad 105; 110 ER 731 …. [10.4] — v Graves [2007] EWCA Civ 660 …. [6.10] Gray v Bonsall [1904] 1 KB 601 …. [19.4], [19.6] — v Ellis [1925] St R Qd 209 …. [4.10] — v Owen [1910] 1 KB 622 …. [11.1] — v Taylor [1998] 1 WLR 1093b …. [1.3] Graystone Property Investments Ltd v Margulies [1984] 1 EGLR 27 …. [6.5] Great Western Railway Co v Smith (1876) 2 Ch D 235 …. [16.3], [17.16], [19.6] Greater London Council v Connolly [1970] 2 QB 100 …. [11.1] Greater Union Organisation Pty Ltd v Pappas (1968) 116 CLR 457; [1968]

ALR 137 …. [20.15] Greater Wollongong City Council v Barker [1964] NSWR 897; 81 WN (Pt 1) (NSW) 105 …. [17.12] Greco v Swinburne Ltd [1991] 1 VR 304 …. [1.1], [1.3], [1.5], [1.6], [2.1], [2.2], [2.19] Greek Macedonian Club Ltd v Pan Macedonian Greek Brotherhood NSW Ltd [2007] NSWSC 92 …. [19.4] Green v Bowes-Lyon [1960] 1 All ER 301; [1960] 1 WLR 176 …. [1.10], [4.1] — v Eales (1841) 2 QB 225 …. [10.13] — v Patten (1894) 15 ALT 254 …. [17.7], [17.14] — v Summers (1908) 14 ALR 218 …. [20.30] Greene v Church Commissioners [1974] Ch 467 …. [15.10] — v West Cheshire Railway Co (1871) LR 13 Eq 44 …. [10.13] Greenwood Village Pty Ltd v Tom the Cheap (WA) Pty Ltd [1976] WAR 49 …. [4.1], [4.8], [19.1] Green’s case (1582) Cro Eliz 3; 78 ER 269 …. [17.18] Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 33 NSWLR 33 …. [7.8], [10.6], [10.7], [10.8], [10.13], [13.1] Gregg v Goodall (1896) 17 ALT 231 …. [17.10] Gregory v Mighell (1811) 18 Ves 328; 34 ER 341 …. [4.2] Grepo v Jam-Cal Bundaberg Pty Ltd [2015] QCA 131; [2015] Q ConvR 54829 …. [14.1], [14.6] Grescot v Green [1700] 1 Salk 199; 90 ER 996 …. [15.19] Gresham House Estate Co v Rossa Grande Mining Co [1870] WN 119 …. [20.28] Greville v Parker [1910] AC 335 …. [14.6], [19.2] Grey v Ellison (1856) 1 Giff 438; 65 ER 900 …. [1.2], [5.14] — v Friar (1854) 4 HL Cas 565; 10 ER 583 …. [14.6] Griffin v Dunn (1878) 4 VLR (L) 419 …. [2.19]

Griffiths v McDougall and Carroll (1894) 16 ALT 29 …. [17.7] — v Pelton [1958] Ch 205 …. [14.1] — v Reid (1951) 51 SR (NSW) 377 …. [18.4] Grimley v Permanent Trustee Co of NSW Ltd (1935) 35 SR (NSW) 384 …. [7.2] Grimwood v Moss (1872) LR 7 CP 360 …. [16.2], [17.9], [17.10], [17.18] Grocon Constructors (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd [2015] VSCA 190 …. [6.5] Grossop v Ashley [1922] 1 KB 1 …. [16.19] Grove v Portal [1902] 1 Ch 727 …. [7.12] Growthpoint Properties Australia Ltd v Australia Pacific Airports (Melbourne) Pty Ltd [2014] VSC 556 …. [6.4] Gruer, Ex parte (1891) 8 WN (NSW) 44 …. [3.9] Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 …. [1.15], [14.6] Grymes v Boweren (1830) 6 Bing 437 …. [10.5] GS Fashions Ltd v B & Q plc [1995] 1 WLR 1088 …. [17.12], [17.18] Gu v Gold Valley Investments Pty Ltd [2005] NSWADT 169 …. [24.14], [28.12] Guest v Watson (1891) 17 VLR 497 …. [4.5] Guilfoyle Pty Ltd v National Mutual Life Association of Australasia (2000) V ConvR ¶54-622 …. [4.1], [4.7], [6.2] Guillemard v Silverthorne (1908) 99 LT 584 …. [18.6] Gunn v National Coal Board 1982 SLT 526 …. [8.6] Gunnion v Ardex Acceptance Pty Ltd [1968] VR 547 …. [18.3], [18.5], [18.7], [19.4] Guss v Ajax Technology Centre Pty Ltd (2000) V ConvR ¶54-612 …. [2.4] Gwyn v Neath Canal Navigation Co (1868) LR 3 Ex 209 …. [6.4] H L Bolton (Engineering) Co Ltd v T J Braham & Sons Ltd [1957] 1 QB 159;

[1956] 3 All ER 624 …. [5.8] HA Warner Pty Ltd v Williams (1974) 73 CLR 421 …. [3.5] Hace Corporation Pty Ltd v F Hannan (Properties) Pty Ltd (1995) BPR 14,326 …. [18.6], [19.2], [19.4] Haddin v Le Feuvre [1969] 2 NSWR 32 …. [24.19], [25.15], [27.17] Haddrick v Lloyd [1945] SASR 40 …. [16.18] Hadjiloucas v Crean [1988] 1 WLR 1006 …. [3.4] Hagee Ltd v A B Erikson & Larson (A Firm) [1976] QB 209 …. [2.16] Haidar v Blendale Pty Ltd [1993] 2 VR 524 …. [1.2], [15.1] Haines v Welch (1868) LR 4 CP 91 …. [10.4] Hall v Busst (1961) 104 CLR 206; [1961] ALR 508 …. [4.2] — v City of London Brewery Co Ltd (1862) 2 B & S 737; 121 ER 1245 …. [8.4] — v Eve (1876) 4 Ch D 341 …. [13.8] — v Joyworth [1993] V ConvR ¶54-461 …. [25.2] — v Lund (1863) 1 H & C 676 …. [6.5] — v National Mutual Life Nominees Ltd [1999] ANZ ConvR 301 …. [7.16] Hallett v Martin (1883) 24 Ch D 624 …. [5.19] Hallisey v Petmore Developments Ltd [2000]] All ER (D) 1632; [2000] EGCS 124 …. [10.8] Halloran v Firth (1926) 26 SR (NSW) 183 …. [1.2] Halsey v Lowenfield [1916] 2 KB 707 …. [5.2] — v Milton Keynes General NHS Trust [2004] 4 All ER 920 …. [23.58], [23.61] Hamerton v Stead (1824) 3 Barn & Cress 478; 107 ER 811 …. [16.21] Hamey v Nelson [1878] …. [14.3] Hamfray Carpets Australia Pty Ltd v Hycraft Carpets Pty Ltd (1996) ACLC 555 …. [6.6] Hamilton Island Enterprises Ltd v Croycom Pty Ltd [1998] ANZ ConvR 615; (1998) Q ConvR ¶54-509 …. [1.4], [3.3]

Hamilton v Chapman [1902] QWN 86 …. [3.9] — v Clanricarde (1762) 1 Brown 341; 1 ER 608 …. [5.13] — v Dawson (1899) 5 ALR 266 …. [17.10] — v Martell Securities Ltd [1984] Ch 266 …. [10.13] — v Porta [1958] VR 247 …. [2.4], [2.9], [2.12], [15.9] — v Warne (1907) 4 CLR 1293 …. [17.2] Hamilton-Smith v CFS Managed Property Ltd [2005] SASC 461 …. [12.9], [27.3] Hammersmith and Fulham London Borough Council v Monk [1992] 1 AC 478; [1992] 1 All ER 1 …. [2.1], [5.15], [5.18], [14.8], [20.8] — v Top Shop Centres Ltd [1990] Ch 237 …. [1.15], [19.4], [19.6] Hammerton v Stead (1824) 3 B & C 478; 107 ER 811 …. [2.16] Hammond v Bishop (1933) …. [11.28] — v Farrow [1904] 2 KB 332 …. [1.6] Hampshire v Wickens (1878) 7 Ch D 555 …. [7.16], [9.2], [9.3], [17.8] Hampson v Clyne (1967) 86 WN (NSW) 321 …. [10.8] Hanak v Green (1958) …. [7.4] Hanau v Ehrlich [1912] AC 39 …. [1.6] Hand v Hall (1877) 2 Ex D 355 …. [1.6], [14.1] Haniotis v Dimitriou [1983] 1 VR 498 …. [16.36], [21.2] Hankey v Clavering [1942] 2 KB 326; 2 All ER 311 …. [20.17], [20.20] Hannaford (trading as Torrens Valley Orchards) v Australian Farmlink Pty Ltd [2008] FCA 1591 …. [12.9] Hanson v Newman [1934] Ch 298 …. [10.13] Happy Century Pty Ltd v Nezville Pty Ltd (2000) V ConvR ¶58-546 …. [23.12], [23.13], [23.57] Harbourside Catering Pty Ltd v TMG Developments Pty Ltd [2007] NSWSC 1375 …. [24.6], [24.18] Hardwick v Johnson [1978] 1 WLR 683 …. [3.6] Hare v Burges (1857) 4 K & J 45; 70 ER 19; [1843–60] All ER Rep 650 ….

[14.2] Harlon Pty Ltd (in liq), Re [1950] VLR 499 …. [14.3] Harlow v Mitchell [1970] QWN 68 …. [13.8] Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] 1 Ch 200 …. [8.5] Harmond Properties Ltd v Gajdzis [1968] 3 All ER 263; [1968] 1 WLR 1858 …. [20.9], [20.17], [20.23], [20.24] Harper v Fairbrother [1951] ALR 951 …. [3.4] Harries v Bryant (1827) 4 Russ 89; 38 ER 738 …. [14.11] Harris v Carnegie’s Pty Ltd [1917] VLR 95 …. [16.34] — v Jones (1832) 1 M & Rob 173; 174 ER 59 …. [10.8] — v Thallon (1926) 26 SR (NSW) 456 …. [18.6], [18.9] Harrison v Inala Plaza Pty Ltd (2003) Q ConvR ¶54-580 …. [7.8] — v Petkovic [1975] …. [7.4], [11.3] Harrod v Palvaris Construction Pty Ltd (1973) 8 SASR 54 …. [6.5] Harrow LBC v Johnstone [1997] 1 WLR 459 …. [5.15] Hart v Emelkirk Ltd [1983] 1 WLR 1289 …. [10.13] — v Hart (1881) 18 Ch D 670 …. [6.5] — v Huna [1999] VCAT 626 …. [23.61] — v Rogers [1916] 1 KB 646 …. [7.4] — v Windsor [1843] 12 M & W 68; [1843-60] All ER Rep 681 …. [6.7], [8.4], [10.1] — v Windsor (1844) 12 M & W 68; 152 ER 1114 …. [8.4], [10.1] Hartley v Larkin (1950) 66 TLR 896 …. [18.7] Hartshorne v Watson (1838) 132 ER 756 …. [17.16] Harty v Kolman [1977] 1 NSWLR 674 …. [20.5], [20.7], [23.15] Harvey v Pratt [1965] 1 WLR 1025 …. [4.2], [4.8] — v — [1965] 2 All ER 786 …. [4.8] — v Walker (1945) 46 SR (NSW) 180 …. [15.8] Haselhurst v Elliot [1945] VLR 153 …. [1.6], [4.3]

Haskell v Marlow [1928] 2 KB 45 …. [10.8], [10.11] Havane Pty Ltd v LFOT Pty Ltd [1998] 1051 FCA 31 …. [12.9] Havelberg v Brown [1905] SALR 1 …. [10.1] Hawke v McGrath (1900) 10 QLJ 83 …. [14.6] Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185 …. [8.4], [13.15] Hawkett v Tailgate Taxi Trucks Pty Ltd (1990) V ConvR ¶54-400 …. [16.28], [16.34] Hawtrey v Beaufront Ltd [1946] KB 280; 1 All ER 296 …. [20.12] Hay v Swedish & Norwegian Railway Co Ltd (1892) 8 TLR 775 …. [5.10] Hayes v Gumbola (1986) 4 BPR 9247 …. [19.2], [19.4] — v — (1986) 4 BPR 97263 …. [19.2] — v — (1988) NSW ConvR ¶55-375 …. [19.4] — v Seymour-Johns (1981) 2 BPR 9366 …. [1.3], [1.4], [1.12] Haynes v Doman [1899] 2 Ch 13 …. [6.4] Hazelmere Estates Ltd v British Olivetti Ltd (nreported, High Court of Justice, UK, Deputy Judge David McNeil QC, No 1976/H1232, 1 June 1977) …. [15.18] Head v Zimmerman Investments Pty Ltd [2010] WASAT 75 …. [26.10] Healing Research Trustee Co Ltd, Re [1992] 2 All ER 481 …. [15.18], [15.21] Health Partners Incorporated v Gonos (1996) 67 SASR 338 …. [14.6] Healy v Southern Milk Transport Pty Ltd [1954] VLR 448 …. [4.4], [4.8], [13.2], [14.5], [14.6] Heaps v Addison Wesley Longman Australia Pty Ltd [1999] …. [11.20] Heath v McGrath [1951] VLR 496 …. [20.10] Hedin v McIntyre [2005] VCAT 227 …. [23.65] Heidke v Sydney City Council (1952) 52 SR (NSW) 143 …. [3.8] Heilbut Symons & Co v Buckleton [1913] AC 30; [1911–13] All ER Rep 83 …. [6.11]

Heimann v Commonwealth (1938) 38 SR (NSW) 691 …. [8.1] Helman v Horsham & Worthing Assessment Committee [1949] 2 KB 335 …. [3.4] Hely v Sterling [1982] VR 246 …. [11.5], [14.3] Hemmings v Stoke Poges Golf Club [1918–19] All ER Rep 1170; [1920] 1 KB 720 …. [21.2], [21.3] Hemmingway Realty Ltd v Master Wardens and Commonalty of Freemen of the Art or Mystery of Clothworkers of the City of London [2005] …. [11.5] Hempel v Robinson [1924] SASR 288 …. [14.3] Henare Tomonana v Ormond (1878) 3 NZ Jur (NS) SC 86 …. [5.15] Henderson v Harrison [1916] QWN 6; [1916] 10 QJPR 25 …. [10.8], [10.11] — v Squire (1869) LR 4 QB 170 …. [8.9] — v Thorn [1893] 2 QB 164 …. [10.13] — v Thorne (1895) 16 ALT 193 …. [13.8] Heng v Levison [2006] WASCA 67 …. [26.5] Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1989) 89 ALR 539 …. [12.9] Henning v Ramsay [1964] NSWLR 1165 …. [4.1] Henningsen v Nolan (2004) 88 SASR 214; [2004] SASC 105 …. [27.7], [27.16] Henry v Humphris [1956] VLR 371 …. [20.10] Herman v Gill (1921) 24 WALR 10 …. [16.8] Herriott v Crofton Holdings Ltd [1974] 2 NZLR 383 …. [6.6] Heslop v Burns [1974] 1 WLR 1241 …. [2.15], [3.5], [6.2] Hewitt v Rowlands (1924) 131 LT 757; [1924] All ER Rep 344 …. [10.7] Heyman v Darwins Ltd [1942] AC 356; [1942] 1 All ER 337 …. [16.26] Heysham Properties Pty Ltd v Action Motor Group [1997] ANZ ConvR 440 …. [4.1]

Heywood v Miles [1944] VLR 155 …. [20.9] HG v R (1999) 197 CLR 414 …. [10.13] Hick v Raymond and Reid [1893] AC 22 …. [18.7] Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) NSWLR 310 …. [6.6] Hi-Fi Sydney Pty Ltd (Admin Apptd), Re [2015] NSWSC 1312 …. [18.4], [19.2] Higgs v Scott (1849) 7 CB 63; 137 ER 26 …. [15.20] Highpoint Homemaker Centre (Vic) Pty Ltd v Sanstar Pty Ltd [1997] V ConvR ¶54-564 …. [6.4], [6.5], [11.5], [11.6], [11.9] Highway Properties Ltd v Kelly, Douglas & Co Ltd (1971) 17 DLR (3d) 710 …. [6.10], [11.17], [16.21], [16.28], [16.29] Hildebrand v Lewis [1941] 2 KB 135; [1941] 2 All ER 584 …. [11.3], [16.22] Hi-Lift Elevator Services v Temple (1994) 28 HLR 1; 70 P & CR 620 …. [10.7] Hill v Barclay (1810) 16 Ves Jun 402; 33 ER 1037 …. [10.13] — v — (1811) 18 Ves Jun 56; 34 ER 238 …. [19.1], [19.3] — v Fearis [1905] 1 Ch 466 …. [24.5], [25.5], [27.5] — v Harris [1965] 2 QB 601 …. [6.7], [7.8] — v Hill (1947) Ch 23 …. [14.1] — v Short (1910) SALR 141 …. [7.12], [15.16], [17.18], [18.6], [19.2] Hillas and Co Ltd v Arcos Ltd (1932) 147 LT 503 …. [4.2], [4.8] Hillier v Goodfellow (1988) V ConvR 54-310 …. [14.8] Hindcastle Ltd v Barbara Attenborough Associates Ltd [1996] 2 WLR 262 …. [28.15] — v — [1997] AC 70 …. [15.1], [15.18], [16.25] Hinds v Randell (1961) 177 EG 733; [1961] LMD 2536 …. [14.8] Hinton v Fawcett [1957] SASR 213 …. [16.2], [17.18] Hircock v Windsor Homes (Development No 3) Pty Ltd [1979] 1 NSWLR 501 …. [14.8]

Hirji Mulji v Cheong Yue Steamship Co Ltd [1926] AC 497 …. [6.10] Hirlmont Pty Ltd v Dybka (1999) ANZ ConvR 405; (1998) Q ConvR ¶54517 …. [10.10], [11.3] Hirst v Horn (1840) 6 M & W 393; 151 ER 464 …. [17.17] Hitech Pathology Pty Ltd v Bankberg Pty Ltd (1999) V ConvR ¶58-536 …. [23.18] Hobson v Gorringe [1897] 1 Ch 182 …. [10.5], [16.36] Hodges v Lawrance (1854) 18 JP 347 …. [16.19] Hodgkinson v Crowe (1875) LR 10 Ch 622 …. [9.3], [11.15], [17.8] Hoffman v Fineberg [1949] Ch 245; [1948] 1 All ER 592 …. [18.7] Hogg v Brooks (1885) 15 QBD 256 …. [20.27], [20.29] Holden v Blaiklock [1974] 2 NSWLR 262; (1975) 49 ALJ 289 …. [17.1], [17.5], [18.1], [18.4] — v Nuttall [1945] VLR 171 …. [3.3] Holding and Management Ltd v Property Holding and Investment Trust plc [1989] 1 WLR 1313 …. [10.8] Holidaywise Koala Pty Ltd v Queenslodge Pty Ltd [1977] VR 164 …. [6.9], [11.18] Holland v Hodgson (1872) LR 7 CP 328 …. [10.5] — v Wiltshire (1954) 90 CLR 409 …. [16.31], [16.33] Holliday, Re [1922] 2 Ch 698 …. [15.4] Hollier v Australian Maritime safety Authority (1998) V ConvR ¶54-581 …. [1.15] Holme v Brunskill (1878) 3 QBD 495 …. [16.19] Holmes v North (1872) 2 VLR (L) 84 …. [3.9] Holt v Cox (1997) …. [11.20] Holwell Securities Ltd v Hughes [1973] 1 WLR 757 …. [14.10] — v — [1974] 1 WLR 155 …. [14.10] Homburg Houtimport BV v Agrosin Private Ltd [2004] 1 AC 715; [2003] UKHL 12 …. [6.4]

Home Yardage (NSW) Pty Ltd v Telado Pty Ltd (FCA, Beaumont J, 8 April 1998, unreported) …. [10.10] Homfray Carpets Australia Pty Ltd & Hycraft Carpets Pty Ltd, Re (1996) 14 ACLC 555 …. [6.6] Honey Pool of Western Australia, Re (1988) 6 ACLC 208 …. [5.8] Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26 …. [16.26] Honner v Ashton (1979) 1 BPR 9478 …. [16.30], [16.35] Hoogerdyk v Condon (1990) 2 NSWLR 171; 66 ALJ 49 …. [15.14], [23.36], [24.5], [25.5], [27.5] Hooker Industrial Developments Pty Ltd v Trustees of the Christian Brothers [1977] 2 NSWLR 109 …. [1.5] Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194; 10 BCL 199 …. [23.54] Hope v Bathurst City Council (1980) 54 ALJR 345 …. [25.5] — v Hope (1854) 4 De G M & G 328; 43 ER 534 …. [20.27] Horn v Beard [1912] 3 KB 181 …. [1.9] Horne v Horne; Re Stephenson’s Settled Estates (1906) 26 NZLR 1208; 6 SR (NSW) 420 …. [5.17] Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 …. [12.9] Horowitz Holdings Pty Ltd v Plastic Reclaimers (Australia) Pty Ltd (1982) 2 BPR 9492 …. [7.2], [13.17] Horsefall v Mather (1815) Holt NP 7 …. [8.7] Horsey Estate Limited v Steiger [1899] 2 QB 79; [1895–9] All ER Rep 515 …. [18.2], [18.6], [18.9] Horwich v Symond (1914) 110 LT 1016 …. [10.5] — v — (1915) 84 LJKB 1083 …. [10.5] Hoskins v Dillon (1950) 67 WN (NSW) 115 …. [15.19], [16.21] Hotel Terrigal Pty Ltd (in liq) v Latec Investments Ltd (No 2) [1969] 1 NSWR 676 …. [15.3]

Houlder Bros & Co Ltd v Gibbs [1925] Ch 575 …. [15.13] Hounslow (London Borough Council) v Twickenham Garden Developments Ltd [1970] 3 All ER 326; [1970] 1 Ch 233 …. [3.8] — v Pilling [1993] 1 WLR 1242 …. [5.15] — v — [1994] [1994] 1 All ER 432 …. [20.8] Housing Commission of NSW v Allen [1967] 1 NSWR 776; 86 WN (Pt 2) (NSW) 204 …. [17.12], [21.2] Howard v Fanshawe [1895] 2 Ch 581; [1895–9] All ER Rep 855 …. [16.29], [16.30], [17.19], [19.1], [19.2] Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 …. [4.1] Howey v Dolan [1915] VLR 297 …. [14.3] Hoyt’s Pty Ltd v Spencer (1919) 27 CLR 133 …. [6.11] Hua Chiao Commercial Bank Ltd v Chiaphua Industries Ltd [1987] AC 99 …. [15.19], [15.20] Hudson Crushed Metals Pty Ltd v Henry [1985] 1 Qd R 202 …. [16.34] Hudson v Williams (1897) 39 LT 632 …. [10.9] Huggett v Miers [1908] 2 KB 278; [1908–10] All ER Rep 184 …. [8.1] Hughes v NLS Pty Ltd [1966] WAR 100 …. [11.17], [13.4], [16.11], [16.22], [16.30] — v Waite [1957] 1 WLR 713 …. [11.1], [15.15] Hughes, Ex parte; Re Dumbell (1802) 31 ER 1223 …. [5.17] Hulse, Re [1905] 1 Ch 406 …. [10.5] Humberstone v Dubois (1842) 10 M & W 765; 152 ER 681 …. [17.17] Humphreys v Green (1882) 10 QBD 148 …. [4.6] Hunt v Luck [1902] 1 Ch 428; [1900–03] All ER Rep 295 …. [4.8], [7.4], [14.5] Hunte v E Bottomley & Sons Ltd [2007] EWCA Civ 1168 …. [8.4] Hunter v Earl of Hopetoun (1865) 13 LT 130; 29 JP 727 …. [14.8], [14.11] Hunter’s Lease, Re [1942] Ch 124; 1 All ER 27 …. [15.20] Hunts Refuse Disposals Ltd v Norfolk Environmental Waste Services Ltd

[1997] 1 EGLR 16 …. [1.4] Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242 …. [12.9] Hurd v Whaley [1918] 1 KB 448; [1918–19] All ER Rep 812 …. [18.6], [19.6] Hurley v McDonalds Australia Ltd [1999] …. [12.14] Hussain v Lancaster City Council [1999] 4 All ER 125 …. [7.14] Hussey v Domville [1903] 1 IR 265 …. [14.11] — v Horne-Payne (1879) 4 App Cas 311 …. [4.1] Hutchison v Ripeka te Peehi [1919] NZLR 373 …. [11.1] Hyams Wholesalers Pty Ltd v Western Australian Planning Commission [2010] WASC 48 …. [26.12] Hydarnes Steamship Co v Indemnity Mutual Marine Assurance Co [1895] 1 QB 500 …. [6.4] Hyde v Warden (1877) 3 Ex D 72 …. [20.16] Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd [2001] NSWCA 313 …. [13.17] Hydra Pty Ltd v Holmes & Holmes [2002] SASC 14 …. [1.4] Hyman v Rose [1912] AC 623; [1911–13] All ER Rep 238 …. [19.4], [19.5] Hyundai Heavy Industries Co Ltd v Papadopoulos [1980] 1 WLR 1129 …. [16.32] I M Fairclough & Sons Ltd v Berliner [1930] 1 Ch 60 …. [19.2], [19.5] IBM Australia Ltd v MEPC Australia Ltd [1991] …. [11.8] Ibrahim v Dovecorn Reversions Ltd [2001] 2 EGLR 46; [2001] 30 EG 116 …. [10.8] ICI Alkali (Aust) Pty Ltd (in vol liq) v Federal Commissioner of Taxation [1977] VR 393; (1976) 6 ATR 271 …. [1.4], [3.3], [3.6] — v — (1978) 9 ATR 373 …. [3.3], [3.6] Ideal Film Renting Co Ltd v Nielsen [1921] 1 Ch 575 …. [15.8], [15.9]

Iggulden v May (1804) 9 Ves 325; 32 ER 628 …. [14.2] — v — (1806) 7 East 237 …. [7.2] IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd [2017] VSCA 178 …. [23.18] Impact Funds Management Pty Ltd v Roy Morgan Research Ltd [2016] VSC 221 …. [16.34], [19.2] Imperial Loan Co v Stone [1892] 1 QB 599; [1891–94] All ER Rep 412 …. [5.4] Imray v Oakshette [1897] 2 QB 218 …. [19.6] — v — [1910] …. [19.6] India Pty Ltd v Florlim Pty Ltd [2003] SASC 161 …. [16.35], [18.2] Indian Taj Pty Ltd (in liq) v Gilany [2005] ANZ ConvR 310 …. [16.12] Indian Taj v Gilany [2004] NSWSC 1249 …. [24.18] Indrisie v General Credits Ltd [1985] VR 251 …. [7.4] Industrial Services Pty Ltd v 52–64 Latrobe Street Pty Ltd [2007] VCAT 918 …. [23.40] Inglis v Buttery (1878) 3 App Cas 552 …. [6.5] Ingram v Inland Revenue Commissioners [1997] 4 All ER 395 …. [1.2], [1.3], [4.1], [4.8], [5.14], [7.15] Inman v Stamp (1815) 1 Stark 12; 171 ER 386 …. [4.3] Insearch Ltd v Kin Hing Pty Ltd [2004] ANZ ConvR 111 …. [4.8] Integrated Computer Service Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 …. [4.1] Intercon Group Pty Ltd v Nakajima [2005] VCAT 918 …. [23.62] International Air Transport Association v Ansett Australia Holdings (IATA) (2008) 234 CLR 151 …. [6.4] International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] Ch 513 …. [10.8], [15.6], [15.11], [15.13], [15.14] Investanley Holdings Pty Ltd v South Eastern Qld Water Corporation [2004] QSC 201 …. [17.5]

Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896; [1998] 1 All ER 98 …. [6.4], [11.8], [14.3] Inwards v Baker [1965] 2 QB 29 …. [1.15] IOOF Australia Trustees (NSW) Ltd v Tantipech (1998) 156 ALR 470 …. [12.9] Iqbal v Thakrar [2004] 3 EGLR 21 …. [10.8] IRC v Muller & Co’s Margarine Ltd [1901] AC 217 …. [24.5], [25.5], [27.5] Irvine v Moran [1991] 1 EGLR 261 …. [10.8] — v Penwarden (1912) 32 NZLR 43 …. [9.1], [9.2] Irving Trust Co v Burke (1933) 65 F (2d) 730 …. [11.1] Isaac v Hotel de Paris Ltd [1960] 1 WLR 239 …. [1.4] Isaacs v Lord [1920] VLR 274 …. [10.5] Isenberg v East India House Estate Co Ltd (1863) 3 De GJ & S 263 …. [7.8] Islam v South Sydney City Council (1998) 9 BPR 16,865 …. [19.2], [19.4] Ive’s (1597) 6 Co Rep 11a …. [16.21] Ivermee (Third Party) [1969] 1 NSWLR 193 …. [4.3] J & C Reid Pty Ltd v Abau Holdings Pty Ltd (1988) NSW ConvR ¶55-416 …. [16.26], [16.28], [16.31], [16.35] J & S Chan Pty Ltd v McKenzie (1994) ANZ ConvR 610 …. [16.30] J A McBeath Nominees Pty Ltd v Jenkins Corporation Pty Ltd [1992] 2 Qd R 121 …. [15.6], [15.11], [15.13], [15.14] J C Berndt Pty Ltd v Walsh [1969] SASR 34 …. [13.15] J C Williamson Ltd v Lukey (1931) 45 CLR 282 …. [4.5], [4.9], [7.8], [10.13], [13.11] J F Hillam Pty Ltd v Mooney (1988) 48 SASR 381 …. [10.8] J J Savage & Sons Pty Ltd v Blakney (1971) 119 CLR 435; [1971] ALR 92 …. [6.11] — v Stewart’s Cash and Carry Stores (1942) 66 CLR 116 …. [16.30] J W Cafes Ltd v Brownlow Trust Ltd [1950] 1 All ER 894 …. [13.4]

Jackson v Simons [1923] 1 Ch 373; [1922] All ER Rep 583 …. [15.3] Jackson, Ex parte; Re Australasian Catholic Assurance Co Ltd (1941) 41 SR (NSW) 285 …. [1.14] Jacob v Down [1900] 2 Ch 156 …. [18.6] Jacob & Youngs Inc v Kent 230 NY 239; 129 NE 889 (1921) …. [10.13] Jacobs v Chaudhuri [1968] 2 QB 470; [1968] 2 All ER 124 …. [19.2], [19.5] — v Platt Nominees Pty Ltd [1990] VR 146 …. [14.1] Jacques Nominees Pty Ltd v Jam Factory No 1 Pty Ltd [2003] VCAT 176 …. [19.3] Jaeger v Mansions Consolidated Ltd (1903) 87 LT 690 …. [8.4] Jam Factory Pty Ltd v Sunny Paradise Pty Ltd [1989] VR 584 …. [19.2], [19.5] James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 …. [6.6] James v Hutton [1950] 1 KB 9 …. [10.13] — v Nesbitt (1954) 28 ALJ 482 …. [16.17] Janos v Chama Motors Pty Ltd [2011] NSWCA 238 …. [19.5] Jarre Pty Ltd v Vumbaca (No2) (1999) …. [11.21] Jarrott v Ackerley (1916) 85 LJ Ch 135 …. [5.13] Jasam (AMC) Pty Ltd v The Australis Marketing Corporation (Int) Pty Ltd (SC(Vic), Hayne J, 23 February 1995, unreported) …. [6.5] Javad v Aqil [1991] 1 WLR 1007 …. [1.15], [2.7], [2.8], [2.12], [2.16], [2.19] JB (Northbridge) Pty Ltd v St George Bank Ltd (2010) 15 BPR 28,933 …. [14.6] JDM Investments Pty Ltd v Todbern [2000] NSWSC 349 …. [15.13], [24.18] Jefferies v RC Dimock Ltd [1987] …. [11.8] Jelley v Buckman [1974] QB 488 …. [20.16] Jenkin R Lewis & Son Ltd v Kerman [1970] 1 All ER 833; [1970] 2 WLR 378 …. [16.19] — v — [1971] Ch 477; [1970] 3 All ER 414 …. [16.19]

Jenkins v Harbour View Courts Ltd [1966] NZLR 1 …. [5.8] — v Levinson (1929) 29 SR (NSW) 151 …. [8.1] — v Morris (1880) 14 Ch D 674 …. [5.4] — v Price [1907] 1 Ch 229; [1908] 1 Ch 10 …. [7.8], [15.15] Jenkinson v Young [2004] SADC 30 …. [27.3] Jennings Industries Ltd v Commonwealth of Australia (1983) 69 FLR 189 …. [18.6], [19.2] Jervis v Harris [1996] Ch 195 …. [10.13] Jeune v Queens Cross Properties Ltd [1974] Ch 97; [1973] 3 All ER 97 …. [10.13] Jigrose v Drummond (1994) ANZ Conv R 212 …. [16.36] JLW (NSW) Pty Ltd v Seabridge Australia Pty Ltd (1992) 107 ALR 291 …. [24.2] Joad Pty Ltd v Ospies Hotel Pty Ltd [1994] V ConvR ¶54-505 …. [25.2], [26.2] — v — [1995] 1 VR 198 …. [23.18] Joel v International Circus and Christmas Fair (1920) …. [1.12] — v Swaddle [1957] 1 WLR 1094 …. [10.8] John Betts & Sons Ltd v Price (1924) 40 TLR 589 …. [15.18], [15.20] Johnsey Estates Ltd v Lewis & Manley (Engineering) Ltd [1987] 2 EGLR 69 …. [15.21] Johnson v Agnew [1980] AC 367 …. [16.32] — v Billyard (1890) 11 NSWLR (L) 319 …. [11.1] — v Bones [1970] 1 NSWLR 28 …. [14.1], [14.8] — v Edgware Railway Co (1866) 55 ER 982 …. [6.5] — v Senes (1961) 78 WN (NSW) 861 …. [18.2], [18.4], [18.6], [18.7], [18.10] — v — [1961] NSWR 566 …. [18.4], [18.6], [18.7], [18.10] Johnston Fear & Kingham & Offset Printing Co Pty Ltd v Commonwealth (1943) 67 CLR 314 …. [13.8]

Johnston v Simeon [1884] NZLR 2 SC 216 …. [16.19], [16.21] Johnstone v Commerce Consolidated Pty Ltd [1976] VR 463 …. [6.8] — v Hudlestone (1825) 4 B & C 922; 107 ER 1302 …. [17.17] — v Milling (1886) 16 QBD 460 …. [16.26], [16.30] Joint Coal Board v Noone Pty Ltd (1984) …. [11.5] Joint London Holdings Ltd v Mount Cook Land Ltd [2005] EWCA Civ 1171 …. [7.8] Jones d Griffiths v March (1791) 4 Term Rep 464; 100 ER 1121 …. [20.27] Jones v Bartlett (2000) 205 CLR 156 …. [10.6] — v Bridgman (1878) 39 LT 500; 43 JP 112 …. [16.19] — v Carter (1846) 15 M & W 718; 115 ER 1040 …. [11.3], [16.2], [16.30], [17.9], [17.10], [17.12], [17.18] — v Curling (1884) 13 QBD 262 …. [22.4] — v Daniel [1894] 2 Ch 332 …. [14.8] — v Edwards (1994) 3 Tas R 350 …. [16.18], [16.30], [16.34] — v Foley [1891] 1 QB 730 …. [20.30] — v Jones (1971) …. [11.20] — v Lavington [1903] 1 KB 235 …. [8.4], [26.12], [26.13] — v Mega Bargains Pty Ltd (VCAT, Deputy President Macnamara, 19 February 2007, unreported) …. [23.44], [23.45], [23.46] — v Sherwood Computer Services 121c (1992) …. [11.20] Jonns v Kim Seong Tan [1999] NSW SC 64 …. [14.4] Jopling v Jopling (1908) 8 CLR 33 …. [4.2] Joscelyne v Nissen [1970] 2 QB 86 …. [6.8] Joseph v Joseph [1967] Ch 78; [1966] 3 All ER 486 …. [5.14], [16.19] Josland v Mullaly Properties Pty Ltd (1993) …. [11.3] Jourdain v Wilson (1821) 4 B & A 266; 106 ER 935 …. [15.20] Jovanovski v Santana (2001) V ConvR ¶58-564 …. [23.40] Joyce v Realm Marine Insurance Co (1872) LR 7 QB 580 …. [6.5]

Joyner v Weeks [1891] 2 QB 31; [1891–4] All ER Rep Ext 1938 …. [1.10], [1.16], [10.13] JT Sydenham & Co Ltd v Enichem Elastomers Ltd [1989] 1 EGLR 257 …. [7.8] Julian v McMurray (1924) 24 SR (NSW) 402 …. [10.11] Juneau Pty Ltd v Kayford Pty Ltd (1991) ATPR ¶41-117 …. [12.9] Junghenn v Wood (1958) SR (NSW) 327 …. [11.1], [11.2] Justbake Pty Ltd v Otranto Nominees Pty Ltd (VCAT, Senior Member Davis, 22 October 2003, unreported) …. [23.41] — v — [2004] VCAT 1350 …. [23.41] Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR ¶40-950 …. [4.8] Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 …. 12.14 Kalnenas v Kovacevich [1961] WAR 188 …. [4.5], [4.6] Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 873 …. [16.30] Kanda v Church Commissioners for England [1958] 1 QB 332; [1957] 2 All ER 815 …. [18.10] Kanivah Holdings Pty Ltd v Holdsworth Properties Pty Ltd (2002) …. [11.20] Karacominakis v Big Country Developments Pty Ltd (2000) 10 BPR 18, 235; [2000] NSWCA 313; [2001] ANZ ConvR 513; [2001] ANZ ConvR 577 …. [1.6], [4.8], [16.30] Karaggianis v Malltown Pty Ltd (1979) 21 SASR 381 …. [8.1], [8.2], [8.4], [24.8], [25.7], [26.7], [27.6] Karenlee Nominees Pty Ltd v Gollin and Co Ltd (1983) …. [11.20] Kassabian v Lagonicos (1993) NSW ConvR 55-690 …. [4.1] Kater v Kater (1960) 77 WN (NSW) 873 …. [2.17] — v — (1960) 104 CLR 497; [1961] ALR 418 …. [2.17] Kaufman v Michael (1892) 18 VLR 375 …. [4.7], [4.9] Kavia Holdings Pty Ltd v Suntrack Holdings Pty Ltd [2011] NSWSC 716 ….

[14.8] Kavir Pty Ltd v Dwyer [1973] Qd R 192 …. [6.8] Kay’s Leasing Corporation Pty Ltd v CSR Provident Fund Nominees Pty Ltd [1962] VR 429 …. [10.5] Kays Holdings Pty Ltd v Nassar [1967] 1 NSWR 335; 87 WN (Pt 2) (NSW) 189 …. [20.15], [20.17] Kazas & Associates Pty Ltd v Multiplex (Mountain Street) Pty Ltd (2002) 11 BPR 20,353 …. [6.7] Keech v Sandford (1726) Cas temp King 61; 25 ER 223; [1558–1774] All ER Rep 230 …. [5.17], [14.8] Keehn v Medical Benefits Fund of Australia Ltd (1977) 14 ALR 77 …. [12.9], [23.39], [24.3], [25.13], [26.3], [27.3], [28.3] Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1989) ATPR (Digest) ¶46-048 …. [12.9] Keith Henry & Co Pty Ltd v Stewart Walker & Co Pty Ltd (1958) 100 CLR 342 …. [14.8] Keith v Twentieth Century Club (1904) 52 WR 554 …. [1.7] Kellow-Falkiner Motors Pty Ltd v Nimorakiotakis (2000) V ConvR ¶54-620 …. [1.15], [2.15], [2.16] Kelmea Pty Ltd v State Rail Authority of NSW (1986 unreported) …. [11.6] Kemnal and Stills Contract, Re [1923] 1 Ch 293 …. [5.18] Kemp v Lumeah Investments Pty Ltd (1983) NSW ConvR ¶55-162 …. [18.4] — v Palmer (1899) 20 LR (NSW) Eq 129 …. [20.14] Kenilworth Industrial Sites Ltd v E C Little & Co Ltd [1975] …. [11.6] Kennedy v Miller (1867) 4 WW & a’B (L) 255 …. [20.30] — v Vercoe (1960) 105 CLR 521 …. [4.1] Kennewell v Dye [1949] Ch 517 …. [14.1] Kenny v Preen [1963] 1 QB 499; [1962] 3 All ER 814 …. [8.4], [13.15], [26.12] Kent v Fittall [1906] 1 KB 60; [1904-7] All ER Rep Ext 1308 …. [3.4]

Keogh, Ex parte (1893) 9 WN (NSW) 207 …. [16.18] Kerr v Byde [1923] AC 16 …. [16.19] Kersey v Thomson [1947] NZLR 392 …. [10.6], [10.8] Ketsey’s case (1613) Cro Jac 320; 79 ER 274 …. 5.3 Kewley v Ball [1913] VLR 412 …. [1.6], [4.3], [4.10] Khatijabai Jiwa Hasham v Zenab D/O Chandu Nansi Widow and Executrix of Haji Gulam Hussein Harji [1960] AC 316; [1958] 3 All ER 719 …. [13.3] Khayat Investments Pty Ltd v Winston Holdings Pty Ltd (No 2) [2011] WASCA 196 …. [26.10] Khodr v Foo Quan Eng Holdings Pty Ltd (No 1) (2001) V ConvR ¶58-557 …. [23.12], [23.31], [23.36], [23.45], [23.57] — v Foo Quan Eng Holdings Pty Ltd (No 2) (2001) V ConvR ¶58-558 …. [23.12], [23.35] Khuu & Lee Pty Ltd v Corporation of the City of Adelaide (2011) 110 SASR 235 …. [27.7] Kiama Development Co Pty Ltd v Wilcox [1999] NSWSC 277 …. [18.2] Kickham v R (1882) 8 VLR (Eq) 1 …. [5.6] Kildrummy (Jersey) Ltd v Inland Revenue Commissioners [1990] STC 657 …. [1.2], [5.14] Kilkerrin investments Pty Ltd v Yiu Ying Mei Pty Ltd (2001) Q ConvR ¶54551 …. [6.5] Killick v Second Covent Garden Property Co [1973] 1 WLR 658 …. [15.14], [26.8] Kindful (Australia) Pty Ltd v Country Villa Holdings Pty Ltd [2006] NSWADT 224 …. [24.14] King v Bird [1909] 1 KB 837 …. [5.19] — v Earl Cadogan [1915] 3 KB 485 …. [24.5], [25.5], [26.4] — v Grimwood (1891) 17 VLR 253 …. [4.5] — v McIvor (1883) 4 LR (NSW) 43; 4 ALT 153 …. [1.10], [4.2]

King, Re [1907] 1 Ch 72 …. [5.18] King, Re [1963] 1 Ch 459; [1962] 2 All ER 66 …. [15.20] King (dec), Re [1963] Ch 459; [1963] 1 All ER 781 …. [10.1] King’s Motors (Oxford) Ltd v Lax [1970] 1 WLR 426 …. [11.8], [14.3] Kingsbury v Collins (1827) 130 ER 746 …. [10.4] Kingsley’s Chicken Pty Ltd v Queensland Investment Corp [2006] ACTCA 9 …. [4.1] — v — [2007] ACTSC 77 …. [28.9] Kinleyside v Irwin [1961] WAR 169 …. [2.17] Kinlyside v Thornton (1776) 2 Wm Bl 1111; 96 ER 657 …. [8.7] Kirby v Caruso [1976] Qd R 164 …. [10.4] Kirkwood Bros Ltd v O’Reilly [1947] NZLR 860 …. [10.10] Kirmani v Captain Cook Cruises Pty Ltd (1985) 59 ALJR 265 …. [10.1] — v — (No 2) (1985) 59 ALJR 480 …. [10.1] Kirsch v Auhl [1949] VLR 324 …. [1.9] Kirsner v Haan [1947] VLR 119 …. [20.10] Kisch v Hawes Bros Ltd [1935] Ch 102; [1934] All ER Rep 730 …. [5.19], [17.21] Kiwi Munchies Pty Ltd v Nikolitsis [2006] VCAT 929 …. [23.39], [23.40] KJRR Pty Ltd v Commissioner of State Revenue [1999] 2 VR 174 …. [1.3], [1.4], [3.3] KL Distributors Pty Ltd v Jacob [1949] Tas LR 123 …. [3.6] Kleinwort Benson Ltd v Lincoln City Council [1999] …. [11.3] Knight and Hubbard’s Underlease, Re [1923] 1 Ch 130 …. [15.2] Knight v Williams [1901] 1 Ch 256 …. [16.21] Knight’s Case (1588) 5 Co Rep 54b …. [1.12] Knockholt Pty Ltd v Graff [1975] Qd R 88 …. [7.4] Knowles’ Will Trusts, Re [1948] 1 All ER 866 …. [5.17] Kogarah Private Hospital Pty Ltd v Hoteliers (NSW) Pty Ltd (SC(NSW),

Brownie J, 28 October 1987, unreported) …. [11.1] Kohua Pty Ltd v Tai Ping Trading Pty Ltd (1985) 3 BPR 9705 …. [8.4] Konica Business Machines Australia Pty Ltd v Tizine Pty Ltd (1992) 26 NSWLR 687 …. [16.17], [16.18], [16.21], [16.28] Koompahtoo Local Aboriginal Community v Sanpine (2007) 233 CLR 115 …. [18.2] Koumoudouros and Marathon Realty Co Ltd, Re (1978) 89 DLR (3d) 551 …. [7.14] KPMG LLP v Network Rail Infrastructure Limited [2007] EWCA Civ 363 …. [6.8] Kratzmann (Toowong) Pty Ltd v Marjorie’s Investments Pty Ltd (1986) 67 ANZ ConvR 803 …. [14.8] Kreitmayer v Kennedy (1878) 4 VLR (L) 215 …. [10.6] Krell v Henry [1903] 2 KB 740 …. [3.1], [6.10] Kudeweh v T & J Kelleher Builders Pty Ltd [1990] VR 701 …. [23.57] Kumar v Dunning [1987] 2 All ER 801, [1987] 3 WLR 1167 …. [15.20] — v — [1989] 1 QB 193 …. [15.19], [15.20] Kumaragamage v Rallis [2001] NSWSC 466 …. [19.4] Kurc v Eyecare Pty Ltd [2004] VCAT 1139 …. [23.41] Kurrle v Heide (1898) 20 ALT 171 …. [20.3] Kushner v Law Society [1952] 1 KB 264 …. [1.6] Kwik ‘N’ Kleen Pty Ltd v Sears Wainwright Superannuation Pty Ltd [2009] WASAT 148 …. [26.2] Kyriacou v Manakis [2006] NSWSC 804 …. [10.5], [19.5] L E Stewart Investments Pty Ltd v F C & M Legge Building Contractors & Developers (2003) 11 BPR 21,053 …. [4.1], [6.8] L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 …. [6.6] Lace v Chantler [1944] 1 All ER 305; [1944] KB 368 …. [1.5], [1.12], [2.2], [23.64]

Ladbroke Hotels Ltd v Sandhu & Singh [1995] 2 EGLR 92; (1995) 2 EGLR 92; 72 P & CR 498 …. [10.8] Ladies Sanctuary Pty Ltd v Parramatta Property Investment Ltd (1997) 7 BPR 15,156 …. [15.16], [19.2], [19.4] Ladies’ Hosiery & Underwear Ltd v Parker [1930] 1 Ch 304; [1929] All ER Rep 667 …. [2.11] Ladup Ltd v Williams & Glynn’s Bank plc [1985] 1 WLR 851 …. [19.1] Laffer v Gillen (1927) 40 CLR 86; [1927] AC 886 …. [17.20], [19.2] Lagouvardis v Brett and Janet Cottee Pty Ltd (1994) 6 BPR 97,476 …. [16.28], [16.34], [16.35] Laidlaw v Rehill (1943) …. [11.3] Lakin v Mylecharane (1957) 57 SR (NSW) 33 …. [4.2] Lam Kee Ying Sdn Bhd v Lam Shes Tong [1975] AC 247; [1974] 3 All ER 137 …. [19.4] Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 …. [12.9] Lamb Kee Ying Sdn Bhd v Lamb Shes Tong [1975] …. [15.3] Lambert v Cole [1950] QWN 47 …. [14.8] — v Norris (1837) 2 M & W 333; 150 ER 784 …. [15.19] Lamont v Heron (1971) 126 CLR 239 …. [14.8] Lamson Store Service Co Ltd v Russell Wilkins & Sons Ltd (1906) 4 CLR 672 …. [13.4], [16.30] Land at Liss, Re [1971] Ch 986 …. [2.2] Land Reclamation Co Ltd v Basildon District Council [1979] 1 WLR 767 …. [1.4] Land Securities plc v Westminster City Council [1993] …. [11.8] Land Settlement Association v Carr [1944] 2 All ER 126; [1944] 1 KB 657 …. [2.2], [2.13], [20.2] Land v Clyne (1968) 92 WN (NSW) 134 …. [1.9] Landale v Menzies (1909) 9 CLR 89; 16 ALR 217 …. [1.3], [1.12], [2.8], [2.9], [2.19], [4.8]

Landsmiths Pty Ltd v Hall (1999) 9 BPR 17,057 …. [4.1] Lane v Capellari (1950) 68 WN (NSW) 1 …. [15.2] — v Dixon (1847) 3 CB 776; 136 ER 311 …. [16.30] — v Newdigate (1804) 10 Ves Jun 192; 32 ER 818 …. [10.13] Lang v Asemo Pty Ltd [1989] VR 773 …. [7.16], [15.20] Langley v Foster (1909) 10 SR (NSW) 54 …. [19.2], [19.4], [19.5] Langmore v Vines [1917] VLR 595 …. [11.1] Lanteri Nominees v Fishers Stores [2005] VSC 336; (2005) V ConvR ¶54708 …. [13.4], [13.13] Lapham v Orange City Council (No 2) [1968] 2 NSWR 668 …. [1.4] Lapin v Abigail (1930) 44 CLR 166 …. [6.8] Larking v Great Western (Nepean) Gravel Ltd (1940) 64 CLR 221; [1940] HCA 37 …. [13.12], [15.19], [17.18] Laserbem Pty Ltd v Gainsville Investments Pty Ltd [2004] …. [1.6], [4.3], [4.5] Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265 …. [1.15], [6.8] Latella v L J Hooker Ltd (1985) …. [12.12] Lathouras, Re Vendaros, Ex parte [1964–5] …. [11.2] Latif Al-Hakim v Monash University [1999] VSC 511 …. [23.61] Laundry Coin-Wash Leasing Nominees Pty Ltd v Karenlee Nominees Pty Ltd (2000) V ConvR ¶58-545 …. [23.43], [23.44], [23.47] Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 …. [1.6], [16.28], [16.30], [16.33], [16.34] Lav Pty Ltd v Routledge [1998] ANZ ConvR 34 …. [10.8] Lavender v Betts [1942] 2 All ER 72 …. [8.4], [13.15] Lavery v Pursell (1888) 39 Ch D 508 …. [4.9] Law Life Assurance Society plc v Bodfield Ltd [1987] …. [11.8] Lawson v Hartley-Brown (1995) 71 P & CR 242 …. [8.5], [13.15] Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 …. [14.1], [14.8]

Laythoarp v Bryant (1836) 2 Bing (NC) 735; 132 ER 283 …. [4.4] Lazar v Williamson (1886) 7 LR (NSW) 98 …. [10.7], [10.8] Lazarus Estates Ltd v Beasley [1956] 1 QB 702; 1 All ER 341 …. [20.20], [20.24] Lear v Blizzard [1983] 3 All ER 662 …. [11.8], [14.7] Leask v Farlmist Pty Ltd [1999] ANZ ConvR 566 …. [1.6], [2.15], [2.16], [2.19] — v Molina [1999]] NSWCA 14 …. [15.5], [15.16], [15.17], [15.18] Leda Commercial Properties Pty Ltd v DHK Retailers Pty Ltd (1992) 111 FLR 81 …. [1.15], [16.11], [16.18], [16.28], [16.30], [16.34], [17.7], [18.6], [19.2] Lee v Blakeney (1887) 8 LK (NSW) 141 …. [17.17] — v Close (1870) 10 SCR (NSW) 86 …. [15.20] — v Ferno Holdings Pty Ltd (1993) 33 NSWLR 404 …. [14.5], [14.6], [14.8] — v K Carter Ltd [1949] 1 KB 85 …. [26.8] Leek & Moorlands Building Society v Clark [1952] 2 QB 188; [1952] 2 All ER 492 …. [5.15], [16.16] Lee-Parker v Izzet [1971] 1 WLR 1688 …. [7.4] Lee v Lee’s Air Farming Ltd [1961] AC 12 …. [15.3] Leeward Securities Ltd v Lilyheath Properties Ltd (1984) 271 EG 279 …. [15.13] Legal & General Assurance Society Ltd v Expeditors International (UK) Ltd [2007] 2 P&CR 10 …. [8.1], [24.8], [25.7], [26.7], [27.6] Legal & General Life of Aust Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314; NSW ConvR ¶55-237 …. [11.20], [23.40] Legal and General Assurance (Pension Management) Ltd v Cheshire County Council [1984] …. [11.6] LEGFIN Pty Ltd v Anthony [2015] VCAT 986 …. [23.30] Leggott v Barrett (1880) 15 ChD 306 …. [4.1] Legione v Hateley (1983) 152 CLR 406 …. [3.8], [4.8], [16.34], [19.1]

Lehrer v Gandali [1970] 1 NSWR 9; 91 WN (NSW) 891 …. [19.5] Leichhardt Municipal Council v Daniel Callaghan Pty Ltd (1983) 46 LGRA 29 …. [25.2] Leigh v Dickeson (1884) 15 QBD 60; [1881–85] All ER Rep 1099 …. [5.15] Leighton’s Investment Trust Ltd v Cricklewood Property and Investment Trust Ltd [1943] KB 493; [1943] 2 All ER 580 …. [1.2], [6.10], [16.28] Leitz Leeholme Stud Pty Ltd v Robinson (1977) 2 NSWLR 544 …. [2.14], [4.1] Lemmerbell Ltd v Britannia LAS Direct [1998] 3 ELGR 67 …. [20.9] Lemon v Lardeur [1946] KB 613; [1946] 2 All ER 329 …. [2.13], [20.5], [20.9] Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 …. [8.2], [8.3], [8.5], [13.15] Lend Lease Financial Planning Ltd v Southcap Pty Ltd (CA(Qld), 2 June 1998, unreported) …. [4.1], [4.2], [7.16] Lep Air Services v Rolloswin Ltd [1973] AC 331 …. [16.30] Lepla v Rogers [1893] 1 QB 31 …. [13.16] Leppard v Excess Insurance Co Ltd [1979] 1 WLR 512 …. [13.17] Leprina Appointments Pty Ltd v State Authorities Superannuation Board (1990) 5 BPR 97,332 …. [6.5] Leschallas v Woy [1908] 1 Ch 641 …. [10.5] Lester v Ridd [1990] 2 QB 430 …. [15.19] Leung v Hungry Jack’s Pty Ltd (2000) V Conv R ¶54-614 …. [23.21] Lever v Koffler [1901] 1 Ch 543 …. [4.8] Levitt v Illawarra Seafood Pty Ltd (No 2) [1983] 3 BPR 97165 …. [14.10] Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136 …. [12.9] Lewis Construction (Engineering) Pty Ltd v Southern Electric Authority of Queensland (1976) 50 ALJR 769; 11 ALR 305 …. [6.4] Lewis v American and Colonial Distributors Ltd [1945] 1 Ch 225; 1 All ER 592 …. [12.3], [15.19]

— v Bell (1985) 1 NSWLR 731 …. [1.3], [1.4], [3.3], [3.4], [3.8], [16.2] — v Bentley [1977] 1 NSWLR 743 …. [14.6] — v Keene (1936) 36 SR (NSW) 493; 53 WN (NSW) 17 …. [16.9] — v Stephenson (1898) 78 LT 165; 67 LJQB 296 …. [14.3], [14.5] Lewy v Moss Nominees Pty Ltd [1997] …. [11.3] Lex Services PLC v Oriel House BV [1991] …. [11.9] Lezam Pty Ltd v Seabridge Australia Pty Ltd …. [24.2] LG Thorne & Co Pty Ltd v Thomas Borthwick & Sons (Australasia) Ltd (1956) 73 WN (NSW) 9; [1956] SR (NSW) 81 …. [6.4] Liangis Investments Pty Ltd v Dalypyn Pty Ltd (1994) 117 FLR 28; [1994] ANZ ConvR 637 …. [7.4], [11.3] — v Ipex Itg Pty Ltd [2004] ACTSC 8 …. [28.2] — v — [2005] ACTCA 2 …. [13.17] Liberty Investments Pty Ltd v Sakatik Pty Ltd (CA(NSW), 30 August 1996, unreported) …. [6.10] Liddle v Cunningham (1874) 5 AJR 120 …. [13.15] Liddy v Kennedy (1871) LR 5 HL 134 …. [17.7] Lidsdale Nominees Pty Ltd v Elkharadly [1979] VR 84 …. [17.12], [17.18] Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 …. [6.6] Lin Creations Pty Ltd v Springvale Property Holdings Pty Ltd (2000) V ConvR ¶54-627; [2000] VSC 24 …. [23.36] Lin v State Rail Authority of NSW [2006] FCAFC 42 …. [24.2] Linfield Linen Pty Ltd v Nejain (1951) 68 WN (NSW) 163 …. [13.5] Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] …. [6.4] Liquidation Estates Purchase Co v Willoughby [1896] 1 Ch 726 …. [16.8] Lismore City Council v Green Gro Pty Ltd (2003) 56 NSWLR 204 …. [10.8] Lister v Lane and Nesham [1893] 2 QB 212; [1891–4] All ER Rep 388 …. [10.8] Liverpool Borough Bank v Turner (1860) 2 De GF and J 502 …. [6.9]

Liverpool City Council v Irwin [1976] QB 319 …. [8.1], [10.1] — v — [1977] AC 239; [1976] 2 All ER 39 …. [8.1], [10.1], [24.8], [25.7], [26.7], [27.6] Lloyd v Rosbee (1810) 2 Camp 453; 170 ER 1216 …. [17.17] Lo Giudice v Biviano (No 1) [1962] VR 412 …. [14.9], [14.10], [17.7], [17.14] — v Biviano (No 2) [1962] VR 420 …. [14.9], [14.10], [17.12], [17.18], [19.2], [19.4] Lobb v Vasey Housing Auxiliary (War Widows Guild) [1963] VR 239 …. [1.2], [6.10], [16.27] Lobendhan v West Perth Investments Pty Ltd [1998] FCA 1257 …. [12.12] Lock v Pearce [1893] 2 Ch 271 …. [18.7], [19.4] Lockhart v Yorkshire Guarantee and Securities Corp (1908) 9 WLR 182 …. [14.8] Loder v Tokoly (1952) SR (NSW) 283 …. [11.1], [11.2] Lofft v Dennis (1859) 1 E & E 474; 120 ER 987 …. [10.1] Logan City Shopping Centre Pty Ltd v Retail Shop Leases Tribunal [2006] QSC 172 …. [25.13] Lolly Pops (Harbourside) Pty Ltd v Werncog Pty Ltd (1998) 9 BPR 16; [1999] ANZ ConvR 360; (1998) NSW ConvR ¶55-861 …. [12.14], [13.6], [13.15], [14.8], [14.10] Lombard Tricity Finance Ltd v Paton (1989) 1 All ER 918 …. [4.8] London and Associated Investment Trust plc v Calow [1986] 2 EGLR 80 …. [3.2] London & County (A & D) Ltd v Greenwoods (Hosiers & Outfitters) Ltd [1969] 1 WLR 1215 …. [17.9], [17.10] — v Wilfred Sportsman Ltd [1971] Ch 764 …. [1.9], [1.10], [15.20], [16.11], [17.10], [17.17], [17.18] London & Manchester Assurance Co Ltd v G A Dunn & Co (1982) …. [11.6] London and North Western Railway Co v McMichael (1850) 5 Ex 114; 155 ER 374 …. [5.3]

London and Northern Estates Co v Schlesinger [1916] 1 KB 20, [1914–15] All ER Rep 593 …. [1.2], [3.2], [5.2], [6.10] London and Overseas Freighters Ltd v Timber Shipping Co SA [1972] AC 1 …. [6.5] London Bridge Buildings Co v Thomson (1903) 89 LT 50 …. [19.6] London Corporation v Mitford (1807) 14 Ves 41; 33 ER 43 …. [14.11] London County Council v Agricultural Food Products Ltd [1955] 2 QB 218; 2 All ER 229 …. [20.9] Lonergan v M’Arthur (1874) 5 AJR 172 …. [14.8] Long Leys Co Pty Ltd v Silkdale Pty Ltd (1991) 5 BPR 11,512 …. [14.8] Long v Fairbank (1947) 64 WN (NSW) 205 …. [20.30] — v Piper (2002) NSW ConvR ¶56-000 …. [4.1] — v Tower Hamlets London Borough Council [1998] Ch 197 …. [1.6], [4.3] Longrigg, Burrough and Trounson v Smith [1979] 2 EGLR 42 …. [2.9], [16.2] Lonsdale & Thompson Ltd v Black Arrow Group plc [1993] Ch 361 …. [10.1] Lord Inchiquin v Lyons (1887) 20 LR Ir 474 …. [20.33] Lord v Procter [1923] ALR 350 …. [15.15] — v Still [1962] NSWR 363; 79 WN (NSW) 579 …. [16.18], [16.19] Loria v Hammer [1989] 2 EGLR 249 …. [10.6] Louinder v Leis (1982) 149 CLR 509; 41 ALR 187; NSW ConvR ¶55-065 …. [11.6], [16.33], [23.54] Louis Dreyfus & Cie v Parnaso Cie Naviera SA [1959] 1 QB 498 …. [6.5] Love v Bloomfield [1906] VLR 723 …. [10.5] — v Chryssoulis (1977) 16 ACTR 1 …. [11.3], [20.5], [20.9], [20.14] — v Gemma Nominees Pty Ltd (1983) ANZ ConvR 68 …. [19.5] — v Pears (1810) 104 ER 297 …. [7.2] Lovelock v Margo [1963] 2 QB 786; 2 All ER 13 …. [19.2] Lovett, Re [1966] VR 65 …. [5.17]

Low v Adams (1901) 2 Ch 598 …. [2.8] — v Bouverie [1891] 3 Ch 82 …. [2.16] Lowe v Ellbogen [1959] NZLR 1103 …. [10.13] — v Ross (1850) …. [11.28] Lowe & Sze Tu Holdings Pty Ltd v Cudal Nominees Pty Ltd (1991) ATPR (Digest) ¶46–074 …. [12.9] Lowenthal v Vanhoute [1947] KB 342 …. [20.30] Lower v Sorrell [1963] 1 QB 959; [1962] 3 All ER 1074 …. [20.30], [20.33] Luchio Nominees Pty Ltd v Epping Fresh Food Market Pty Ltd [2016] VCAT 937 …. [23.59] Lurcott v Wakely and Wheeler [1911–13] All ER Rep 41; [1911] 1 KB 905 …. [10.8] Luxmore v Robson (1818) 1 B & Ald 584 …. [10.8] Lymarn Holdings Pty Ltd v M and W Holdings Pty Ltd (SC(WA), Anderson J, 9 May 1996, unreported) …. [7.4], [10.1] Lyndon v Coventry Motors Retailers Pty Ltd (1975) 11 SASR 308 …. [12.9] Lyon v Reed (1844) 13 M & W 285; 153 ER 118; [1843–60] All ER Rep 178 …. [16.17] Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) …. [12.9] — v Lyons [1967] VR 169 …. [5.15] M’Bean v Brown (1887) 13 VLR 726 …. [4.6], [4.9] M’Donnell v Pope (1852) 9 Hare 705; 68 ER 697 …. [16.19] Macaura v Northern Assurance Co Ltd [1925] AC 619 …. [15.3] MacDonald v Robins (1954) 90 CLR 515; [1954] ALR 153 …. [7.12], [14.6], [14.8], [15.16] Macindoe v Wehrle (1913) 13 SR (NSW) 500 …. [7.12], [15.16] MacIntosh v Bebarfalds Ltd (1922) 22 SR (NSW) 37 …. [13.11], [17.4] Mackay v Blackston (1906) 6 SR (NSW) 248 …. [13.17] — v Wilson (1947) 47 SR (NSW) 315 …. [14.4]

Mackett v Shields (1894) 16 ALT 38 …. [3.9] Mackusick v Carmichael [1917] 2 KB 581 …. [15.2] Mackay v Dick (1881) 6 App Cas 251 …. [6.9] Macky v Cafe Monico [1906] 25 NZLR 689 …. [5.12], [16.28] Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (2010) 15 BPR 28,563; [2010] NSWCA 268 …. [16.35], [18.2], [18.6] Macrocom Pty Ltd v City West Centre Pty Ltd (2001) 10 BPR 18,631 …. [10.5] Maddison v Alderson (1883) 8 App Cas 467; [1881–85] All ER Rep 742 …. [4.5] Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 201 CLR 181 …. [6.4] Mahmoud and Ispahani, Re [1921] 2 KB 716 …. [24.19], [25.15], [27.17] Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR 113 …. [6.5] Majala Pty Ltd v Ellas [1949] VLR 104 …. [17.12], [17.18] Majestic Homes Pty Ltd v Wise [1978] Qd R 225 …. [6.8] Major v Joseph [1949] ALR (CN) No 9 1056 …. [15.9] Majorie Burnett Ltd v Barclay (1980) 258 EG 642 …. [14.2] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 …. [10.13] Malagara Pty Ltd v Mabrouk Pty Ltd (SC(NSW), Hulme J, 24 June 1998, unreported) …. [13.15] Maley v Fearn [1947] LJR 276; 176 LT 203; [1946] 2 All ER 583 …. [17.1], [17.5], [17.6] Mallen, Re [1929] SASR 154 …. [5.17] Malmsbury Confluence Gold Mining Co Ltd v Tucker (1877) 3 VLR (L) 213 …. [15.19] Malpas v Ackland (1827) 3 Russ 273; 38 ER 578 …. [5.17] Malzy v Eichholz [1916] 2 KB 308 …. [8.4] Mancetter Developments Ltd v Garmanson Ltd and Another [1986] QB 1212 …. [10.3], [10.5]

Manchester Bonded Warehouse Co Ltd v Carr (1880) …. [8.6] Manchester Brewery Co v Coombs [1901] 2 Ch D 608 …. [1.6], [4.8], [15.19] Manchester Ship Canal Co v Manchester Racecourse Co [1901] 2 Ch 37 …. [14.4] Manchester, Sheffield & Lincolnshire Railway Co v Anderson [1898] …. [8.4] Manfield & Sons Ltd v Botchin [1970] 2 QB 612; 3 All ER 143 …. [2.15] Mangles v Dixon (1852) 3 HL Cas 702 …. [7.4] Maniero Pty Ltd v El Barador Holdings Pty Ltd (1982) …. [12.9] Manly Council v Malouf [2004] NSWCA 299 …. [24.2] Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd (1995) 1 WLR 1508 …. [20.20] — v — [1997] AC 749; [1997] 2 WLR 945 …. [11.8], [11.9], [14.8], [16.7], [20.17] Manorlike Ltd v Le Vitas Travel Agency and Consultancy Services Ltd [1986] 1 EGLR 79 …. [20.21] Mansfield v Relf [1908] 1 KB 71 …. [7.16] Manufacturers’ Mutual Insurance Ltd v Withers (1988) …. [6.4] Maori Trustee v Bolton [1971] NZLR 226 …. [10.13], [17.12] — v Prentice [1992] 3 NZLR 344 …. [6.10] — v Rogross Farm Ltd [1994] 3 NZLR 410 …. [10.13] Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 …. [6.8] Marana Holdings Pty Ltd v Commissioner of Taxation (2004) 141 FCR 299; [2004] FCAFC 307 …. [23.23] Marcellos, Re (1940) 41 SR (NSW) 154 …. [5.15] Maridakis v Kouvaris (1975) 5 ALR 197 …. [11.17], [16.21] Maritime Services Board of NSW v Australian Shipping Commission (1991) …. [11.6] Mark Mayne Pty Ltd v Suburban Centres Pty Ltd [1976] 2 NSWLR 67 …. [14.3]

Mark Rowlands Ltd v Berni Inns Ltd [1986] QB 211 …. [8.7], [10.1], [10.8], [10.12] Market Ring Write Services Pty Ltd v Dudson [2013] VCAT 546 …. [23.45] Markets Ltd v Green [1947] 2 All ER 140 …. [2.11] Markham v Paget [1908] 1 Ch 697 …. [8.4], [26.12], [26.13] Marlborough Park Services v Rowe [2006] 23 EG 166 …. [10.8] Marles v Philip Trant and Sons Ltd [1954] 1 QB 29 …. [6.9] Marlow Rolls Theatres Ltd, Re; Empire Theatres Ltd, Ex parte (1934) 51 WN (NSW) 193 …. [16.17], [16.18] Marquette v Doherty [2002] NSWSC 580 …. [2.4] Marsden v Edward Heyes Ltd [1927] 2 KB 1; [1926] All ER Rep 329 …. [8.7], [10.3] Marsh v Gilbert [1980] 2 EGLR 44 …. [7.12] Marsha Nominees Pty Ltd v Mobil Oil Australia Pty Ltd [2006] VSC 15 …. [4.2] Marshall v Burman (No 2) [1961] VR 161 …. [2.11], [20.9], [20.14], [20.22] — v Commonwealth Hostels Ltd [1953] VR 503 …. [3.6], [3.8] — v Council of The Shire of Snowy River (1994) 7 BPR 14,447 …. [16.35], [18.2] — v Coupon Furnishing Co (1916) SR (Q) 120 …. [2.8] — v Mackintosh (1898) 78 LT 750 …. [13.4], [16.32] — v Rubypoint Ltd [1997] 1 EGLR 69 …. [10.13] — v Snowy River Council (1994) 6 BPR 97,483 …. [4.8], [14.6], [16.28] Martin v Coultas (1911) SALR l …. [7.12], [15.16] — v Elsasser (1878) 4 VLR (L) 481 …. [2.19], [15.4], [15.5] — v Individual Homes Pty Ltd (FCA, Full Court, 18 May 2000, unreported) …. [2.19] — v King (1996) 7 BPR 14,681 …. [16.36] — v Smith (1874) LR 9 Ex 50; [1874] 80 All ER Rep Ext 1903 …. [1.6] Martinali v Ramuz [1953] 1 WLR 1196 …. [2.19]

Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15 …. [8.4], [10.1], [13.15] Martyn v Clue (1852) 18 QB 661 …. [15.19] Mascherpa v Direck Ltd [1960] 1 WLR 447 …. [19.4] Masha Nominees Pty Ltd v Mobil Oil Australia Pty Ltd [2006] Aust Contract R ¶90-237; [2006] VSC 15 …. [10.13] Mason v Stevens (1943) 60 WN (NSW) 70 …. [4.10] Massart v Blight (1951) 82 CLR 423; [1951] ALR 401 …. [15.5], [15.16], [17.4], [24.18], [26.8] Masters v Cameron (1954) 91 CLR 353 …. [1.15], [4.1], [4.8] — v — (1998) …. [1.15] Matthews v Smallwood [1910]; [1908–10] All ER Rep 536 …. [16.30], [19.6] Matthey v Curling [1922] 2 AC 180 …. [1.2], [6.10] Matthias v Scott [2000] …. [11.3] Maud v Sandars [1943] 2 All ER 783 …. [10.13] Maxwell v Ward (1822) 11 Price 3; 147 ER 382; (1824) 13 Price 674; 148 ER 192 …. [14.11] May and Butcher Ltd v The King (1934) 2 KB 17 …. [4.8] May Bros Ltd, Re [1929] SASR 508 …. [10.5] Maybury v Atlantic Union Oil Co Ltd (1953) 89 CLR 507 …. [6.11] Mayer v Southey (1892) 8 TLR 395 …. [13.4] Mayfield Holdings Ltd v Moana Reef Ltd [1973] 1 NZLR 309 …. [3.8] Mayho v Buckhurst (1617) Cro Jac 438; 79 ER 374 …. [15.19] Mayne Nickless Ltd v Solomon [1980] …. [11.20] Mayor of Bendigo v Burke [1917] VLR 531 …. [5.7] MCA International BV v Northern Star Holdings Ltd (1991) 4 ACSR 719 …. [6.5] McArthur v Stern (1986) 5 NSWLR 538 …. [3.8] McAuley v Bristol City Council [1992] QB 134 …. [8.1], [10.1] McBride v Sandland (1918) 25 CLR 69; 25 ALR 54 …. [4.5], [6.2]

McCafferty, Re [1994] …. [11.8] McCallum v McVean (1872) NSWR 739; 78 WN (NSW) 603 …. [17.7], [17.10] McCalman v Higgins [1960] …. [5.13] McCann v Annett [1948] NZLR 116 …. [3.5], [3.8] — v Switzerland Insurance Australia Pty Ltd (2000) 203 CLR 579 …. [6.4] McCarrick v Liverpool Corporation [1927] AC 219 …. [10.6] McCombe v Smith (1950) 52 WALR 12 …. [3.3] McDonald Multiple Pty Ltd v Presto Smallgoods (NSW) Pty Ltd [1978] 1 NSWLR 337 …. [21.2] McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 …. [16.32] — v Jane [1960] VR 184 …. [16.15], [16.18], [16.34] McDrury v Luporini [2000] ANZ ConvR 568 …. [17.18] McEacharn v Colton [1902] AC 104 …. [12.3], [15.5], [15.16], [15.19] McFadden v Snow (1951) 69 WN (NSW) 8 …. [16.18] McFadyen v Measures (1910) 10 SR (NSW) 190 …. [18.4] McGarrity v Condy (1927) 27 SR (NSW) 217 …. [9.1] McGirr v Warman [1968] …. [11.2] McGowan v Smith (1886) 12 VLR 244 …. [17.18] McGrath, Ex parte; Re Coyle (1943) 60 WN (NSW) 145 …. [20.13] McGreal v Wake (1984) 13 HLR 107; [1984] 1 EGLR 42 …. [10.13] McGregor Motors Ltd v Barton [1956] NZLR 297 …. [14.6] McGregor v Henry [2006] NSWSC 368 …. [19.5] McIntosh v Dylcote Pty Ltd (1999) 9 BPR 16,805 …. [16.7] McKendrick & Co Pty Ltd v Fush [2001] VSC 95 …. [12.9] McKenzie v McAllum [1951] …. [15.13] — v — [1956] VLR 208 …. [15.12], [15.13] McKinnon v Kirdy [2003] QSC 302 …. [10.6] — v Portelli (1960) 77 WN (NSW) 49; SR (NSW) 343 …. [17.9], [17.10],

[17.12], [18.4], [22.3] McLean v Grace [1953] NZLR 566 …. [16.34] McMahon v Ambrose [1987] VR 817 …. [3.8], [4.8], [15.17], [15.21], [16.13], [17.16] — v Docker (1945) 62 WN (NSW) 155 …. [15.8] — v Swan [1924] VLR 397 …. [14.5] McMahon’s (Transport) Pty Ltd v Ebbage [1999] 1 Qd R 185 …. [10.5] McMillan v Lowry (SC(Vic), December 1954 unreported) …. [5.15] McPhail v Persons, Names Unknown [1973] Ch 447 …. [3.9], [21.3] McPherson v Lawless [1960] VR 363 …. [20.2] McVicar v Jackson (1958) 75 WN (NSW) 146 …. [17.12] McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 …. [12.9] Meadfield Properties Ltd v Secretary of State for the Environment [1995] 1 EGLR 39 …. [20.2] Meadows v Clerical, Medical and General Life Assurance Society [1981] Ch 70 …. [19.5] Measures v McFadyen (1910) 11 CLR 723 …. [6.8], [15.19] Mecca Leisure Ltd v Renown investments (Holdings) Ltd (1984) …. [11.6] Medina v Stoughton [1699] Salk 210; 1 Ld Raym 593 …. [6.11] Meehan v Jones (1982) …. [4.2] Meek v Bennie [1940] NZLR 1 …. [5.17] Mega Byte Baby Pty Ltd v WJH Pty Ltd [2005] VCAT 1391 …. [23.61], [23.63] Megaloconomos v MGM Ltd (1953) 54 SR (NSW) 275 …. [3.8] Mehevi Pty Ltd v Stromboli Pty Ltd [2005] NSWADT 29 …. [24.2] MEK Nominees Pty Ltd v Billboard Entertainments Pty Ltd (1993) V ConvR ¶54-468 …. [7.4] Melbourne Pathology Pty Ltd v Health Insurance Commission Pty Ltd (1997) 72 FCR 513 …. [1.3]

Melksham v Archerfield Airport Corporaion [2004] ANZ ConvR 363 …. [19.1], [19.5] Melles & Co v Holme [1918–19] All ER Rep 271; [1918] 2 KB 100 …. [10.6] Mellows v Low [1923] 1 KB 522; [1923] All ER Rep 537 …. [2.21] Mellows v May (1601) Cro Eliz 874; 78 ER 1099 …. [16.21] Melluish v B.M.I. (No 3) Ltd [1996] AC 54 …. [10.5] Melville v Grapelodge Developments Ltd [1980] 1 EGLR 42 …. [7.4] Melzak v Lilienfeld [1926] Ch 480; [1926] All ER Rep 404 …. [9.1] MEP Australia Ltd v Commonwealth [1973] 2 NSWLR 848 …. [14.7] Mercantile Investments Ltd v Australian Optical Co Ltd [1945] SASR 129 …. [7.14] Merdigate Nominees Pty Ltd v Fetterplace (1998 unreported) …. [11.16] Mersey Steel and Iron Co v Naylor, Benzon and Co (1884) 9 App Cas 434 …. [16.29] — v — (1884) J Bridg 16; 123 ER 1167 …. [16.29] MESATA Pty Ltd v Rastogi [2007] VCAT 1242 …. [23.54] Meskin v Hickford (1624) J Bridg 16; 123 ER 1167 …. [1.5] Messenger, Re (1960) 77 WN (NSW) 114 …. [15.2] Mestros v Blackwell (1974) 8 SASR 323 …. [14.3] Metal Fabrications (Vic) Pty Ltd v Kelcey [1986] VR 507 …. [16.30] Metford Industries Ltd; Ex parte, Re Hall, Commissioner for Railways (NSW) [1962] NSWR 1228 …. [14.8] Metha v Royal Bank of Scotland plc (1999) Times 53 (25 January 1999) …. [1.3] Metrolands Investments Ltd v J H Dewhurst Ltd [1986] …. [11.6] Metropolitan Fire Brigades Board v Tait [1949] VLR 231 …. [3.5] Metropolitan Gas Co v Federated Gas Employees’ Industrial Union, The (1925) 35 CLR 449 …. [6.4] Metropolitan Permanent Building & Investment Society, Re (1881) 7 VLR

(Eq) 87 …. [5.8] Metropolitan Properties Co Ltd v Cordery [1979] 2 EGLR 78 …. [15.16] Metropolitan Trade Finance Co Pty Ltd v Coumbis (1973) 2 ALR 258 …. [16.3], [20.8] Meux v Jacobs (1875) LR 7 HL 481 …. [10.5] MFI Properties Ltd v BICC Group Pension Trust Ltd [1986] 1 All ER 974 …. [14.3] MI Design Pty Ltd v Dunecar Pty Ltd [2000] 1 KB 16 …. [19.4] Miwa Pty Ltd v Siantan Properties Pty Ltd (2011) 15 BPR 29,545 …. [6.8] Michael v Phillips [1924] …. [16.19] Middlegate Properties Ltd v Gidlow-Jackson (1977) 34 P & CR 4 …. [10.13] Midland Railway Co’s Agreement, Re [1970] 1 Ch 568 …. [2.13], [20.2] Midland Railway Co’s Agreement, Re; Charles Clay & Sons Ltd v British Railways Board [1971] Ch 725; [1971] 2 WLR 625 …. [2.13], [20.2] Mikaelian v Commonwealth Scientific & Industrial Research Organisation (1999) 163 ALR 172; [1999] FCA 610 …. [12.9], [14.4] Milchas Investments Pty Ltd v Larkin (1989) 96 FLR 464 …. [1.15] — v — (1989) ATPR 50,431 …. [1.15] Miller v Emcer Product Ltd [1956] Ch 304; [1956] 1 All ER 237 …. [8.3], [10.1], [23.55], [26.9] — v Sharp [1899] 1 Ch 622 …. [14.8] Mills v Cannon Brewery Co Ltd [1920] 2 Ch 38 …. [15.11], [15.13] — v Dunham [1891] …. [6.4] — v Griffiths (1876) 45 LJQB 771 …. [7.7], [17.18] — v Heuston (1909) 9 SR (NSW) 469 …. [13.17] Milmo v Carreras [1946] KB 306 …. [15.1], [15.2], [15.18] Milne v Lahz (1951) 52 SR (NSW) 30 …. [15.2], [15.17], [16.13], [16.14] Milnes v Gery (1807) 14 Ves 400; 33 ER 574 …. [14.7] Milos Nominees Pty Ltd v F J and M J Parker Pty Ltd (1981) 2 BPR 9248 …. [14.6]

Mineaplenty Pty Ltd v Trek31 Pty Ltd [2006] NSWSC 1203 …. [19.4] Mining Co Ltd v Federal Commissioner of Taxation (1981) 35 ALR 335 …. [1.4] Minister for Lands and Forests v McPherson (1990) 22 NSWLR 687 …. [19.1], [19.4] Minister for the Army v Dalziel (1944) 68 CLR 261 …. [6.10] Minister for Transport v Edgar Enterprises Pty Ltd [2006] WASC 27 …. [26.6] Minister of Health v Bellotti [1944] 1 All ER 238; [1944] KB 298 …. [3.8], [16.36] Minister of State for the Army v Dalziel (1944) 68 CLR 261; [1944] ALR 89 …. [1.4], [1.13], [2.19], [3.1], [3.2], [6.10], [15.18], [26.8] Minister of State for the Interior v RT Co Pty Ltd (1963) 107 CLR 1; [1963] ALR 57 …. [17.12], [17.17] Minister v Mathieson (1903) …. [11.28] Minja Properties Ltd v Cussins Property Group plc [1998] 2 EGLR 52 …. [10.7], [10.8] Mint v Good [1950] 2 All ER 1159; [1951] 1 KB 517 …. [10.1] Mira v Aylmer Square Investments (1989) 21 HLR 284 …. [13.15] — v — [1990] 1 EGLR 45 …. [13.15] Misiaris v AFC Holdings Pty Ltd (1988) 15 NSWLR 231 …. [1.6], [5.8], [5.16], [14.1], [15.9] Misner v Australian Capital Territory (2000) ACTR 1 …. [6.8] Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 …. [12.9] Mitas v Hyams (1951) …. [11.21] Mitchell v Catlin [1948] VLR 367 …. [15.2] — v Cummings [1947] VLR 315 …. [16.2], [20.31], [20.32] — v Ealing London Borough Council [1979] QB 1 …. [16.36] — v Hore (1927) 27 SR (NSW) 433 …. [10.10]

— v Wieriks (1975) 49 ALJR 8 …. [20.3] Mitchison v Thomson (1883) 1 Cab & E 72 …. [19.4] Mittagong Shire Council v Mittagong Anthracite Coal Co Ltd (1957) 3 LGRA 290 …. [3.6] MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39 …. [1.15] Moat v Martin [1950] 1 KB 175; [1949] 2 All ER 646 …. [15.8] Mobil Oil Australia Ltd v Kosta [1970] ALR 253; 14 FLR 343 …. [6.5], [14.10] — v Wellcome International Pty Ltd (1998) 81 FCR 475 …. [1.15] Mockbell v Hughes (1909) 9 SR (NSW) 304 …. [8.4] Molina v Leask [1998] ANZ ConvR 361 …. [15.5], [15.16], [15.17], [15.18] Monaco Willows Pty Ltd v Greenbox Pty Ltd (1996) ATPR 41-527 …. [12.9] Monk v Noyes (1824) 1 C & P 265; 171 ER 1189 …. [10.10] Montague v Browning [1954] 1 WLR 1039 …. [11.1], [11.2] Monters Pty Ltd, Ex parte; Re Webster [1960] NSWR 521; [1961] SR (NSW) 354 …. [2.2], [2.4] Montross Associated Investments SA v Moussaieff [1992] 1 EGLR 55 …. [7.8], [23.18] Moore & Hulm’s Contract, Re [1912] 2 Ch 105 …. [1.9] Moore & Scroope v State of Western Australia (1907) 5 CLR 326 …. [8.1], [8.4] Moore v Callus [1971] QWN 26 …. [17.18], [20.30], [20.32] — v Dimond (1929) 43 CLR 105; [1930] ALR 341 …. [1.6], [1.12], [2.1], [2.7], [2.8], [2.11], [2.15], [4.8] — v — [1930] …. [2.11] — v Ullcoats Mining Co Ltd [1908] 1 Ch 575 …. [17.9], [17.10], [17.11], [17.12] Moorgate Mercantile Co Ltd v Twitching’s [1976] QB 225 …. [1.15]

Moratic Pty Ltd v Gordon (2007) NSW ConvR ¶56-172; [2007] NSWSC 5 …. [4.1], [6.7] Morcom v Campbell-Johnson [1956] 1 QB 106; [1955] 3 All ER 264 …. [10.8] Moreton Club, The v Commonwealth (1948) …. [11.8] Morgan v Liverpool Corporation [1927] 2 KB 131 …. [10.6], [23.54] — v Milman (1853) 3 De GM & G 24; 43 ER 10 …. [14.7] — v Savage (1872) 3 ALJR 53 …. [14.1] Moriarty, Ex parte (1924) 24 SR (NSW) 298 …. [20.9] Morison v Edmiston (1907) VLR 191; 26 ALT 148 …. [1.5], [2.2], [2.8] — v Hall [1923] VLR 93 …. [11.28], [15.5], [15.16], [24.18], [26.8] Mornane v All Red Carrying Co Pty Ltd [1935] VLR 341 …. [20.3], [20.5] Morrison Holdings Ltd v Manders Property (Wolverhampton) Ltd [1976] 2 All ER 205; [1976] 1 WLR 533 …. [16.18] Morrison v Jacobs [1945] KB 577 …. [2.12] Morris-Thomas v Petticoat Lane Rentals Ltd (1986) 53 P & CR 238 …. [3.1] Morrow v Nadeem [1986] 1 WLR 1381 …. [18.6] Mortal v Lyons (1858) 8 1 Ch R 112 …. [4.6] Morton v Hampson [1962] VR 364 …. [23.40] Moschi v Lep Air Services Ltd [1973] AC 331 …. [16.32] Mosely v Virgin (1796) 3 Ves Jun 184; 30 ER 959 …. [10.13] Mosman Municipal Council v Shaw (1928) 11 LGR (NSW) 150 …. [10.8] Moss v Barton (1866) 55 ER 870 …. [14.9] — v Gallimore (1779) 1 Dougl 279; 99 ER 182 …. [15.20] — v Glebe Municipal Council (1947) 48 SR (NSW) 208 …. [3.6] Moss’ Empires Ltd v Olympia (Liverpool) Ltd [1939] AC 544; [1938] 3 All ER 166 …. [10.13], [15.19] Moteks Pty Ltd v Matthews Pastoral Co Pty Ltd (1998 unreported) …. [7.8] Motor Works Ltd v Westminster Auto Services Ltd [1997] 1 NZLR 762 …. [14.4]

Mottram Consultants Ltd v Bernard Sunley & Sons Ltd [1975] 2 Lloyd’s Reports 197 …. [6.5] Moule v Garrett (1872) …. [15.21] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 …. [6.5] Mount Charlotte Investments Ltd v Leek and Westbourne Building Society (1975) …. [11.6] Mount Cook National Park Board v Mount Cook Motels Ltd [1972] NZLR 481 …. [8.5] Mowan v Wandsworth London Borough Council [2001] BLGR 228 …. [8.4] Mowats Ltd v Hudson Bros Ltd (1911) 105 LT 400 …. [10.5] Moweno Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376 …. [23.12], [24.2] — v — [2004] ANZ ConvR 230; [2003] NSWCA 376 …. [23.12], [23.18] Muirs v Morrison [1980] VR 83 …. [6.9] Mulcahy v Brown (1947) 64 WN (NSW) 39 …. [20.15] — v Hoyne (1925) 36 CLR 41 …. [7.7], [17.18] Mulholland’s Will Trusts, Re [1949] 1 All ER 460 …. [14.1] Muller v Trafford [1901] 1 Ch 54 …. [14.1], [15.20] Mumford Hotels Ltd v Wheler [1964] Ch 117; [1963] 3 All ER 250 …. [10.1] Munday v Prowse (1878) 4 VLR (Eq) 101 …. [13.11] Munro v Dare [1934] St R Qd 332 …. [2.13] Murphy, Ex parte (1856) 2 Legge (NSW) 976 …. [2.8] Murphy v Harris [1924] QSR 187 …. [15.21] — v Hurly [1922] 1 AC 369; [1922] All ER Rep 169 …. [10.6] — v Overton Investments Pty Ltd (2004) 216 CLR 388; 204 ALR 26; [2004] HCA 3 …. [12.9], [23.39], [23.55] — v Simpson [1957] VR 598 …. [5.18], [6.2] — v Victoria (2014) 45 VR 119 …. [12.1], [12.9]

Murray v McKelvey (1950) 68 WN (NSW) 70 …. [16.20] Murrell v Fulton [1962] VR 118 …. [16.19] Muspratt v Johnston [1963] 2 QB 383; 2 All ER 339 …. [17.12] Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723 …. [13.15] Myers v Catterson (1889) 43 Ch D 470 …. [8.5] — v Pioneer Concrete (Vic) Pty Ltd [1997] …. [11.5] N H Dunn Pty Ltd v L M Ericsson Pty Ltd (1979) 2 BPR 9241 …. [10.5] Nai Pty Ltd v Hassoun Nominees Pty Ltd [1985–86] ANZ ConvR 349 …. [16.31] Nance v Taylor [1928] 1 KB 263; [1927] All ER Rep 184 …. [19.2] Nangus Pty Ltd v Charles Donovan Pty Ltd [1989] VR 184 …. [11.17], [15.20], [16.30], [16.32] Napatarra Pty Ltd v Perpetual Trustee Co Ltd [1999] NSWSC 750; [2000] ANZ ConvR 592 …. [4.1] Napier v Williams [1911] 1 Ch 361 …. [5.15], [6.8] Napper, Nieling & Rose v PT Ltd, Terry White Ltd (VCAT (M F Macnamara, Deputy President) 13 March 2003, unreported) …. [23.39] Narcan Pty Ltd v Piccol Credit Co-operative Ltd [1993] ANZ ConvR 393; (1992) V ConvR ¶54-426 …. [23.39] Nardell Coal Corporation Pty Ltd (in liq) v Hunter Valley Coal Processing Pty Ltd (2003) 46 ASCR 467 …. [5.9], [5.10] Nash v Johnsen [1965] NSWLR 1193 …. [3.4] Nashvying Pty Ltd v Giacomi [2007] QCA 454 …. [12.9] National Australia Bank Ltd v Blacker (2000) 104 FCR 288 …. [10.5] — v Golden Sea Dragon (Hobart) Pty Ltd (1992) 4 Tas R 250 …. [1.15] National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675 …. [1.2], [3.1], [4.1], [16.26], [16.27], [16.28], [16.29], [16.30], [16.35] National Mutual Life Association of Australasia Ltd v Price Brent Services [1996] ANZ ConvR 249 …. [16.22]

— v Ampol Ltd (1983) …. [11.6] National Mutual Life Nominees Ltd v Travellers (NSW) Pty Ltd [1997] ANZ Conv R 249 …. [2.15], [11.28], [16.18], [16.21] National Outdoor Advertising Pty Ltd v Wavon Pty Ltd (1988) 4 BPR 97, 322 …. [1.4], [1.5], [3.3], [3.6] National Phonograph Co of Australia Ltd v Menck (1908) 7 CLR 418 …. [2.19] National Provident Fund v Shortland Securities Ltd [1996] …. [11.5] National Provincial Bank v Ainsworth [1965] AC 1175 …. [7.4] National Savings Bank Association, In re; Brady’s case (1867) 15 WR 753 …. [4.6] National Trustees Executors & Agency Co of Australasia Ltd v Boyd (1926) 39 CLR 72 …. [4.1], [4.8] — v Tindall [1933] VLR 369 …. [5.16] National Westminster Bank v Hart [1983] …. [11.3] Natural Gas & Oil Corporation Ltd v Byrne (1951) 68 WN (NSW) 207 …. [2.6], [2.9], [2.20], [10.10] Nature’s World (Chadstone) Pty Ltd v Perpetual Trustees Ltd [2001] VCAT 654 …. [23.34], [23.39] Nature’s World (Chadstone) Pty Ltd v Perpetual Trustees Ltd (2001 unreported) …. [23.35], [23.40] Naumberg v Executors of Albertson (1889) 3 QLJ 125 …. [7.12], [15.16] Naylor v Arnitt (1830) 1 Russ & M 501, 39 ER 193 …. [5.17] NCL Properties Pty Ltd v Harlington Pty Ltd [1979] …. [17.12] Neale v Mackenzie (1836) 1 M & W 747; 150 ER 635 …. [1.9] Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 …. [16.33] Nessmine Pty Ltd v Devuzo Pty Ltd (1989) NSW ConvR ¶55-496 …. [14.1], [14.6] Neubauer v Scott (1967) 10 FLR 72 …. [11.2] Never-Stop Railway (Wembley) Ltd v British Empire Exhibition (1924) Incorporated [1926] 1 Ch 877 …. [10.5]

New Oriental Bank Corporation, Re [1985] 1 Ch 753 …. [16.28] New Oriental Bank Corporation, Re [1895–9] All ER Rep 910 …. [16.28] New South Wales v SAS Trustee Corporation (1997) …. [11.8] New Zealand Government Property Corp v HM & S Ltd [1982] QB 1145; [1982] 1 All ER 624 …. [10.5], [16.36] New Zealand Insurance Co Ltd v Keesing [1953] NZLR 7 …. [10.8] New Zealand Shipping Co v Societe des Ateliers et Chantiers de Franc [1919] AC 1 …. [6.9] Newbolt v Bingham (1895) 72 LT 852 …. [19.2] Newell and Nevill’s Contract, Re [1900] 1 Ch 90 …. [5.19] Newell v Crayford Cottage Society [1922] 1 KB 656 …. [16.19] Newey v Westpac Banking Corporation [2011] NSWCA 319 …. [6.5] Newfoundland v Newfoundland Railway Co (1888) 13 App Cas 199 …. [7.4] Newlon Housing Trust v Alsulaimen [1999] 1 AC 313 …. [5.15] Newman v Real Estate Debenture Corporation Ltd [1940] 1 All ER 131 …. [26.9] — v Slade [1926] 2 KB 328 …. [20.3], [20.4] NGL Properties Pty Ltd v Harlington Pty Ltd [1979] VR 92 …. [6.4], [17.10], [17.12], [17.18], [19.6] Niagara Therapy (UK) Ltd v Richard Shops Ltd (QB, 8 June 1981, unreported1981 unreported) …. [4.2] Niazi Services Ltd v Van der Loo [2004] 1 WLR 1254 …. [10.13], [13.15] Nicholas & Grant’s Lease, Re (1923) 44 ALT 169 …. [14.3] Nicholas v Smith [1956] VLR 416 …. [2.17] Nicholson v Smith (1882) 22 Ch D 640 …. [14.2], [14.8] Nickolau v Papasavas Phillips & Co [1988] VR 682 …. [16.32] Niesmann v Collingridge (1921) CLR 177 …. [14.8] Nightingale v Courtney [1954] 1 QB 399; [1954] 1 All ER 362 …. [16.19] Nime Pty Ltd v Seventh Storey Pty Ltd [1993] V ConvR ¶54-491 …. [25.2]

Nina’s Bar Bistro Pty Ltd v MBE Corp (Sydney) Pty Ltd [1984] 3 NSWLR 613 …. [16.30] Ninubon v Gag Pty Ltd (1998) 9 BPR 16,479 …. [14.6], [20.2], [20.5] Nixon, Re [1904] 1 Ch 638 …. [5.18] — v Doney [1960] NSWR 2; (1960) 77 WN (NSW) 369 …. [11.2] NLS Pty Ltd v Hughes (1966) 120 CLR 583; 40 ALJR 292 …. [11.17], [13.4], [13.14], [16.22], [16.30], [24.7] No 1 Albemarle St, Re [1959] 1 Ch 531; 1 All ER 250 …. [15.20] No Worries Management v Dolman [2004] QSC 153 …. [11.1] Noblett v Manley [1952] SASR 155; [1952] ALR 673 …. [3.8] Nokes v Fish (1857) 3 Drew 735; 61 ER 1084 …. [15.21] Noone v Traynar (1952) 69 WN (NSW) 33 …. [1.9] Norbury Sudbury Ltd v Noront Steel (1981) Ltd (1984) 11 DLR (4th) 686 …. [10.11] Norden v Blueport Enterprises Ltd [1996] 3 NZLR 450 …. [8.4], [8.5] Norfolk Capital Group Ltd v Kitway [1977] QB 506 …. [15.14] Norman v FCT (1963) 109 CLR 9 …. [6.8] Norris v Checksfield [1991] 1 WLR 1241 …. [3.5] Nortel Australia Pty Ltd v Portfolio Leasing Australia Ltd (20 March 1998, unreported) …. [11.8], [14.8] North Eastern Railway Company v Lord Hastings [1900] AC 260 …. [6.6] North Shore Gas Co Ltd v Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52 …. [10.5] North, Re [1909] 1 Ch 625 …. [5.17] Northcott v Roche (1921) 37 TLR 364 …. [17.17] Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 …. [10.1], [10.6] Northern Sandblasting Pty Ltd v Harris’ (1997) …. [10.1] — v — (1998) …. [10.1] Northfield (Highgate) Ltd, Ex parte [1957] …. [15.1]

Norwest Beef Industries Ltd v Peninsular and Oriental Steam Navigation Co (1987) 8 NSWLR 568 …. [6.5] Norwich Union Life Insurance Society v Tony Waller Ltd [1984] …. [11.9] Noske v McGinnis (1933) 47 CLR 563; 8 ALJ 15; [1933] ALR 322 …. [13.4] Novell Holdings Pty Ltd v Adjo Pty Ltd (SC(WA), Full Court, 5 February 1999 unreported) …. [1.15] NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273; 64 WN (NSW) 58 …. [16.18] Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635; 116 ALR 26 …. [1.12] Nunn v Fabian (1865) …. [4.6] Nurdin & Peacock plc v DB Ramsden & Co Ltd [1999] …. [11.3] Nyul Nyul Aboriginal Corporation v Dann (1996) 133 FLR 359 …. [3.9] NZI Capital Corporation Pty Ltd v Child (1991) 23 NSWLR 481 …. [6.5] NZI Insurance Australia Ltd v Baryzcha (2002) 85 SASR 482; [2002] SASC 16 …. [1.12] — v — (2003) 85 SASR 497; [2003] SASC 190 …. [1.3], [4.1], [4.4], [4.8], [11.1], [24.2], [25.2], [26.2], [27.2], [28.2] O’Brien v Clegg; Ex parte Clegg [1951] St R Qd 1 …. [20.20] — v Robinson [1973] AC 912 …. [10.6] O’Callaghan v Elliott [1966] 1 QB 601 …. [14.8] — v Olsen [1948] SASR 123 …. [14.3] O’Connor v Fitzgerald [1927] St R Qd 226 …. [10.10] — v S P Bray Ltd (1937) 56 CLR 464 …. [10.1] O’Connor’s Management Pty Ltd v Kao Holdings Pty Ltd [1998] WASCA 2 …. [26.10] O’Dea v Allstates Leasing System (WA) Pty Ltd (1983) …. [11.3] O’Dwyer v Butts (1952) 69 WN (NSW) 198 …. [4.1] O’Keefe v Williams (1910) 11 CLR 171; [1911] ALR 113 …. [5.6], [7.1],

[8.1], [8.4], [13.15] O’Leary v Islington London Borough Council (1983) 9 HLR 81 …. [8.4] O’Mahony v Dickson (1905) 2 Sch & Lef 305 …. [7.4] O’Mullane v Wilson (1856) 1 VLT 86 …. [5.15], [7.12], [15.16] O’Neill v Coffill (1920) 20 SR (NSW) 264 …. [10.8] O’Rourke v Hoeven [1974] 1 NSWLR 622 …. [4.9] O’Shanassy v Symons (1856) 1 VLT 58 …. [7.7] O’Shea, Re [1957] VR 352 …. [1.7], [5.17] O’Young v Walter Reid and Co Ltd (1932) 47 CLR 497 …. [4.4] Oak Property Co Ltd v Chapman [1947] 1 KB 886; 2 All ER 1 …. [17.18] Oastler v Henderson (1877) 2 QBD 575 …. [16.21], [16.31] Oates v Oates [1949] SASR 37 …. [5.15] Ocean Line v Macquarie Bank (SC(Qld), Mackenzie J, CA No 6935 of 1996, 26 September 1996, unreported) …. [16.36] Oceanic Steam Navigation Co v Sutherberry (1880) 16 Ch D 236 …. [5.17], [5.18] Oceanic Village Ltd v Shirayma Shokussan Co Ltd [2001] EGCS 162 …. [8.5] Ocelota Pty Ltd v Water Administration Ministerial Corporation (2000) …. [11.3] Octra Nominees Pty Ltd v Chipper (2007) ANZ ConvR 455 …. [14.4] Official Assignee, Ex parte [1958] …. [17.9] Official Custodian for Charities v Mackey (No 2) [1985] 1 WLR 1308; [1985] Ch 168 …. [17.17], [19.5], [19.6] — v Parway Estates Developments Ltd [1985] Ch 151 …. [15.21], [17.18], [19.1], [19.6] Official Trustee of Charity Lands v Ferriman Trust Ltd [1937] 3 All ER 85 …. [1.15], [15.17] Offset Printing Co Pty Ltd v Peters (1955) 73 WN (NSW) 178 …. [15.13] Ogwr Borough Council v Dykes [1989] 1 WLR 295 …. [1.4] Old Grovebury Manor Farm Ltd v W Seymour Plant Sales & Hire Ltd (No 2)

[1979] 1 WLR 1397 …. [15.16], [18.10], [24.18] Old Papa’s Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11 …. [15.16], [19.1], [24.18], [26.8] Oldershaw v Holt (1840) 12 A & E 590; 113 ER 935 …. [13.4] Olga Investments v Citipower Ltd [1988] VR 485 …. [2.16] Oliver as Agent for Women’s Hospital (Crown St) v Holliday (1951) 51 SR (NSW) 316 …. [20.11] Oliver v Oliver (1958) 99 CLR 20 …. [14.8] Olsson v Dyson (1969) 120 CLR 365 …. [1.15] One Stop Lighting (Queensland) Pty Ltd v Lifestyle Property Developments Pty Ltd (1999) Q ConvR ¶54-527 …. [4.1], [4.4], [4.5] Ong v Luong (1991) 9 BPR 16,795 …. [6.5] Onslow v Corrie (1817) 2 Madd 330; 56 ER 357 …. [5.18] Opera House Investments Pty Ltd v Devon Buildings Pty Ltd (1936) …. [11.8] Optus Network Pty Ltd v Stonnington City Council [1996] 2 VR 209 …. [23.65] Oraka Pty Ltd v Leda Holdings (1997) ATPR 41-558 …. [12.9] Orchard v Simpson (1857) 2 CBNS 299; 140 ER 431 …. [26.10] Ormond v Hutchinson (1809) Ves 94; 33 ER 919 …. [5.13] Orr v Ford (1989) 167 CLR 316; 84 ALR 146 …. [8.9] Orti-Tullo v Sadek (2001) 10 BPR 19,179; [2001] NSWSC 855 …. [23.40] Orsay Holdings Pty Ltd v Mecanovic [2013] QCA 232 …. [25.13] Ory and Ory v Betamore Pty Ltd (in liq) (1993) 60 SASR 393 …. [7.4], [11.3], [15.20] Osborne Computer Corporation Pty Ltd (vol admin apptd) v Airroad Distribution Pty Ltd (1995) 17 ACSR 614 …. [16.36] Osborne Park Co-operative Society Ltd v Wilden Pty Ltd (1989) 2 WAR 77 …. [1.15] Oscars Town Centre Restaurant Pty Ltd v Port Shores Pty Ltd (1987) NSW

Conv R ¶55-331 …. [14.8] Osland v Foot (No 1) (1951) 69 WN (NSW) 320 …. [4.10] Otago Harbor Board v Spedding (1885) 4 NZLR 272 …. [5.8] Our Boy’s Clothing Co v Holborn Viaduct Co (1896) 40 Sol Jo 561 …. [7.14] Overell’s Pty Ltd, Ex parte [1941] …. [16.18], [17.10] Ovidio Carrideo Nominees Pty Ltd v Dog Depot Pty Ltd [2004] VSC 400 …. [23.39] — v — (2006) V ConvR ¶54-713; [2006] VSCA 6 …. [2.15], [23.39], [23.46] Owen v Elliott (Inspector of Taxes) [1990] 1 Ch 786 …. [23.23] — v Gadd [1956] 2 QB 99; [1956] 2 All ER 28 …. [8.4], [13.15] Owendale Pty Ltd v Anthony (1967) 117 CLR 539 …. [17.4], [17.12], [17.17], [17.18] Owers, Re [1941] Ch 389 …. [5.18] Oxford v Provand [1868] LR 2 PC 135 …. [7.16] Oxley v James (1844) 13 M & W 209; 153 ER 87 …. [1.8] Oz Sushi Pty Ltd v Lloyd Bennett & Associates Pty Ltd [2002] QDC 220 …. [25.8] P & A Swift Investments (a firm) v Combined English Stores Group plc [1989] AC 632 …. [15.20] P J Balnaves Nominees Pty Ltd v Third Szable Holdings Pty Ltd [2002] SASC 88 …. [24.2], [25.2], [26.2], [27.2], [28.2] P&S Amusements Ltd v Valley House Leisure Ltd [2007] EWHC 1494 …. [8.1] Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 …. [4.2], [6.4], [6.5] Pacific Cinemas (Loganholme) Pty Ltd v Longhurst [1996] …. [11.5] Pacific Loan & Finance Pty Ltd v Litmanowicz [1960] NSWR 805; 78 WN (NSW) 459 …. [16.3], [20.1] Pacific Parking Pty Ltd and Leighton Holdings Ltd v Ryssal Three Pty Ltd

(1995) V ConvR ¶54-515 …. [14.6] Page v More (1850) …. [17.17] Paget v Pearson (1949) 49 SR (NSW) 235 …. [20.9] Pain v Coombs (1857) 1 De G & J 34; 44 ER 634 …. [4.6] Pallos v Munro (1970) 72 SR (NSW) 507 …. [16.8] Palmdale Insurance Limited v Sprenger [1988] 1 Qd R 414 …. [2.14], [2.15], [4.1], [5.1], [15.16] Palmer v Ampersand Investments Ltd (1984) 11 DLR (4th) 295 …. [14.1] Palmer, Ex parte (1912) 12 SR (NSW) 756 …. [3.9], [5.17], [20.12], [20.27] Pampris v Thanos [1968] 1 NSWR 56; (1967) 87 WN (Pt 2) (NSW) 161 …. [8.6] Pan Australian Credits (SA) Pty Ltd v Kolim Pty Ltd (1981) 27 SASR 353 …. [10.5] Panamena Europea Navigacion (Compania Limitada) v Frederick Leyland & Co Ltd [1947] AC 428 …. [17.5] Pape v Aero Club (Holdings) Pty Ltd (1971) 222 EG 41 …. [13.11] Papillon v Brunton (1860) 5 H & N 518; 157 ER 1285 …. [20.28] Paralowie Investments Pty Ltd v Maurice Srour Pty Ltd [2006] SADC 16 …. [25.7], [27.6], [27.7] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 …. [12.9], [24.3], [25.13], [26.3], [27.3], [28.3] Parker v Briggs (1893) 37 Sol Jo 452 …. [16.15] — v Camden London Borough Council [1986] Ch 162 …. [10.13] — v Harris (1692) 1 Salk 262; 91 ER 230 …. [11.1] — v Jones [1910] 2 KB 32 …. [15.16], [16.3] — v Mallon (1907) 24 WN (NSW) 206 …. [13.11] — v Sell (1890) 16 VLR 271 …. [5.14], [5.15], [10.10] — v Taswell (1858) 2 De G & J 559; 44 ER 1106 …. [1.6] — v Webb (1693) 3 Salk 5; 91 ER 656 …. [15.19], [15.20] — v Whyte (1863) 1 H & M 167 …. [13.11]

Parker (dec’d), Re (1985) …. [11.3] Parkinson v Braham [1962] NSWR 165; [1962] SR (NSW) 663 …. [5.16] Parras v FAI General Insurance Company Ltd (2001) 10 BPR 19,209 …. [14.10] Parry v Robinson Wyllie Ltd [1987] 2 EGLR 133 …. [15.19] Parsons v Parsons [1983] 1 WLR 1390 …. [5.15] — v Payne [1945] VLR 34 …. [16.18], [16.21], [16.28] Partenreederei M/S Karen Oltmann v Scarsdale Shipping Co Ltd (The Karen Oltmann)[1976] 2 Lloyd’s Rep 708 …. [6.6] Partnership Pacific Securities Limited, Re [1994] 1 Qd R 410 …. [7.4], [15.20] — v Terry White Group Pty Ltd (SC(Qld), de Jersey J, unreported, OS 240 of 1992) …. [7.4] Partridge v McIntosh & Sons Ltd (1933) 49 CLR 453 …. [1.14] Pascoe v Holyoake [2006] NSWSC 64 …. [24.20] Pascoe-Webbe v Nusuna Pty Ltd (1985) 3 BPR 9620 …. [23.35], [23.36] — v — (1985) 3 BPR 97,231 …. [16.11], [16.19], [23.11], [23.16] Pascon Pty Ltd v San Marco in Lamis Cooperative Social Club Ltd [1991] 2 VR 214 …. [16.8] — v — [1991] 2 VR 227 …. [16.9] Pasley v Freeman (1789) 3 TR 51; 1 RR 634; [1775–1802] All ER Rep 31 …. [6.11] Pata Nominees Pty Ltd v Durnsford Pty Ltd [1988] WAR 365 …. [14.1], [14.4] Patel v Earlspring Properties Ltd [1991] …. [11.9] — v Patel [1981] 1 WLR 1342 …. [5.18] Pateman v Heyen (1993) 33 NSWLR 188 …. [5.17] Patrick Corporation Ltd v Toll Holdings Ltd (2005) 55 ACSR 386; [2005] VSC 392 …. [4.2] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia

(1998) 195 CLR 1 …. [7.8] Patrick Stevedores Operations (No 2) Pty Ltd v Port of Melbourne Corporation [2016] VSC 528 …. [14.2], [14.3] Paul v Nurse (1828) 8 B & C 486; 108 ER 1123 …. [15.16], [15.19] Paull v Williams [2005] NSWCA 421; [2006] ANZ ConvR 132 …. [4.1] Pawson v Revell [1958] 2 QB 360; [1958] 3 All ER 233 …. [5.19] Payne v Haine (1847) 16 M & W 541; 153 ER 1304 …. [10.8] — v Morrison [1991] ANZ ConvR 458; (1992) V ConvR ¶54-428 …. [23.39] PCM Nominees (No 2) Pty Ltd v Brighton Bay Developments Pty Ltd [2006] VSC 351 …. [6.6] Peachy v Duke of Sommerset (1721) 1 Stra 447 …. [19.1] Pearce v Florenca (1976) …. [12.16] — v Kitchin (1931) 26 Tas LR 38 …. [2.19] Pearch v Gyucha (1953) 71 WN (NSW) 123 …. [3.4] Pearse v Boulter (1860) 2 F & F 133; 175 ER 993 …. [20.12] Pearson v Gee and Braceborough Spa Ltd [1934] AC 272 …. [18.4] Peebles v Crosthwaite (1896) 13 LT 37; (1897) 13 TLR 198 …. [15.3] Peers v Sneyd (1853) 17 Beav 151; 51 ER 990 …. [14.8] Peet & Co Ltd v Rocci [1985] WAR 164 …. [4.2], [4.8], [13.4], [16.30] Pellatt v Boosey (1862) 31 LJCP 281 …. [17.18] Pembery v Lamdin [1940] 2 All ER 434 …. [10.7], [10.10] Peninsular Maritime Ltd v Padseal Ltd [1981] 2 EGLR 43 …. [17.12] Penn v Gatenax Co Ltd [1958] 1 All ER 712 …. [8.6], [10.1] — v — [1958] 2 QB 210 …. [8.6], [10.1] Pennell v City of London Brewery Co [1900] 1 Ch 496 …. [18.6] — v Payne [1995] QB 192 …. [16.3], [17.16] Penny v Craber [1967] 1 NSWR 683; (1967) 87 WN (Pt 1) (NSW) 27 …. [16.19]

Penton v Barnett [1898] 1 QB 276 …. [17.18], [18.6], [18.9] — v Robart (1801) 2 East 88; 102 ER 302 …. [10.5] — v — (1802) 2 East 88; 102 ER 302 …. [16.36] Pepper v District Council of Stirling [1948] SASR 344 …. [3.3] Peppercorn Holdings No 1 Pty Ltd v DDH Graham Ltd [2006] QSC 156 …. [14.4] Peppercorn Nominees Pty Ltd v Loizou (1997) V ConvR ¶54-560 …. [23.8], [23.19], [23.55] Perera v Vandiyar [1953] 1 All ER 1109; [1953] 1 WLR 672 …. [8.4], [13.15] Permanent Custodian Trustees v Payne [1964] NSWR 1098 …. [2.11] Perpetual Executors & Trustees Assn of Aust Ltd v England (1901) 27 VLR 443 …. [5.17] — v Russell (1931) 45 CLR 146; [1931] ALR 89 …. [4.3], [4.10] Perpetual Trustee Co Ltd v Crooks Michell Peacock Stewart Pty Ltd (1992) 5 BPR 97, 415 …. [6.7], [11.8] — v — (1994) …. [11.8] — v Morley (1968) 121 CLR 659 …. [1.10] — v Pacific Coal Co Pty Ltd (1953) 55 SR (NSW) 495 …. [11.1], [11.2] — v — (1955) 93 CLR 479 …. [11.1], [11.2] Perre v Apand (1999) 198 CLR 180 …. [10.1] Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 …. [4.1] Perri v Exego Pty Ltd [2009] NSWADT 170 …. [24.10] Perron Investments Pty Ltd v Assignment Holdings Pty Ltd [2005] WASCA 2 …. [26.10] Perry v Sidney Phillips & Son (a firm) [1982] 3 All ER 705; [1982] 1 WLR 1297 …. [10.13] Persey v Bazley [1983] 2 EGLR 3 …. [20.16] Persian Magic Carpets Pty Ltd v Ipoh Garden (Australia) Pty Ltd (1989) ATPR 40-935 …. [12.3]

Peter A Simon Real Estate Pty Ltd v Ghabash [2004] NSWCA 467 …. [10.13] Peters v Oscar Mayer Pty Ltd [1963] VR 390 …. [20.27] Petra Investments Ltd v Jeffrey Rogers PLC [2001] L&TR 451 …. [8.5] Philip Bernstein (Successors) Ltd v Lydiate Textiles (unreported), 26 June 1962 Court of Appeal (Civil Division) …. [10.13] Phillip Webb Pty Ltd v 483 Whitehorse Road Pty Ltd (VCAT, Deputy President Macnamara, 29 August 2006, unreported) …. [7.8], [23.18] Phillips v Mobil Oil Co Ltd [1989] 1 WLR 888 …. [15.20] — v Parnaby [1934] 2 KB 299 …. [23.18] — v Phillips (1861) 4 DeG F & J 208; 45 ER 1164 …. [6.8] Philpots (Woking) Ltd v Surrey Conveyancers Ltd [1986] …. [11.8] Picton-Warlow v Allendale Holdings Pty Ltd [1988] WAR 107 …. [11.9], [15.1], [15.2], [15.18], [15.19] Pierson v Harvey (1885) 1 TLR 430 …. [17.18] Piggott v Middlesex County Council [1909] 1 Ch 134 …. [20.16] — v Seeberg (1949) 66 WN (NSW) 198 …. [20.20] Pike v Eyre (1829) 9 B & C 909; 109 ER 338 …. [16.3] Pimms Ltd v Tallow Chandlers Company [1964] 2 QB 547 …. [15.11], [15.13], [15.14], [26.8] Pincott v Moorstons Ltd [1938] 1 All ER 513 …. [15.3] Pinn v Barbour (1870) 1 VR (L) 136 …. [8.4], [13.3] Pioneer Concrete Services Ltd v Galli [1985] VR 675 …. [24.2], [26.2], [27.2] Pioneer Gravel (Qld) Pty Ltd v J & T Mining Corporation Pty Ltd [1975] Qd R 151 …. [19.1], [19.2] Pioneer Quarries (Sydney) Pty Ltd v Permanent Trustee Co of NSW Ltd (1970) 2 BPR 9562 …. [11.1], [17.12], [17.19], [18.3], [18.6], [19.1], [19.2], [19.4] — v — (1970) 2 BPR 97, 145 …. [19.2], [19.4]

Pirie v Saunders (1961) 104 CLR 149 …. [4.4] PJ Balnaves Nominees Pty Ltd v Third Szable Holdings Pty Ltd [2002] SASC 88 …. [1.2] Placer Development Ltd v The Commonwealth (1969) 121 CLR 353 …. [1.5], [4.8], [14.3] Planned Properties Ltd v Ramsdens Commercials Ltd (QB, Hutchinson J, 2 March 1984, unreported) …. [17.10] Plastic Enterprises Pty Ltd v The Southern Cross Assurance Company Ltd [1968] Qd R 401 …. [15.16] Platt v Ong [1972] VR 197; 46 ALJ 591 …. [7.14], [19.2], [19.4], [19.5] Players Pty Ltd v Clone Pty Ltd [2006] SASC 118 …. [4.1] Playgoers’ Cooperative Theatres Ltd v Workers Educational Association (NSW) (1955) 72 WN (NSW) 374 …. [3.8] Pleasant v Benson (1811) 14 East 234; 104 ER 590 …. [16.3] Plimmer v Mayor of Wellington (1884) 9 App Cas 699 …. [4.7] — v Wellington Corporation (1884) …. [1.15] Plomley v T K Steanes Ltd (1898) 19 LR (NSW) 215 …. [5.8] Plough Investments v Manchester City Council [1989] 1 EGLR 244 …. [10.7] Plummer v David [1920] 1 KB 326 …. [15.20], [17.12] Plummer & Adams v Needham (1954) 56 WALR 1 …. [24.2], [25.2], [23.18] Plummer & John v David [1920] 1 KB 326 …. [15.20], [16.3], [17.12] Plumrose Ltd v Real and Leaseholds Estates Investment Society Ltd [1970] 1 WLR 52 …. [6.5], [14.2] Plunkett v Dease (1846) 101 Eq R 124 …. [9.1] Plymouth Corporation v Harvey [1971] 1 WLR 549 …. [1.6], [15.10], [18.1], [18.4] Point Cook Community Entertainment Facility Pty Ltd v Geelong Football Club Ltd [2017] VSC 313 …. [6.4] Polgara Pty Ltd v Vision Wise Holdings Pty Ltd (1996) NSW ConvR ¶55781 …. [10.10], [14.1], [23.49]

— v — (SC(NSW), 11 March 1996, unreported) …. [23.50] Polleyket v Georgeson (1878) 4 VLR (Eq) 207 …. [4.7] Ponsford v HMS Aerosols Ltd [1979] AC 63 …. [11.1], [11.8] Poole v Warren (1838) 8 Ad & El 582; 112 ER 959 …. [17.17] Poole’s case (1703) 1 Salk 386; Holt KB 65; 90 FR 934 …. [10.5] Poort v Development Underwriting (Victoria) Pty Ltd (No 2) [1977] VR 454 …. [16.27] Poppett’s (Caterers) Ltd v Maidenhead Corp [1971] 1 WLR 69 …. [5.8] Port Sudan Cotton Co v Govindaswamy Chettiar & Sons [1977] 2 Lloyd’s Rep 5 …. [6.6] Port v Griffith [1938] 1 All ER 295 …. [8.5] Porter v Busch [1974] 1 NSWLR 593 …. [3.4] — v Hannah Builders Pty Ltd [1969] VR 673 …. [3.8] — v Williams (1914) 14 SR (NSW) 83 …. [2.5] Post Office v Aquarius Properties Ltd [1985] 2 EGLR 105 …. [10.8] — v — [1987] 1 EGLR 40 …. [10.8] Potter v Inland Revenue Commissioners (1854) 10 Exch 147; 156 ER 392 …. [24.5], [25.5], [27.5] Poulter v Bigham [1955] VLR 326 …. [15.12], [15.13] Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) (recs and mgrs apptd) (2017) 18 BPR 36,615 …. [10.5] Prasad v Fairfield City Council [2000] NSWADT 164 …. [24.20] Prebble v Reeves [1910] VLR 88 …. [5.17] Precious v Reedie [1924] 2 KB 149; [1924] All ER Rep 573 …. [20.2], [20.3] Precision Street Industrial Property Pty Ltd, Re [1994] 2 Qd R 614 …. [10.1], [16.6] Premier Confectionery (London) Co Ltd v London Commercial Sale Rooms Ltd [1933] Ch 904 …. [15.14] Premier Permanent Building Society, Re (1890) 16 VLR 643 …. [5.9]

Prenn v Simmonds [1971] 1 WLR 1381 …. [6.5] Prestige Land Developments Pty Ltd v Eagle Hotels Pty Ltd (1996) NSW ConvR ¶55-764 …. [6.8] Price v Mayman [1948] SASR 241 …. [17.9], [17.10] — v Murray [1970] VR 782 …. [12.3], [14.8], [15.1], [15.20] — v Strange [1978] Ch 337 …. [10.13] — v Williams (1836) 1 M & W 6; 150 ER 323 …. [13.3] — v Worwood (1859) 4 H & N 512; 157 ER 941 …. [17.18] Prideaux v Director of Prosecutions (Vic) (1987) 61 ALJR 600 …. [21.3] Primary RE Ltd v Great Southern Property Holdings Ltd [2011] VSC 242 …. [18.2], [18.6] Pritchard v Briggs [1980] Ch 338 …. [14.1], [14.4] Proctor v Milton (1987) NSW ConvR ¶56-959 …. [3.8] Profile Events Pty Ltd v West Beach Trust [2010] SADC 52 …. [27.7] — v — [2011] SASCFC 1 …. [27.7] Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; 57 ALR 609; 59 ALJR 373 …. [1.2], [1.6], [2.8], [4.1], [4.8], [10.13], [11.1], [11.3], [11.17], [13.4], [13.15], [14.1], [16.1], [16.11], [16.21], [16.26], [16.27], [16.28], [16.30], [16.31], [16.35], [17.6], [17.7], [17.8], [17.12], [17.22], [19.2], [20.6], [23.11], [23.63], [23.64] Project Blue Moon Pty Ltd v Fairway Trading Pty Ltd [2000] FCA 127 …. [8.5] Propert v Parker (1832) 3 Myl & K 280; 40 ER 107 …. [9.1] Property Holding Co Ltd v Clark [1948] KB 630 …. [11.1] Proudfoot v Hart (1890) 25 QBD 42; [1886–90] All ER Rep 782 …. [10.8], [10.10], [23.54] Provident Capital Ltd v Zone Developments Pty Ltd (2002) 10 BPR 19,133 …. [15.9] Provident Life Assurance Co Ltd v Official Assignee [1963] …. [23.18], [24.2], [25.2] Province of Bombay v Municipal Corporation of Bombay [1947] AC 58 ….

[24.2], [25.2] Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 …. [14.8] — v London Residuary Body [1992] 2 AC 386 …. [1.2], [1.3], [1.5], [1.12], [2.1], [2.2], [2.7], [2.8], [2.13], [2.19] Psaltis v Collins [1961] NSWR 375; (1960) 78 WN (NSW) 424 …. [3.4] PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446 …. [24.6] Public Curator v L A Wilkinson (Northern) Ltd [1933] QWN 28 …. [17.17] Public Trustee v Westbrook [1965] 1 WLR 1160 …. [19.5], [19.6] Pukallus v Cameron (1982) 180 CLR 447; 56 ALJR 907 …. [6.8] Pulteney v Shelton (1799) 5 Ves 260n; 31 ER 576 …. [20.27] Purbrick v Rybar [1951] VLR 275 …. [3.4] PW & Milton Gate Investments (BT Property, Pt 20 defendants) [2004] 2 WLR 443 …. [16.3], [17.16] Pyrmont Point Pty Ltd v Westacott (2016) 91 NSWLR 170; (2016) 18 BPR 35,741 …. [24.2] Quadling v Robinson (1976) 137 CLR 192 …. [14.1], [14.8] Quadramain Pty Ltd v Sevastapol Investments Pty Ltd (1976) 133 CLR 390 …. [7.8], [12.2] Quan Hong Le v Victoria Investments and Property Pty Ltd (SC(Vic), unreported, Beach J, 9 February 1999) …. [19.1] Quartermaine v McCleery [1947] VLR 412 …. [20.5] Queen’s Club Gardens Estates Ltd v Bignell [1924] 1 KB 117; [1923] All ER Rep 165 …. [20.3] Queensland Electricity Generating Board, The v New Hope Collieries Pty Ltd (1989) 1 Ll Rep 205 …. [4.8] Queensland Television Ltd v Federal Commissioner of Taxation (1969) 119 CLR 167; 1 ATR 419 …. [1.10], [2.11], [5.7] Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 83 ALR 577 …. [26.10]

Quick v Taff-Ely Borough Council [1986] QB 809 …. [10.8] Quilter v Mapleson (1882) 9 QBD 672 …. [19.4] Quinlan v Avis (1933) 149 LT 214 …. [1.6] Quinney v United Stevedoring Pty Ltd [1957] VR 484 …. [20.18] Quirk v Commonwealth (1995) …. [11.4] R & A Dalley & Co Pty Ltd v Giex Pty Ltd (1991) …. [11.8], [11.20] R & C Mazzei Nominees Pty Ltd v Aegean Food Import Export Pty Ltd [2006] VSC 210 …. [23.36], [23.40] R & H Australia Pty Ltd v Salta Constructions Pty Ltd (1993) …. [11.5] R & J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232 …. [7.4] R v Aylesbury (Inhabitants) (1846) NSWSC 232; 115 ER 1273 …. [7.16] — v Barnet Rent Tribunal; Ex parte Millman [1950] 2 KB 506 …. [24.5], [25.5], [26.4] — v Chief Immigration Officer (1973) 1 WLR 141 …. [14.8] — v Chipping-Norton (1804) 5 East 239; 102 ER 1061 …. [5.8] — v Credit Tribunal; Ex parte General Motors Acceptance Corporation, Australia (1977) …. [12.16] — v Dale [1906] VLR 662 …. [5.6] — v Everist (1847) …. [11.1] — v Heron (1884) 10 VLR (L) 314 …. [20.27] — v Kotzmann [1999] 2 VR 123 …. [10.13] — v Licensing Court of Brisbane; Ex parte Daniell (1920) …. [12.16] — v Loewenthal; Ex parte Blacklock (1974) …. [12.16] — v Mountford [1972] 1 QB 28; [1971] 2 WLR 1106 …. [21.3] — v Paulson [1921] 1 AC 271; [1918–23] All ER Rep Ext 809 …. [17.18] — v Registrar of Titles …. [11.1] — v Registrar of Titles; Ex parte Commonwealth (1915) 20 CLR 379; 21 ALR 435 …. [1.12], [5.8]

— v Robinson [1971] 1 QB 156; [1970] 3 All ER 369 …. [21.3] — v Slator (1881) 8 QBD 267 …. [7.14] — v St Martin-in-the-Fields [1842] 3 QB 204 …. [1.12] — v Templeton (1873) 4 AJR 20 …. [21.3] — v Tottenham and District Rent Tribunal; Ex parte Northfield (Highgate) Ltd [1957] 1 QB 103; [1956] 2 All ER 863 …. [15.1], [15.19] — v Victorian Licensing Court; Ex parte Beggs [1964] VR 48 …. [16.4] — v Westbrook; R v Everist (1847) 10 QB 178; 116 ER 69 …. [11.1] — v Young (1999) 8 VLR (Eq) 93 …. [11.8] Radaich v Smith (1959) 101 CLR 209; [1959] ALR 1253 …. [1.2], [1.3], [1.4], [1.12], [3.4], [24.2], [25.2], [26.2], [27.2], [28.2] Radford v De Froberville [1978] 1 All ER 33; [1977] 1 WLR 1262 …. [10.13] Radio Theatres Pty Ltd v City of Coburg [1948] VLR 84 …. [1.3], [3.3] Rae v Clifford (1893) NZLR 257 …. [2.13], [5.18] Raffaele v Raffaele [1962] WAR 238 …. [1.15] Raffety v Schofield [1897] 1 Ch 637 …. [14.6] RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164; 112 ALR 511; ATPR 41-225 …. [12.9], [24.3], [25.13], [26.3], [28.3] Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd [1921] 2 AC 465 …. [15.3] Rainbow Estates Ltd v Tokenhold Ltd [1999] Ch 64 …. [10.13] Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900; [2012] 1 All ER 1137; [2011] UKSC 50 …. [6.4] Rakay v MacFarlane [1961] NSWR 1121; (1960) 78 WN (NSW) 488 …. [18.7] Rakita’s Application, Re [1971] Qd R 59 …. [12.3], [15.1], [15.20] Raleigh v Cooks Corner Kallista Pty Ltd (2008) …. [23.45], [23.46] Raleigh v Cooks Corner Kallista Pty Ltd (VCAT, Deputy President

Macnamara, 21 February 2008) …. [23.44], [23.45] Ramage v Womack [1900] 1 QB 116 …. [5.17] Ramsbottom v Snelson [1948] 1 All ER 201; [1948] 1 KB 473 …. [3.9] Ramsden v Dyson (1866) LR 1 HL 129 …. [1.15], [4.7] Randall v Lynch (1810) 12 East 179 …. [7.1] Randazzo v Goulding [1968] Qd R 433 …. [14.3] Randi Wixs Pty Ltd v Pokana Pty Ltd (No 2) [2003] NSWADT 4 …. [24.3] Rands v Clark (1870) 19 WR 48 …. [17.17] Rangatira Pty Ltd v Viola Hallam Ltd [1957] NZLR 1188 …. [5.10] Rankin v Danby (1883) 9 VLR (L) 278 …. [15.19] Ratcliffe v Evans [1892] 2 QB 524 …. [13.15] Rathborne v Gandali [1970] 1 NSWR 297 …. [16.19] Ratto v Trifid Pty Ltd [1987] WAR 237 …. [1.6], [4.2], [4.3], [4.5] Raven Financial Group Pty Ltd v 52nd Wayre Pty Ltd (VCAT, M F Macnamara, Deputy President, 3 April 2000, unreported) …. [23.40] Raven v Mc Shorp Pty Ltd (1996) Q ConvR ¶54-474 …. [13.15] Ravenseft Properties Ltd v Davstone (Holdings) Ltd [1980] QB 12 …. [10.8] Ravenseft Properties Pty Ltd v Hall [2002] EG 126 …. [20.20] Rawcliffe v Johnstone and Morton [1921] NZLR 470 …. [5.17] Rawlins v Turner (1699) 1 Ld Raym 736; 91 ER 1392 …. [1.6] Rawlinson v Ames [1925] Ch 96 …. [4.7] — v Marriott (1867) 16 LT 207 …. [17.17] Rawson v Hobbs (1961) 107 CLR 466 …. [16.30] — v Samuel (1841) 41 ER 451 …. [7.4] Raymond v Cook [1958] 3 All ER 407; [1958] 1 WLR 1098 …. [7.14] Raywall Pty Ltd v Calho Pty Ltd (2007) ANZ ConvR 562 …. [14.9] Read, Re [1971] …. [17.18] Reardon-Smith Line Ltd v Hansen Tangen [1976] 1 WLR 989; [1976] 3 All ER 570 …. [6.4], [6.5]

Redden v Wilks and the Registrar of Titles [1979] WAR 161 …. [1.6] Redder Than Red Tomato Co Pty Ltd v AB & SM Rawlings Pty Ltd [1999] SASC 30 …. [1.15] Rede v Farr (1817) 6 M & S 121; 105 ER 1188 …. [17.4] Rederiaktiebolaget Amphitrite v The King [1921] 3 KB 500 …. [5.6] Redman v Permanent Trustee Co of NSW Ltd (1916) 22 CLR 84 …. [4.8] Reed Executive plc v Reed Business Information Ltd [2004] 4 All ER 942 …. [23.59], [23.62] Reed v Sheehan (1982) 56 FLR 206 …. [14.1], [14.6], [14.9] Reeves v Diffin (1964) 82 WN (Pt 1) (NSW) 93 …. [20.14] — v Pope [1914] 2 KB 284 …. [7.4], [15.20] Regent Oil Co Ltd v J A Gregory (Hatch End) Ltd [1965] …. [1.14] Regent v Millett (1976) 133 CLR 679 …. [4.5] Regis Property Co Ltd v Dudley [1959] AC 370; [1958] 3 All ER 491 …. [8.7], [10.2], [10.3], [10.11] Regis Towers Real Estate Pty Ltd v Fung (2001) NSW ConvR ¶55-960 …. [13.11] Register, Re; Ex parte Official Assignee [1958] NZLR 1050 …. [17.9] Registrar of Titles v Spencer (1909) 9 CLR 641 …. [10.5] — v — (1910) 9 CLR 641 …. [10.5] Regor Estates Ltd v Wright [1951] 1 KB 689 …. [11.1], [11.2] Reid v Blagrave (1831) 9 LJ (OS) Ch 245 …. [14.11] — v Hipkiss (2001) 10 BPR 19,305 …. [7.4], [11.3] Reihana Terekuku v Kidd [1885] NZLR 4 SC 140 …. [10.3] Reilly v Liangis Investments Pty Ltd (2000) BPR 17,509 …. [14.6] Reinforcement Scheduling Pty Ltd (t/as Camelot Receptions) v 1736 Dandenong Road Pty Ltd [2004] 10 BPR 19,305; [2004] VCAT 1349 …. [7.8], [23.18] Reinsurance Co Ltd v Fagan [1997] AC 313 …. [6.4] Reliance Permanent Building Society v Harwood-Stamper [1944] Ch 362 ….

[10.6] Relvok Properties v Dixon (1973) 25 P & CR 1 …. [11.17], [16.18] Rember Pty Ltd v Western Glade Pty Ltd (30 July 1997) …. [15.9] Remon v City of London Real Property Co [1921] 1 KB 49; [1918–23] All ER Rep Ext 803 …. [20.20] Rendall v Andreae (1892) 61 LJQB 630 …. [5.18], [16.25] Renshaw v Maher [1907] VLR 520 …. [15.19] — v Moore (1917) 34 WN (NSW) 95 …. [8.4] Rental Bond Board v Bayman Development Pty Ltd (1985) 3 BPR 9670 …. [3.3] Reporoa Stores Ltd v Treloar [1958] NZLR 177 …. [14.8] Retail Parks Investments Ltd v Royal Bank of Scotland plc (No 2) (1996) 10 BPR 19,305 …. [7.8] Retail Tenancies Award No 3 (1992) V ConvR ¶58-512 …. [23.43], [23.47] Retail Tenancies Award No 9 [1994] V ConvR ¶58-518 …. [24.2], [25.2] Retail Tenancies Award No 13 (1995) V ConvR ¶58-522 …. [23.30] Retail Tenancies Award No 14 — Farley Bay Pty Ltd v Thomas (1996) V ConvR ¶58-523 …. [7.8] Rethmeier v Pioneer House Pty Ltd (1990) 6 BPR 97,450 …. [14.6] Returned Sailors, etc League v Abbott [1946] SASR 270 …. [10.8] Rexdale Investments Ltd and Gibson, Re [1967] 1 OR 251 …. [19.4] Reynolds, Re (1909) 10 SR (NSW) 109 …. [5.17] — v Pitt (1812) 19 Ves Jun 140 …. [19.1] Rhodes v Allied Dunbar Pension Services Ltd [1989] 1 All ER 1161; [1989] 1 WLR 800 …. [5.10], [15.1], [16.11] Rhone v Stephens [1994] 2 AC 310 …. [15.18], [15.19] Rhyl Urban District Council v Rhyl Amusements Board [1959] 1 WLR 465 …. [5.8] Rialta Pty Ltd v Handbags International Pty Ltd (1993) V ConvR ¶58-469 …. [1.4], [23.16]

Rice v Rice (1853) 2 Drew 73; 61 ER 646 …. [1.15] Richard Clarke & Co Ltd v Widnall [1976] 1 WLR 845; 3 All ER 301 …. [17.1], [18.1], [19.2] Richards v De Freitas (1974) 29 P & CR 1 …. [11.3], [17.18] Richardson, Re [1911] 2 KB 705 …. [5.17] — v Kearton (1882) 8 VLR (E) 201 …. [14.8] — v Landecker (1950) 50 SR (NSW) 250; 67 WN 149 …. [1.4], [1.6], [1.9], [4.3], [15.1], [16.3] — v Lockevo Pty Ltd [2010] NSWADT 305 …. [24.10] — v Somas [1967] WAR 109 …. [15.8], [15.13], [15.16], [17.18] Richmond v Morse (2004) V ConvR ¶58-573; [2003] VCAT 505 …. [23.40] — v Savill [1926] 2 KB 530; [1926] All ER Rep 362 …. [16.22] Richmond Football Club v Verrarty Pty Ltd [2011] VCAT 2104 …. [23.45], [23.46] Rickett v Green [1910] 1 KB 253 …. [1.14] Ricketts v Enfield Church Wardens [1909] 1 Ch 544 …. [12.3], [15.20] Riddington v Pye (1989) BPR 16,643 …. [19.2] Rider v Ford [1923] 1 Ch 541; [1923] All ER Rep 562 …. [14.9] Ridley v De Geerts [1945] 2 All ER 654 …. [13.4] Rigg v Lee Loy Seng [1987] WAR 333 …. [16.30] Riggs, Re [1901] 2 KB 16 …. [7.12], [15.16], [18.4] Riggs, Re; Ex parte Lovell [1901] 2 KB 16 …. [19.6] Right d Fischer v Cuthell (1804) 5 East 491; 102 ER 1158 …. [20.9] — v Darby (1786) 99 ER 1029 …. [2.3] Riley (Inspector of Taxes) v Coglan [1967] 1 WLR 1300 …. [6.5] Riltang Pty Ltd v L Pty Ltd (2004) 12 BPR 22,347 …. [14.8] Ring v RW & CD Investments Pty Ltd [2004] NSWC 1045 …. [14.10] Ripka Pty Ltd v Maggiore Bakeries Pty Ltd [1984] VR 629 …. [6.10], [16.28], [16.29]

Rippon v Chilcotin (2001) 53 NSWLR 198 …. [23.62] Riverlate Properties Ltd v Paul [1975] Ch 133; [1974] 2 All ER 656 …. [6.8] Riverside Property Investments Ltd v Blackhawk Automotive [2005] 1 EG 94 …. [10.8] Roadshow Entertainment Pty Ltd v ACN 053 006 269 Pty Ltd Receiver & Manager Appointed (Formerly CEL Home Video Pty Ltd) (1997) 42 NSWLR 462 …. [16.30] Robert John Pty Ltd, Ex parte; Fostars Shoes Pty Ltd, Re [1963] NSWR 419; [1963] SR (NSW) 260 …. [1.3], [1.4] Robert MC Brown & Partners Pty Ltd v Permanent Trustee Co Ltd [1996] …. [11.8] Robert Stephenson and Co Ltd, Re [1915] 1 Ch 802; [1914–15] All ER Rep 1107 …. [15.19] Robert v Besford [1990] V ConvR ¶54-383 …. [25.2] Roberts v Birkley (1888) 14 VLR 819 …. [1.6], [8.4], [14.1] — v Church Commissioners for England [1972] 1 QB 278; [1971] 3 All ER 703 …. [1.10], [19.6] — v Davey (1833) 4 B & Ad 664; 110 ER 606; [1824–34] All ER Rep 290 …. [17.4], [17.7], [17.10] — v Ghulam Nabie (1911) 2 KB 16 …. [7.2] Robertson v Lagreg Investments Pty Ltd [2004] VSC 86 …. [14.4] — v Unique Lifestyle Investments Pty Ltd [2007] VSCA 29 …. 4.2 — v Wilson (1958) 75 WN (NSW) 503 …. [6.10] Robinson v Day (1992) 106 FLR 423 …. [6.5] — v Harman (1848) 1 Exch 850; 154 ER 363 …. [10.13], [13.4], [13.15], [16.30] — v Hudson (1950) 68 WN (NSW) 9 …. [6.6], [15.2] — v Kilvert (1889) 41 Ch D 88 …. [8.5] — v Kingsmill (1954) 71 WN (NSW) 127 …. [16.11], [16.14], [16.17], [16.18] — v Learoyd (1840) 7 M & W 48; 151 ER 673 …. [17.17]

— v Young [2005] NSWSC 777 …. [4.8], [6.8] Robyn Toogood Real Estate Pty Ltd v Healey [2008] …. [23.15] Roche v Norman; Ex parte Norman [1958] QWN 11 …. [20.21] Rock Bottom Fashion Market Pty Ltd (in liq) v HR & CE Griffiths Pty Ltd [1997] …. [25.11] — v HR & CE Griffiths Pty Ltd [1998] ANZ ConvR 549; (1998) Q ConvR ¶54-505 …. [17.17] Rock Freehold Land Co v Cunliffe (1894) …. [11.28] Rodenhurst Estates Ltd v W H Barnes Ltd [1936] 2 All ER 3 …. [1.15], [15.17] Roe d Bendall v Summerset (1770) 2 Wm Bl 692; 96 ER 407 …. [5.18] Roe d Blair v Street (1834) 2 Ad & El 329; 111 ER 127 …. [20.27] Roe d Dean of Rochester v Pierce (1809) Camp 96; 170 ER 1093 …. [20.11], [20.13] Roebuck v Mungovin [1994] 1 All ER 568 …. [1.15] Rogers v Fry [1930] VLR 134 …. [22.3] — v Hosegood [1900] 2 Ch 388 …. [12.3], [15.20] — v Moonta Town Corporation (1981) 37 ALR 49 …. [23.63] — v Rice [1892] …. [19.4], [19.6] — v Ventura [1955] VLR 139 …. [5.15] Rogowski v Bedelis Investments (2001) V ConvR ¶58-562 …. [23.12], [23.35], [23.57] Rojain Pty Ltd v Ambrose [1986] VR 449 …. [3.8], [15.17] Rom Securities Ltd v Rogers (Holdings) Ltd (1967) 205 EG 427 …. [4.1] Romulus Trading Co Ltd v Comet Properties Ltd [1996] EGLR 70 …. [8.5] Rooney, Ex parte (1873) 11 SCR (NSW) 381 …. [3.9] Roos v Pilgrim (1951) 51 SR (NSW) 174 …. [16.20] Roquin Office Services Pty Ltd v Tingdale Pty Ltd (1997) …. [12.9] Rosa Investments Pty Ltd v Spencer Shier Pty Ltd [1965] VR 97 …. [16.30], [17.7], [17.9], [17.10], [20.1], [22.3]

Rose v Hyman [1911] …. [19.4] — v Spicer [1911]; Rose v Hyman [1911] 2 KB 234 …. [19.4], [19.5] Roseburn Pty Ltd v Eastride Pty Ltd [2009] QSC 159 …. [25.5] Ross (Earl) v Worsop [1740] 1 Bro Parl Cas 281; 1 ER 568 …. [14.11] Ross T Smyth & Co Ltd v T D Bailey, Son & Co (1940) 3 All ER 60 …. [16.33], [16.34] Ross v Robinson (1886) 12 VLR 764 …. [13.4] Rosser v Austral Wine & Spirit Co Pty Ltd [1980] …. [4.5] Ross-Hart Pty Ltd v Cianjan Pty Ltd [2009] VCAT 829 …. [23.12] Rossiter v Miller (1878) 3 App Cas 1124 …. [4.1] Rotorua and Bay of Plenty Hunt Club v Baker [1941] NZLR 669 …. [5.13] Rourke v Victorian Finance etc Co Ltd (1894) 20 VLR 8 …. [20.14] Rous v Mitchell [1991] 1 WLR 469 …. [18.6], [20.1] Rousset v Antunovich [1963] WAR 52 …. [5.17] Rowand v Equity Trustees Executors & Agency Co Ltd (1896) 22 VLR 1 …. [5.17], [5.18] Rowlands v Producers and Citizens Co-operative Assurance Co Ltd (1950) 51 SR (NSW) 164 …. [3.5] Rowley v Ginnever [1897] 2 Ch 503 …. [14.8] Rowston v Sydney County Council (1954) 92 CLR 605; 71 WN (NSW) 190 …. [2.11], [20.2], [20.5] Roxburghe v Cox (1881) 17 Ch D 520 …. [7.4] Royal Bank of Canada v Oram, Rowberry and Hoggard (1978) 1 WWR 564 …. [6.8] Royal Bank of Scotland plc v Jennings [1997] …. [11.5], [11.7] Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45; 186 ALR 289; [2002] ANZ ConvR 192 …. [6.5], [23.62] Royal British Bank v Turquand (1856) 6 E & B 327; 119 ER 886 …. [5.8] Royal Philanthropic Society v County [1985] 2 EGLR 109 …. [3.5]

Ruby v Marsh (1975) 132 CLR 642 …. [16.32] Ruffy Investments v Payless Superbarn [1999] VSC 458 …. [13.11] Rugby School v Tannahill [1934] All ER Rep 187; [1935] 1 KB 87 …. [18.7] — v —; Dunraven Securities Ltd v Holloway [1982] 2 EGLR 47 …. [18.7] Rush v Matthews [1926] KB 492 …. [11.2] Russell Cowan Pty Ltd v Bussell (1956) 56 SR (NSW) 300 …. [20.15] Russell v Beecham [1924] 17 Ch D 520; [1924] 1 KB 525; [1923] All ER Rep 318 …. [7.2], [15.16] — v Parkinson (1869) 6 WW & a’B (L) 264 …. [17.18] Russfam Pty Ltd v Benassi’s Shoes Pty Ltd (1999) V ConvR ¶58-533 …. [23.12] Ruxley Electronics and Constructions Ltd v Forsyth [1994] 3 All ER 801; [1994] 1 WLR 650 …. [10.13] — v — [1996] 1 AC 344 …. [10.13] Ryal v Rich (1808) 10 East 48; 103 ER 693 …. [17.17] Ryan v Clarke (1849) 14 QB 65 …. [1.16] — v Textile Clothing & Footwear Union of Australia [1996] 2 VR 235 …. [6.6] Ryde Joinery Pty Ltd (Administrators appointed) v Zisti (1997) 7 BPR 15,233 …. [15.20] Rye v Rye [1962] AC 496; [1962] 1 All ER 146 …. [1.2], [5.14], [16.8] Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65 …. [6.5] Ryley v Hicks (1725) 1 Str 651; 93 ER 760 …. [1.6], [4.3] S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd (1994) 122 ALR 637 …. [1.15], [4.8], [13.1], [14.6], [19.1] S Kaprow & Co Ltd v Maclelland & Co Ltd [1948] 1 KB 618 …. [16.30] S&A Gallo Pty Ltd v Hollowood Pty Ltd [2012] SASC 176 …. [27.12] Saade v Vergados [1996] NSWCA 463 …. [16.30] Sabelberg v Scott (1879) 5 VLR (L) 414 …. [16.21]

Sabri v Selby [2004] NSWADT 252 …. [24.20] Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd [1976] 1 NSWLR 5 …. [15.20], [16.30] Sackville v Mansard Developments Pty Ltd (1981) …. [12.12] St Martins House Pty Ltd v Law Society of NSW (1983) …. [11.6] St Marylebone Property Co Ltd v Fairweather [1963] …. [16.3], [16.11], [16.14] Sale v Kitchingham (1713) 88 ER 673 …. [15.19] Saloma Pty Ltd v Big Country Developments Pty Ltd (1997) …. [11.9] Samios v Petersilka (1993) 113 FLR 63 …. [20.2], [20.5], [20.7] Sampson v Easterby (1829) 9 B & C 505 …. [7.1] — v Floyd (1989) 10 CL 229; 33 EG 41 …. [13.15], [16.34] — v Hodson Pressinger [1981] 3 All ER 710 …. [7.14], [8.4] — v Hodson-Pressinger (1984) 12 HLR 40; (1982) 261 EG 891 …. [13.15] Samrose Properties Ltd v Gibbard [1958] 1 WLR 235 …. [11.2] Samuel Properties (Developments) Ltd v Hayek [1972] 1 WLR 1064 …. [14.6], [14.11] — v — [1972] 1 WLR 1296 …. [11.6], [14.6], [14.8], [14.11] Samuel v Salmon & Gluckstein Ltd [1946] Ch 8 …. [11.1] Sanar v Bilton [1878] 1 Ch D 815 …. [10.10] Sanctuary Lakes Real Estate Pty Ltd v Sanctuary Lakes Centre Pty Ltd [2007] VCAT 2292 …. [23.18], [23.58] Sanders v Cooper [1974] WAR 129 …. [11.13], [11.28], [14.8] — v Wadham (1870) 4 SALR 73 …. [17.5], [17.6] Sanderson v Mayor of Berwick-on-Tweed (1884) 13 QBD 547 …. [8.4] Sandher v Ferizis (1994) …. [11.20] Sandhurst & Northern District Trustees v Canavan [1908] VLR 373 …. [17.10], [17.14], [19.3] Sandhurst Mutual Permanent Investment Building Society v Gissing (1889) 15 VLR 329 …. [2.17]

Sandhurst Trustees Ltd v Australian Country Cinemas Pty Ltd [2006] QSC 165 …. [14.4] Saner v Bilton (1878) 7 Ch D 815; [1874–80] All ER Rep Ext 1586 …. [10.7], [10.8] Sangora Holdings Pty Ltd v Jones (1996) …. [11.28] Sangster v Noy (1867) 16 LT 157 …. [20.27] Sanwa Australia Leasing Ltd v National Westminster Finance Australia (1989) NSW ConvR 55-437 …. [10.5] Sapphire Salon (Vic) Pty Ltd v Causeway House Pty Ltd (1989) V ConvR ¶54-333 …. [20.5] Saratoga Australia Pty Ltd v Vision Australia Ltd [2007] VCAT 1902 …. [23.13] Sargent v ASL Developments Ltd (1974) 131 CLR 634; 4 ALR 257 …. [16.30], [16.31], [16.34] Sarson v Roberts [1895] 2 QB 395 …. [8.6] Sassoon & Sons Ltd v International Banking Corp [1927] AC 711 …. [6.5] Satellite Estate Pty Ltd v Jaquet (1968) 71 SR (NSW) 126 …. [16.34] Saunderton Glebe Land, Re [1903] 1 Ch 480 …. [7.14] Sauter v Sangster (1950) 68 WN (NSW) 74 …. [3.4] Saviane v Stauffer Chemical Co (Australia) Pty Ltd [1974] 1 NSWLR 665 …. [10.12] Savile Settled Estates, Re [1931] 2 Ch 210; [1931] All ER Rep 556 …. [16.19] Savva v Houssein [1996] 47 EG 138 …. [18.7] Sawyer & Withall, Re [1919] 2 Ch 333 …. [1.12], [11.1] Say v Smith (1530) 1 Plowd 269; 75 ER 410 …. [1.2] Scala House and District Property Co Ltd v Forbes [1974] QB 575; [1973] 3 All ER 308 …. [18.7] — v — [1974] …. [15.2], [15.16], [18.7] Scammell & Nephew Ltd v Ouston [1941] AC 251 …. [7.16]

Scandi International Pty Ltd v Varga Group Investment (No 8) Pty Ltd [2001] NSWSC 21 …. [1.15] Scanlan’s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169 …. [6.10] Scanlon v Campbell (1911) 11 SR (NSW) 239 …. [17.21] Scarcella v Linknarf Management Pty Ltd [2004] NSWSC 1168 …. [16.28] — v — (2005) NSW ConvR 56-106 …. [15.9] Scarf v Jardine (1882) 7 AC 345; 7 App Cas 345 …. [16.30], [17.18] Schalit v Joseph Nadler Ltd [1933] …. [20.8] — v Nadler Ltd [1933] 2 KB 79; [1933] All ER Rep 708 …. [15.19] Schenker & Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd [1990] VR 834 …. [6.4] Schilling v Riley [1946] VLR 73 …. [16.28] Schmit v Christy [1922] 2 KB 60 …. [16.19] Schnabel v Allard [1967] 1 QB 627; [1966] 3 All ER 816 …. [20.4], [20.5] Schnitzel World Pty Ltd v Yung Chon Pty Ltd [2010] QCAT 474 …. [25.6] Scientific Management Associates (Aust) Pty Ltd v Australian Capital Territory [1999] …. [11.28] Scott & Sally Dixon Investment Co Pty Ltd (in liq) and Ors v Woakwine Industries Pty Ltd [2002] SASC 161 …. [10.5] Scott v Commr of Stamp Duties [1939] NZLR 293 …. [11.1] — v Matthew Brown & Co (1884) 51 LT 746 …. [19.5] — v Skinner [1947] NZLR 528 …. [14.4] — v Windsor Holdings Pty Ltd (1986) ATPR 40-737 …. [12.9] Scruby v Hoggan (1954) 55 SR (NSW) 2 …. [20.8] SEAA Enterprises Pty Ltd v Figgins Holdings Pty Ltd (1996) V ConvR ¶54538 …. [15.20] — v — [1998] 2 VR 90 …. [7.4] — v — (1999) 196 CLR 245 …. [5.16] — v Ponti’s Enterprises Pty Ltd [1999] VSC 190 …. [19.1], [19.3] Seabrook v McMullan (1908) 10 WALR 47 …. [15.16], [15.19]

Seacrest Pty Ltd v Apriaden Pty Ltd (2000) V ConvR ¶54-625 …. [23.30], [23.31] Searl v South British Insurance Co [1916] NZLR 137 …. [10.1] Secure Parking (WA) Pty Ltd v Wilson [2005] WASC 264 …. [15.5], [15.16], [26.8], [27.16] Secured Income Real Estate (Australia) Limited v St Martins Investments Pty Ltd (1979) 144 CLR 596; 26 ALR 567 …. [6.6], [6.9], [15.11], [15.12], [15.13], [15.14] SEDAC Investments Ltd v Tanner [1982] 1 WLR 1342 …. [18.6] Seers v Hind (1791) 1 Ves Jun 294; 30 ER 351 …. [15.16] Segal Securities Ltd v Thoseby [1963]] 1 QB 887; 1 All ER 500 …. [17.18] Seguin v Anglican Church Property Trust Diocese of Sydney (No 1) [2004] NSWADT 146 …. [24.2] Seka Pty Ltd (in prov liq) v Fabric Dyeworks (Aust) Pty Ltd (1991) 28 FCR 574 …. [16.36] Sellars v Adelaide Petroleum (1994) 179 CLR 332 …. [10.13] Selous Street Properties Ltd v Oronel Fabrics Ltd (1984) 1 EGLR 50 …. [11.9], [15.18] — v — (1985) The Times, 3 March …. [15.18] Selsey v Rhoades (1824) 2 S & S 41; 57 ER 260 …. [5.13] Selwyn v Garfit (1888) 38 Ch D 273 …. [17.18] Serbian Orthodox Ecclesiastic School Community v Vlaislavljevic [1970] Qd R 386 …. [22.3] Serene Hotels Pty Ltd v Epping Hotels Pty Ltd [2015] VSCA 228 …. [23.40] Serjeant v Nash Field & Co [1903] 2 KB 304; [1900–3] All ER Rep 525 …. [17.4], [17.7], [17.9], [17.10], [17.12], [17.13], [19.6] Service Station Association Limited v Berg Bennett and Associates Pty Ltd (1993) 117 ALR 393 …. [23.62] Setena Pty Ltd v Permanent Trustee Nominees (Canberra) Ltd (1987) NSW ConvR ¶55-322 …. [14.8] Sewell v Donald & Sons Ltd [1917] NZLR 408 …. [20.21]

Shaltock v Harston (1875) 1 CPD 106 …. [1.14] Sharjade v Commonwealth (2010) 15 BPR 28,443 …. [18.2] Sharma v The Magistrates’ Court of Victoria (SC(Vic), unreported, Beach J, 18 December 1995) …. [19.2] Sharman v McIntosh (1951) 68 WN (NSW) 16 …. [3.8] Sharp v Milligan (1856) 22 Beav 606; 52 ER 1242 …. [5.12] — v — (No 2) (1857) …. [9.3] — v O’Driscoll (1997) …. [23.18] — v Union Trustee Co of Australia Ltd (1944) 69 CLR 539 …. [14.8] Shaw v Groom [1970] 2 QB 504; 1 All ER 702 …. [6.9], [11.18] — v Kay (1847) 1 Ex 412; 154 ER 175 …. [1.5], [1.10] — v Port [1953] VLR 386 …. [15.17], [16.13] Shaw’s Trusts, Re (1871) LR 12 Eq 124 …. [5.17] Sheill v Symonds [1951] SASR 82 …. [6.10] Shell Co of Australia Ltd v Lang Estate Pty Ltd [1975] 2 NSWLR 63 …. [7.16] — v Zanelli [1973] 1 NSWLR 216 …. [16.9] Shell-Mex and BP Ltd v Manchester Garages Ltd [1971] 1 All ER 481; [1971] 1 WLR 612 …. [1.4], [3.6] Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 …. [16.30] — v Lomas [1963] 2 All ER 902; [1963] 1 WLR 962 …. [18.6] Sheppard v Hong Kong and Shanghai Banking Corp (1872) 20 WR 459 …. [15.9], [15.13] Sheralex Nominees Pty Ltd v Johnson Taylor & Co Pty Ltd (1994) …. [11.5] Sherwood v Tucker (1924) 2 Ch 440 …. [14.1] Shevill v Builders Licensing Board (1982) 147 CLR 620; 42 ALR 305 …. [1.2], [6.10], [16.26], [16.28], [16.29], [16.35], [17.6], [23.64], [23.65] Shiell v Symons [1951] SASR 82 …. [6.10] Shiloh Spinners Ltd v Harding [1973] AC 691; [1973] 2 WLR 28 …. [3.8], [14.11], [15.20], [17.19], [19.1], [19.2], [19.4], [19.5]

Shirlcar Properties Ltd v Heinitz [1983] …. [11.9] Shore v Wilson (1842) 9 Cl & F 355 …. [6.6] Showa Shoji Australia Pty Ltd v Oceanic Life Ltd (1994) 34 NSWLR 548 …. [1.6], [4.3], [11.8], [14.8], [15.20] Shree Sai Charan Pty Ltd v North Indian Flavour (Broadway) Pty Ltd and Bobby Singh [2011] NSWADT 95 …. [24.6] Siddons Pty Ltd v Stanley Works Pty Ltd (1991) 29 FCR 14 …. [12.9], [24.3], [25.13], [26.3], [27.3], [28.3] Sidebotham v Holland [1895] 1 QB 378; [1891–4] All ER Rep 617 …. [2.8], [16.19], [20.7], [20.17] Sidney Trading Co Ltd v Finsbury Corporation [1952] 1 TLR 512 …. [11.1] Siggers v Scott (1951) 68 WN (NSW) 131 …. [16.18] Sigma Constructions (Vic) Pty Ltd v Maryvell Investments Pty Ltd [2004] VSCA 242 …. [23.65], [23.66] Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 …. [1.15] Sim v Rotherham Metropolitan Borough Council [1987] 2 NSWLR 63 …. [7.4] Simic v New South Wales Land and Housing Corp (2016) 339 ALR 200; (2016) 91 ALJR 108 …. [6.8] Simjanovksi v Maribyrnong Views Pty Ltd (2000) V ConvR ¶54-628 …. [19.2] Simmons v Lee [1998] 2 Qd R 671 …. [15.20] — v Liristis Holdings Pty Ltd (SC(NSW), Smart AJ, 7 February 2000, unreported) …. [2.19] — v Tuck [1918] GLR 736 …. [16.28] Simons v Associated Furnishers Ltd [1931] 1 Ch 379, [1930] All ER Rep 427 …. [14.6] Simpson v Dunedin Drill Shed Commissioners (1885) 3 NZLR 402 …. [5.8] Sina Holdings Ltd v Westpac Banking Corporation [1995] 1 NZLR 1 …. [28.15] Sinclair Scott and Co Ltd v Naughton (1929) 43 CLR 310 …. [4.1]

Sindel v Georgiou (1984) 154 CLR 661 …. [4.1] Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd (1991) 104 ALR 633 …. [26.10] Singman v Lyons [1922] VLR 719 …. [17.7] Sir Roger Cholmeley’s School at Highgate (Warden, etc) v Sewell [1893] 2 QB 254; [1894] 2 QB 906 …. [19.6] Skiperch Pty Ltd v Mocom Systems Pty Ltd (1995) …. [11.20] Skiwing Pty Ltd v Trust Company of Australia Ltd [2005] NSWADT 188 …. [24.17] — v — [2006] NSWCA 276 …. [24.14], [24.15], [28.12] Skylark Pty Ltd v Penhale Pty Ltd (SC(NSW), Cohen J, 3 December 1986, unreported) …. [10.5] Slater v Hoskins [1982] 2 NZLR 541 …. [8.4], [13.15], [18.4] Sleafer v Lambeth Metropolitan BC [1960] 1 QB 43; [1959] 3 All ER 378 …. [10.1] Sleeman v Colonial Distributors Ltd [1956] NZLR 188 …. [10.13], [15.19] Slipper v Tottenham and Hampstead Junction Railway (1867) LR 4 Eq 112 …. [7.12] Slough Picture Hall Co Ltd v Wade (1916) 32 TLR 542 …. [16.3] Small Business Commissioner Reference for Advisory Opinion, Re [2015] VCAT 478 …. [23.44], [23.48], [23.49] Smirk v Lyndale Developments Ltd [1975] Ch 317 …. [2.18] Smith & Stott, Re (1883) …. [11.27] Smith, Ex parte (1924) 24 SR (NSW) 470 …. [20.27] Smith, Ex parte; Re Robertson (1947) 48 SR (NSW) 29 …. 20.27 Smith v Clark (1840) 9 Dowl 202 …. [20.27] — v Jones [1954] 1954 2 All ER 823 …. [6.8], [7.4] — v Kinsey [1936] 3 All ER 73 …. [20.16] — v Lush (1952) 52 SR (NSW) 207 …. [4.4] — v Marrable (1843) 11 M & W 5; 152 ER 693 …. [8.6]

— v Mather [1948] 2 KB 212; [1948] 1 All ER 704 …. [16.20] — v Metropolitan City Properties Ltd [1986] 1 EGLR 52 …. [19.1] — v Northside Developments Ltd [1987] 2 EGLR 151 …. [1.4] — v Nottinghamshire County Council (1981) Times, 13 November …. [3.1] — v Parkes (1852) 16 Beav 115 …. [7.4] — v Richards [1951] …. [15.10], [15.13] — v Scott [1972] 3 WLR 783; [1973] Ch 314 …. [7.14] — v Scott [1973] Ch 314 …. [8.4] — v Smith (1950) 45 QJPR 49 …. [20.3] — v Trust Company of Australia Ltd [2008] NSWADT 10 …. [24.6] Smith’s Lease, Re; Smith v Richards [1951] 1 All ER 346 …. [15.10], [15.13] Soames v Edge [1860] John 669; 70 ER 588 …. [13.7] — v Nicholson [1902] 1 KB 157 …. [20.5] Sofos v Coburn (1992) V ConvR ¶54-439 …. [23.18] Solomon v Bray (1873) 7 SALR 128 …. [2.10], [2.11] — v Winkler [1922] SASR 428 …. [7.12] Solowave Pty Ltd v Nechi Holdings Pty Ltd [2005] NSWSC 837 …. [19.5] Sorrell v Finch [1977] AC 728 …. [4.1] Sotheby v Grundy [1947] 2 All ER 761 …. [10.8] Soulsby v Neving (1808) 9 East 310; 103 ER 592 …. [17.17] South Suburban Land Co Ltd v Hughes (1889) 15 VLR 308 …. [13.8] South Tottenham Land Securities Ltd v R & A Millett (Shops) Ltd [1984] …. [11.7] Southern Cross Pumps and Irrigation Pty Ltd v Nicholls (1995) 39 NSWLR 501 …. [10.5] Southport Tramways Co v Gandy [1897] 2 QB 66 …. [17.17] Southwark London Borough Council v Baxter [2001] 1 AC 1; [1999] 4 All ER 449;[1999] 1 WLR 939 …. [8.4] Southwark LBC v Mills [1999] 4 All ER 449 …. [7.14]

— v Tanner [2001] 1 AC 1 …. [13.15] — v — [2001] …. [8.4] Sowler v Potter [1940] 1 KB 271; [1939] 4 All ER 478 …. [6.9] Spathis v Havane Investment Co Pty Ltd [2002] NSWSC 304 …. [8.1], [8.4] Specktor v Lees [1964] …. [11.28] Spectra Pty Ltd v Pindari Pty Ltd [1974] 2 NSWLR 617 …. [14.3], [14.9] Spencer’s case (1583) 5 Co Rep 16a; 77 ER 72; [1558–1774] All ER Rep 68 …. [15.18], [15.20] Sperry Rand Australia Ltd v Arrandale Properties Pty Ltd [1979] VR 409 …. [14.1], [14.6] Spicer v Martin (1888) 14 App Cas 12; [1886–90] All ER Rep 461 …. [16.3] Spinks v Mundy [1957] St R Qd 234 …. [16.18] Sportsvision Australia Pty Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103 …. [4.2], [6.4] Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290 …. [6.4], [6.5], [6.6], [6.8], [14.3] Spyer v Phillipson [1931] 2 Ch 183; [1930] All ER Rep 457 …. [10.5] St George Bank Ltd v JB (Northbridge) Pty Ltd (2009) 262 ALR 538 …. [14.6] St Marylebone Property Co Ltd v Fairweather [1963] …. [16.3] Stack v Cameron [1941] St R Qd 284 …. [15.14] Stait v Fenner [1912] 2 Ch 504; [1911–13] All ER Rep 232 …. [20.7] Standard Life Assurance v Unipath Ltd [1997] …. [11.4] Standard Pattern Co Ltd v Ivey [1962] Ch 432 …. [19.3] Stanhope v Haworth (1886) 3 TLR 34 …. [19.2] Stanley v Ward (1913) 29 TLR 714 …. [15.11], [15.13], [15.14] Starline Drive Inn Theatre Ltd v Commissioner of Taxation (1964) 112 CLR 458 …. [10.5] Starline Furniture Pty Ltd (In Liq), Re (1982) 6 ACLR 312 …. [10.5] Starmark Enterprises Ltd v CPL Distribution Ltd [2002] …. [11.6]

Starr v Barbaro (1986) NSW ConvR ¶55-315 …. [1.15], [5.8] — v — (1986) 4 BPR 9137 …. [1.15] Starside Properties Ltd v Mustapha [1974] 1 WLR 816; [1974] 2 All ER 567 …. [19.5] State of New South Wales v Watton (1999) NSW ConvR ¶55-885 …. [10.1] State of Victoria v Tymbook Pty Ltd [2005] VSC 267 …. [23.64] State Rail Authority of NSW v Ferreri (1990) NSW ConvR¶55-512 …. [6.8] — v Health Outdoor Pty Ltd (1986) 7 NSWLR 170 …. [6.4] Statham v Liverpool Dock Co (1830) 3 Y & J 565; 148 ER 1304 …. [14.11] Steadman v Steadman [1976] AC 536 …. [4.5], [4.7], [16.18] Stedman v Shaw (1970) 91 WN (NSW) 190 …. [16.19] Steedman v Golden Fleece Petroleum Ltd (1986) ATPR ¶40-060 …. [12.9] Stellar Mining NL v Evanel Pty Ltd (1983) NSW ConvR 55-118 …. [14.6] — v — (SC (CA), NSW, 13 February 1983, unreported) …. [14.1] Stent v Monmouth District Council [1987] 1 EGLR 59 …. [10.8] Stephens v Gerandu Pty Ltd [2004] VCAT 1350 …. [23.41] — v Money (1893) 11 NZLR 775 …. [10.9] Stephenson v Morgan (1963) 80 WN (NSW) 1719 …. [3.4] Stern v McArthur (1988) 165 CLR 489; 81 ALR 463 …. [3.8], [4.8], [19.1] Steve Christenson and Co Ltd v Furs and Fashions (NZ) Ltd [1971] NZLR 129 …. [16.17] Stevens v Copp (1868) LR 4 Ex 20 …. [15.20] Stevenson & Sons Ltd v Brind (1895) …. [5.18] Stevenson v Mayor of North Melbourne (1890) 16 VLR 314 …. [2.19] — v — (1890) 21 VLR 109 …. [2.19] Stewart, Re; Ex parte Overells Pty Ltd [1941] St R Qd 175 …. [16.18], [17.10] — v Alliston (1815) 1 Mer 26; 35 ER 587 …. [1.12], [11.1] — v Goldman & Co Pty Ltd (1947) 64 WN (NSW) 155 …. [1.9], [20.8]

Stickney v Keeble [1915] …. [11.6] Stieper v Deviot Pty Ltd [1977] 2 BPR 9602 …. [19.2], [19.4] Stillwell Trucks Pty Ltd v Nectar Brook Investments Pty Ltd (1993) 115 ALR 295; 10 ACSR 615 …. [6.4] Stockley v Knowsley Metropolitan Borough Council [1986] 2 EGLR 141 …. [10.1] Stodden v Harvey (1608) Cro Jac 204; 79 ER 178 …. [16.36] Storer v Great Western Railway Co (1842) 2 Y & C Ch Cas 48; 63 ER 21 …. [10.13] Stormriders Pty Ltd v Copperart Pty Ltd (2005) NSW ConvR ¶56-110 …. [6.8] Story v Madders (1883) 9 VLR (L) 150 …. [20.5], [20.21] Strachan & Co Ltd v Lyall & Sons Pty Ltd [1953] VLR 81 …. [4.6] Strand and Savory Properties Ltd, Re [1960] Ch 582; [1690] 2 All ER 327 …. [1.10] Strang Patrick Stevedoring Pty Ltd v James Patrick and Co Pty Ltd (1993) …. [11.20] Strang v Gray (1952) 55 WALR 9 …. [10.13] Stratford v Syrett [1958] 1 QB 107; [1957] 3 All ER 363 …. [20.8] Stratton Finance Pty Ltd v Webb (2014) 314 ALR 166 …. [6.5] Straudley Investments Ltd v Barpress Ltd [1987] 1 EGLR 69 …. [6.5] Streatfeld v Winchcombe Carson Trustee Co (Canberra) Ltd [1981] 1 NSWLR 519 …. [1.4], [1.5] Street v Mountford [1985] AC 809 …. [1.3], [1.4], [1.5], [1.7], [1.12], [2.2], [3.2], [3.3], [3.4], [3.5], [15.3] Stremo Pty Ltd v Opal Collections Pty Ltd [2011] QCATA 129 …. [25.8] Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 486 …. [12.2] Stringer v Gilandos Pty Ltd [2012] VSC 361 …. [23.19], [23.21], [23.23] Stroud Building Society v Delamont [1960] 1 All ER 749 …. [5.16] Strzelecki Holdings Pty Ltd v Bogdanis Nominees Pty Ltd [2002] WASC 62

…. [26.14] Stuart v Marshall (1958) 75 WN (NSW) 252 …. [3.4] Sturcke v S W Edwards (1971) 23 P & CR 185 …. [10.6] Styles & Co v Richardson (1915) 17 WALR 81 …. [2.8] Stylo Shoes Ltd v Prices Tailors Ltd [1960] Ch 396 …. [18.10] — v Wetherall Bond Street W1 Ltd [1976] …. [11.6] Sudbrook Trading Company Ltd v Eggleton [1982] 3 WLR 315 …. [14.1], [14.7] — v — [1983] 1 AC 444 …. [4.8], [14.1], [14.3], [14.7] Suisse Atlantique Societe d’Armement Maritime SA v N V Rotterdamsche Kolen Centrale [1967] 1 AC 361 …. [16.35] Sullivan v Hall Russell & Co Ltd [1964] SLT 192 …. [25.2] — v Ison (4 All ER 449) …. [7.14] Summit Properties Pty Ltd v Comserv (No 784) Pty Ltd (1981) 2 BPR 9173 …. [4.1] Sunbird Plaza Pty Ltd v Maloney (1988) 77 ALR 205; 62 ALJR 195 …. [16.32] Sunrose Ltd v Gould [1961] 3 All ER 1142; [1962] 1 WLR 20 …. [20.17], [20.20], [20.26] Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd [1991] 2 Qd R 210 …. [6.7], [7.16] Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 53 ALJR 614 …. [24.2], [25.2] Surplice v Farnsworth (1844) 4 All ER 449 …. [7.4] Sutcliffe v Chief Constable of West Yorkshire (CA(UK), 19 May 1995, unreported) …. [16.36] Sutherland (Dowager Duchess) v Sutherland (Duke) [1883] 3 Ch 169 …. [5.19] Sutherland Shire Council v James [1963] NSWR 1573; 63 SR (NSW) 273 …. [5.8] Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 …. [16.30]

Svenson v Payne (1945) 71 CLR 531 …. [5.17] Swain v Ayres (1888) 21 QBD 289 …. [4.1] Swainland Builders Ltd v Freehold Properties Ltd [2002] 2 EGLR 71 …. [6.8] Swan v Uecker [2016] VSC 313 …. [1.3], [1.4] Swanson v Forton [1949] Ch 143; [1949] 1 All ER 135 …. [13.16] Sweet & Maxwell Ltd v Universal News Services Ltd [1964] 2 QB 699; [1964] 3 All ER 30 …. [4.2], [9.2] Swift v Macbean [1942] 1 KB 375 …. [2.3] Swinburne v Milburn (1884) 9 App Cas 844 …. [14.2] Swinfen v Bacon (1861) 6 H & N 846; 158 ER 349 …. [17.17] Swintons Pty Ltd v Age Old Builders Pty Ltd (2005) …. [11.20] Sydney Eastman Pty Ltd v Southern [1963] NSWR 815; 80 WN (NSW) 458 …. [14.3] Sydney Harbour Casino Holdings Ltd v NMBE Pty Ltd (CA(NSW), 23 October 1998, unreported) …. [4.1] Sydney Real Estate & Investment Co Pty Ltd v Rich (1957) 74 WN (NSW) 427 …. [17.21] Sydney Markets Ltd v Wilson (2011) 16 BPR 30,583; [2011] NSWCA 201 …. [24.2] Sydney West Area Health Service v Staracek (2008) 73 NSWLR 68 …. [14.6] Sykes v Midland Bank Executor and Trustee Co [1971] 1 QB 113 …. [7.3], [10.8] — v Ranken (1971) EG 1005 …. [6.5] Sylvester v Ostrowska [1959] 1 WLR 1060 …. [18.6] Symmons Plains Pastoral Holdings Ltd v Tasmanian Motor Racing Co Pty Ltd (1996) 6 Tas R 284 …. [19.3] SYNBA Investments Pty Ltd v Brisbane City Council (1979) 50 LGRA 208 …. [11.1] Syntex Australia Ltd v Ray Teese Pty Ltd (CA 259/1996, delivered 6 Aug. 1996) …. [13.15]

T & E Homes Ltd v Robinson [1979] 1 WLR 452 …. [11.1] T Hyland Enterprises Pty Ltd v Alliance Acceptance Co Ltd (Powell J, 2 October 1984) …. [19.4] T P Rich Investments Pty Ltd v Cauldron (1964) 38 ALJR 43; [1964] NSWR 709 …. [6.9], [11.18] Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 …. [10.3], [10.8], [10.13] Tabtide Pty Ltd, Re [1989] 1 Qd R 604 …. [14.6] Taddeo v Catalano (1975) 11 SASR 492 …. [6.8] Tailby v Official Receiver (1888) 13 App Cas 523 …. [4.8] Taj Coffee Company Pty Ltd v Plaza Arcade [2009] WASAT 107 …. [26.8] Take Harvest Ltd v Liu [1993] AC 552; [1993] 2 All ER 459 …. [1.6], [2.7], [2.8], [16.11], [16.12], [16.13], [16.14], [16.15], [16.17], [16.18], [16.19] Talbot v Blindell [1908] 2 KB 114 …. [19.5] Talga Investments Pty Ltd v Tweed Canal Estates Pty Ltd (1974) 1 BPR 9675 …. [1.4] Tall-Bennett & Co Pty Ltd v Sadot Holdings Pty Ltd (1988) 4 BPR 97,295; NSW ConvR ¶55-428 …. [11.16], [16.30], [16.31] Tallerman & Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd (1957) 98 CLR 93 …. [14.10] Tamsco Ltd v Franklins Ltd (2001) 10 BPR 19,077 …. [15.6], [15.8], [15.9], [15.13] Tanham v Nicholson (1872) LR 5 HL 561 …. [20.27] Tannous v Cipolla Bros Holdings Pty Ltd (2001) 10 BPR 18,563 …. [11.3], [19.4] Tapoohi v Lewenberg (No 2) [2003] VSC 410 …. [23.62] — v Lewenberg (2004) …. [23.62] Targett v Torfaen Borough Council [1992] 1 EGLR 274 …. [10.7] Tashof v FCT (1970) 473 F 2d 707 …. [12.9] Tasita Pty Ltd v Sovereign State of Papua New Guinea (1991) 34 NSWLR 691 …. [16.17]

Tassoni v Steve; Ex parte Steve [1956] St R Qd 72 …. [20.7] Tatem v Chaplin (1793) 2 Hy Bl 133; 126 ER 470 …. [15.19] Tattersall’s Hotel Penrith Pty Ltd v Permanent Trustee Co of NSW (1942) 42 SR (NSW) 104 …. [17.10] Tayleur v Wildin (1868) 3 Ex 303 …. [20.33] — v Wildin (Freeman v Evans) [1922] 1 Ch 36 …. [20.33] Tay Salmon Fisheries v Speedie [1929] SC 593 …. [6.10] Taylor v Caldwell (1863) 3 B & S 826, [1861–73] All ER Rep 24 …. [6.10] — v Johnson (1983) 151 CLR 422; 45 ALR 265 …. [6.6], [6.8] — v Shum (1797) 1 Bos & P 21; 126 ER 755 …. [5.18] — v Webb [1937] 2 All ER 76; [1937] 2 KB 2833 …. [7.4], [10.11] Taylor Farms (Australia) Pty Ltd v A Calkos Pty Ltd [1999] NSWSC 186 …. [24.20] Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133 …. [1.15] Taylor Woodrow Property Co Ltd v Lonrho Textiles Ltd [1985] …. [11.6] Taylor Woodrow Property Co of Australia Pty Ltd v Coles Myer Ltd (1999) 9 BPR 17,449; NSW ConvR ¶55-912 …. [10.10] Taylor, Ex parte [1980] Qd R 253 …. [18.2], [18.4], [18.6] Te Peehi v Smith (1909) 29 NZLR 160 …. [5.15] Tea Trade Properties Ltd v CIN Properties Ltd [1990] 1 EGLR 155 …. [7.8] Technomin Australia Pty Ltd v Xstra Nickel Australasia Operations Pty Ltd [2014] WASCA 164 …. [6.5] Telado Pty Ltd v Vincent (1996) NSW ConvR ¶55-786 …. [1.6], [4.8] — v — (1996) 7 BPR 14,874 …. [4.8] Telex (Australasia) Pty Ltd v Thomas Cook & Son (Australasia) Ltd [1970] 2 NSWR 257 …. [13.15] Teller Home Furnishers Pty Ltd, Re [1967] VR 313 …. [15.18], [15.19], [16.25], [17.21], [26.8] Temptress Nominees Pty Ltd v Constantinou (2001) V ConvR ¶58-563 ….

[23.12], [23.36] Tennant v London County Council (1957) 55 LGR 421 …. [20.9] Tenstat Pty Ltd v Permanent Trustee Aust Ltd (1992) 28 NSWLR 625 …. [14.1], [14.5], [15.1], [15.20] Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2008] VSC 40 …. [18.3], [23.54] — v — [2012] VSCA 103 …. [17.8] Terceiro v First Mitmac Pty Ltd (1997) 8 BPR 15,733 …. [6.8] Tern Minerals NL v Kalbara Mining NL (1990) 3 WAR 486 …. [4.1] Terroni v Corsini [1931] 1 Ch 515 …. [10.13] Terry v Tindale (1882) 3 LR NSW 444 …. [1.5], [2.2] Thanes Pty Ltd v Custom Credit Corporation Ltd (1985) 5 BPR 97 …. [5.16] Thearle v Kelley (1958) 76 WN (NSW) 48 …. [6.10] Thermoplastic Foam Industries Pty Ltd v Imthouse Pty Ltd (1990) 5 BPR 97,334 …. [6.8] Thessaly Pty Ltd v Pelworth Pty Ltd (1991) 6 WAR 253 …. [26.4] Thetford Corporation v Tyler (1845) …. [11.28] THL Robina Glades v Glades Golf Club Pty Ltd [2005] 2 Qld R 286 …. [14.4] Thomas Bates & Son Ltd v Wyndham’s (Lingerie) Ltd [1981] 1 WLR 505 …. [6.8], [11.1], [11.8], [11.20], [14.7] Thomas Bishop Ltd v Helmville Ltd [1972] 1 All ER 365 …. [20.28] — v — [1972] 1 QB 464 …. [20.28] Thomas v Hayward (1869) LR 4 Ex 311 …. [15.20] — v R (1905) 2 CLR 127 …. [4.6] — v Sorrell (1674) Vaugh 330; 124 ER 1098 …. [1.2], [3.1] — v Thomas [1939] St R Qd 301 …. [5.17] Thompson v Anderson (1870) LR 9 Eq 523 …. [14.7] — v Cross [1954] VLR 635 …. [20.15], [20.16] — v Hakewill (1865) 144 ER 966 …. [5.15]

— v Leach (1698) 2 Salk 618; Show PC 150; [1558–1774] All ER Rep 39 …. [16.11] — v McCullough [1947] KB 447; 1 All ER 265 …. [20.8], [20.30] — v McIntosh (1953) 53 SR (NSW) 212 …. [20.20] — v Palmer (1933) 49 CLR 507 …. [1.15], [14.6] Thorburn v Buchanan (1871) 2 VR (L) 169 …. [16.2], [17.4], [17.18] Thorn v Martin (1960) 77 WN (NSW) 301 …. [2.2] Thorby v Goldberg (1964) 112 CLR 597 …. [1.5] Thorogood v Robinson (1845) 6 QB 769; 115 ER 290 …. [16.36] Threlfall, Re; Ex parte Queen’s Benefit Building Society (1880) 16 Ch D 274 …. [20.2] Thunder d Weaver v Belcher (1803) 3 East 449; 102 ER 669 …. [15.5] Tichborne v Weir (1892) 67 LT 735 …. [1.15], [15.17] Tierney Pty Ltd v Vanda W Holdings Pty Ltd (1997) V ConvR ¶54-570 …. [23.21] Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd (2010) 14 BPR 27,605 …. [6.10] — v Narui Gold Pty Ltd (2010) 15 BPR 28,857 …. [18.2] Timber Top Realty Pty Ltd v Mullens [1974] VR 312 …. [4.7] Timmins v Rowlinson (1765) 3 Burr 1603; 97 ER 1003 …. [17.17] Ting v Blanche (1993) 118 ALR 543; ATPR ¶41-282 …. [12.9] TJ Watkins Ltd v Cairns Meat Export Co Pty Ltd [1963] Qd R 21 …. [6.5] TNT (Melbourne) v May & Baker (Aust) Pty Ltd (1966) 125 CLR 353 …. [16.36] Todburn Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 11,173; [1990] ANZ ConvR 567 …. [23.11] — v — (1990) 5 BPR 97,333 …. [2.15], [4.1], [4.8], [8.4], [11.1], [13.15], [14.1], [14.5], [16.28], [16.34], [16.35], [23.11] Tod-Heatley v Benham (1888) 1 EGLR 155 …. [7.14] Toler v Slater (1867) 3 QB 42 …. [11.1]

Toll (FGCT) v Alphapharm (2004) 219 CLR 165 …. [4.2], [6.4] Tollbench Ltd v Plymouth City Council [1988] 1 EGLR 79 …. [7.8], [10.8] Tonitto v Bassal (1992) 28 NSWLR 564 …. [14.8] Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (25 September 1996) WASC (FC)) …. [16.30] Toogood v Mills (1896) 23 VLR 106 …. [17.18] Tooth v Coombes (1925) 42 WN (NSW) 92 …. [19.4] Tooth & Co Ltd v Newcastle Developments Ltd (1966) 116 CLR 167 …. [7.16] Torminster Properties Ltd v Green [1983] …. [11.6], [11.7] Torrens v Walker [1906] 2 Ch 166; [1904–7] All ER Rep 800 …. [10.6] Torriano v Young (1833) 6 C & P 8 …. [10.3] Torrisi v Oliver [1951] VLR 380 …. [3.4] Total Oil Great Britain Ltd v Thompson Garages (Biggin Hill) Ltd [1972] 1 QB 318; [1971] 3 All ER 1226 …. [1.2], [4.1], [16.28], [16.29] Tournier v National Provincial & Union Bank of England [1924] 1 KB 461 …. [23.42] Town Investments Ltd v Department of the Environment [1976] 1 WLR 1126 …. [24.2], [26.2], [27.2] — v — [1978] AC 359 …. [5.6] Town Investments Ltd Underlease, Re [1954] 1 Ch 301; 1 All ER 585 …. [15.13], [15.14] Towne v Campbell (1847) 3 CB 921; 136 ER 369 …. [20.2] Townsend v Chief Executive, State Rail Authority [1999] NSWADT 58 …. [24.20] Townsville Harbour Board v Scottish Shire Line Ltd (1914) 18 CLR 306 …. [2.19] Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd (1994) 2 VR 106 …. [4.1], [4.2] Trade Practices Commission v J&R Enterprises Pty Ltd (1991) ATPR ¶41133 …. [12.13]

— v Tooth & Co Ltd (1979) 142 CLR 397 …. [12.4] — v Milreis Pty Ltd (1977) 14 ALR 623 …. [6.9] Trafford MBC v Total Fitness UK Ltd [2004] EWCA Civ 553 …. [20.20] Tramways Advertising Pty Ltd v Luna Park (NSW) Pty Ltd (1938) 38 SR (NSW) 632 …. [13.15], [16.33], [16.34] Trane (UK) Ltd v Provident Mutual Life Assurance [1995] 1 EGLR 33 …. [20.2] Transfer from Balfour to Public Trustee, Re [1916] VLR 397 …. [5.8] Transfield Properties (Kent St) Pty Ltd v Amos Aked Swift Pty Ltd (1994) 36 NSWLR 321 …. [14.4], [14.5] Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 …. [14.1] Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326; (1992) Aust Contract R ¶90-011 …. [4.2], [7.16] Traynor v Thompson [1953] VLR 706 …. [1.9] Traywinds Pty Ltd v Cooper [1989] 1 Qd R 223 …. [14.1], [14.8], [14.9] Treacher and Co Ltd v Treacher [1874] WN 4 …. [23.18] Tredegar v Harwood [1929] 116 CLR 167; [1928] All ER Rep 11 …. [7.11], [15.6], [15.13], [23.34] — v — [1929] AC 72 …. [23.33] Trego v Hunt [1896] AC 7 …. [24.5], [25.5], [27.5] Treloar v Bigge (1874) LR 9 Exch 151 …. [15.8], [15.9] Tremearne v Woolhouse [1958] VR 269 …. [20.21] Trendent Industries Pty Ltd (in liq), Re (1983) 8 ACLR 115 …. [16.36] Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 …. [15.2] Trifid Pty Ltd v Ralto [1985] …. [11.5] Triggs v Byron (1950) 67 WN (NSW) 183 …. [16.20] — v Staines Urban District Council [1969] 1 Ch 10 …. [5.6] Trivett v Hurst [1937] St R Qd 265 …. [17.17] Tropical Meat Packers Pty Ltd v Schilta [2006] QSC 164 …. [14.9]

Tropical Traders Ltd v Goonan (1964) 111 CLR 41; [1964] ALR 585 …. [2.17], [16.30], [16.31], [18.3] Tropwood AG of Zug v Jade Enterprises Ltd (The Tropwind) [1982] 1 Lloyd’s Rep 232 …. [6.4] Tru-Grain Co Ltd, Re [1921] VLR 653 …. [13.4] Trustees of Henry Smith’s Charity v AWADA Trading and Promotion Services Ltd (1983) 1 QB 316 …. [11.6] — v Willson [1983] …. [20.32] Tryfonos v D Landau & Son (1961) 181 EG 405; [1962] LMD 3225 …. [19.4] Tsacoucis v Gallipoli Memorial Club Ltd (No 1) (1998) 9 BPR 16,265 …. [14.8], [14.9], [14.10] — v — (No 2) (1998) 9 BPR 16,275 …. [14.8] Tubbs v Wynne [1897] 1 QB 74 …. [7.16] Tuckett v Brice [1917] VLR 36 …. [5.17] Tulapam Properties Ltd v De Almeida [1981] 1 QB 74; [1981] 2 EGLR 55 …. [7.12], [15.16] Turner & Ors v York Motors Pty Ltd (1951) 85 CLR 55 …. [1.12] Turner v Watts (1928) 44 TLR 105 …. [16.19] — v Lamb (1845) 14 M & W 412; 153 ER 535 …. [10.13] — v York Motors Pty Ltd (1951) 85 CLR 55; [1951] ALR 1054 …. [2.11], [2.14], [2.15], [2.16], [10.10], [20.2], [20.5], [20.7] Turpin v Middlesbrough Assessment Committee & Kaye & Eyre Bros Ltd [1931] AC 451 …. [23.18] Tutita Pty Ltd v Ryleaco Pty Ltd (1989) 4 BPR 97,311; NSW ConvR 55486 …. [18.3], [18.6], [19.1], [19.2], [19.4] Tweed Motors (Qld) Pty Ltd v Moran Motors Pty Ltd (1965) 39 ALJR 279 …. [15.16] Twinsectra Ltd v Hymes (1995) 71 P & C 145 …. [17.12] TXU Electricity Ltd v Commonwealth Custodial Services Ltd [2003] …. [11.20]

Tymray Pty Ltd v Mercantile Mutual Life Insurance Co Ltd (1994) 13 ACSR 111 …. [18.5] Tynec Pty Ltd v Geekie [2005] NSWSC 938 …. [3.8] Ultraworth v General Accident Fire & Life Assurance Corporation [2000] 2 EGLR 115 …. [10.8] Umphelby v Grey (1898) 24 VLR 979 …. [5.17] Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492 …. [1.13], [5.18] Union Trustee Co of Australia Ltd v Baker (1948) 65 WN (NSW) 247 …. [16.15], [16.17] Unique Lifestyle Investments Pty Ltd v Robertson [2005] VSC 347 …. [4.2] United Dominions Trust Ltd v Shellpoint Trustees Ltd [1993] 4 All ER 310; [1993] 35 EG 121 …. [19.1] United Pacific Transport Pty Ltd, Re [1968] Qd R 517 …. [6.4], [6.8] United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904; [1977] 2 All ER 62 …. [4.8], [6.7], [11.1], [11.3], [11.4], [11.6], [11.8], [14.1], [14.3], [14.9], [23.40], [26.10] United Starr-Bowkett Co-operative Building Society (No 11) Ltd v Clyne (1967) …. [14.5] United Starr Bowkett Co-operative Building Society (No 11) Ltd v Clyne (1967) 68 SR (NSW) 331 …. [14.5] United States v Milwaukee Refrigerator Transit Co 142 F 247 …. [15.3] United States of America v Motor Trucks Ltd [1924] AC 196 …. [6.8] Universal Roofing & Accessories Pty Ltd v Smith [2004] NSWSC 32 …. [14.8] University of Melbourne v Avram Hotels Pty Ltd (1986) V ConvR ¶54-205 …. [10.5] Upjohn v Macfarlane [1922] 2 Ch 256 …. [17.19], [19.1] Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 …. [1.4], [4.2], [6.7], [7.16], [11.8]

Uratemp Ventures Ltd v Collins [2002] 1 AC 301 …. [1.4], [3.4] Ushers Brewery Ltd v P S King & Co (Finance) Ltd (1969) 113 Sol Jo 815 …. [16.11] V & L Li Nominees Pty Ltd v Sandhurst Trustees Ltd [2002] VCAT 391 …. [23.18] Van der Velde v Marklyn Enterprises Pty Ltd [2005] QSC 239 …. [16.36] Van Haarlam v Kasner [1992] 2 EGLR 59 …. [17.18] Vand Pty Ltd v Highpoint Shopping Centres (Leasing) Pty Ltd [2004] VCAT 2016 …. [23.40] Vanda W Holdings Pty Ltd v G & L Tierney Pty Ltd (1997) V ConvR ¶58526 …. [23.21] Varella v Marsicovetere [1954] VLR 550 …. [3.4] Varley v Coppard (1872) LR 7 CP 505 …. [5.15], [7.12], [15.16] Vasue v Lubo Medich Holdings [2008] NSWSC 899 …. [24.3] Vella v Wah Lai Investment (Aust) (2004) 12 BPR 22,671; [2004] NSWSC 748 …. [1.15], [12.9], [12.14], [15.17] — v — [2006] NSWCA 18 …. [1.15] Venza Corp Pty Ltd v Allsop (SC(NSW), Bryson J, 4 December 1996 unreported) …. [1.15] Verdi La Fontana Pty Ltd v Mabrouk Pty Ltd (1992) 5 BPR 97,381 …. [6.7], [14.1] Vernon v Smith (1821) 5 B & A 1; 106 ER 1094 …. [15.19] Verrall v Great Yarmouth Borough Council [1981] QB 202 …. [3.8] Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd [2015] VSC 515 …. [23.12] Vesco Nominees Pty Ltd v Stefan Hair Fashion Pty Ltd (2001) Q ConvR ¶54-555 …. [10.5] Vesey v Bodkin (1830) 4 Bli NS 64; 5 ER 23 …. [19.4] Vickers & Vickers v Stichtenoth Investments Pty Ltd (1989) 52 SASR 90 …. [16.21], [16.28], [16.30], [16.31] Vickers v Vickers (1867) LR 4 Eq 529 …. [14.7]

Victoria v Bradto Pty Ltd [2006] VCAT 1864 …. [23.64] Videon v Barry Burroughs Pty Ltd (1981) 37 ALR 365; 53 FLR 425 …. [12.11], [12.12] Vienit Ltd v W Williams & Son (Bread Street) Ltd [1958] 1 WLR 1267 …. [15.12] Vince Bevan Ltd v Findgard Nominees Ltd [1973] 2 NZLR 290 …. [14.6] Vincent Distributors Pty Ltd v Bambacas (1977) 16 SASR 159 …. [14.9] Vincent v Premo Enterprises (Voucher Sales) Ltd [1969] 2 QB 609 …. [1.5] Vinden v Vinden [1982] 1 NSWLR 618 …. [3.8] Viscount Tredegar v Harwood [1929] AC 72 …. [15.13] Visser v Jacobs (1987) NSW ConvR 55-350 …. [18.6] Voisey, Re; Voisey, Ex parte (1882) 21 Ch D 442 …. [1.6] Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351; [2004] VSCA 10 …. [10.5], [23.41] Vuksic v Metimex (1995) V ConvR ¶54-511 …. [16.34] Vyvyan v Arthur (1823) 1 B & C 410; [1814–23] All ER Rep 349 …. [15.20] W G Clark (Properties) Ltd v Dupre Properties Ltd [1992] Ch 297 …. [16.25], [16.28], [16.34], [17.9], [17.13], [17.21], [19.1], [19.4] W H Tuckett & Sons v Ransom [1914] VLR 8 …. [20.9], [20.13], [20.14] W Skelton Ltd v Harrison & Pinder [1975] QB 361 …. [1.8] Waipara Pty Ltd v Police Association of Victoria (1997) V ConvR ¶54-557 …. [6.8] — v — (1998) V ConvR ¶54-583 …. [1.15], [6.8] Waite v Jennings [1906] 2 KB 11 …. [15.15] Walker v Valuer-General (1978) 5 QCLR 347 …. [25.5] Walliker v Deveaux (1961) 78 WN (NSW) 409 …. [3.4], [15.2] Wallis v Hands [1893] 2 Ch 75; [1891-4] All ER Rep 719 …. [1.16], [16.21] Walls v Atcheson (1826) 3 Bing 462; 130 ER 591 …. [16.21], [16.31] Wallshire Ltd v Advertising Sites Ltd [1988] 2 EGLR 167 …. [3.8]

Wallville Pty Ltd v Liristis Holding Pty Ltd (2001) 10 BPR 19,098 …. [14.10] Walsh v Lonsdale (1882) 21 Ch D 9; [1881] 51 All ER Rep Ext 1690 …. [1.6], [4.8], [6.8] Walters v Cooper [1967] VR 583 …. [16.27] Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; 62 ALJR 110 …. [1.5], [1.6], [1.15], [4.5], [14.6] Wamo Pty Ltd v Jewel Food Stores Pty Ltd (1983) …. [11.20] Wang v Yan (No 1) [2006] VCAT 235 …. [23.57] — v — (No 2) [2006] VCAT 236 …. [23.45] — v — (No 3) [2006] VCAT 237 …. [10.13], [13.15] Ward v Kirkland [1967] Ch 194 …. [1.15] — v Sadler (1959) 76 WN (NSW) 554 …. [16.19] Warder v Cooper [1970] Ch 495; [1970] 1 All ER 1112 …. [3.5], [3.8] Ware v Booth (1894) 10 TLR 446 …. [17.9] Warne v GDK Financial Solutions Pty Ltd (2006) 233 ALR 181 …. [5.9] Warner Bros Records Inc v Rollgreen Ltd [1976] QB 430 …. [14.8] Warner v Sampson [1958] 1 All ER 44 …. [17.9], [17.10], [17.12], [17.21], [17.22], [19.4] — v — [1959] 1 QB 297; [1959] 1 All ER 120 …. [17.9], [17.10], [17.12], [17.21], [17.22] Warnford Investments v Duckworth [1978] 2 WLR 741 …. [11.3], [15.18], [16.25] — v — [1979] Ch 127 …. [16.25], [26.8] Warren v Keen [1953] 2 All ER 1118 …. [8.7] — v — [1954] 1 QB 15; [1953] 3 All ER 521 …. [8.7], [10.3] Warrender Estates Ltd v Simpson (1933) 33 SR (NSW) 390; 50 WN (NSW) 177 …. [16.25] Warwick Entertainment Centre Pty Ltd v McKenzie [2000] WASCA 280 …. [26.4] Warwick Grove Pty Ltd v Wright (1976) 1 SR (WA) 69 …. [4.8], [13.4]

Washington Motors Pty Ltd v O’Halloran [1949] VLR 203 …. [20.8] Watcham v Attorney-General (East Africa Protectorate) [1919] AC 533 …. [6.6] Waterhouse v Waugh [2003] NSWCA 139 …. [1.9], [8.9] Watson Holdings Pty Ltd v Hodinott (1957) 75 WN (NSW) 168 …. [15.2] Watson v Phipps (1985) 60 ALJR 1 …. [11.8], [14.1] — v Riding; Ex parte Riding [1945] St R Qd 75 …. [20.20], [20.26] — v Webb (1948) 66 WN (NSW) 42 …. [16.18] Watts v Rake (1960–61) 34 ALJR 186 …. [16.30] WC Pty Ltd, Re [2003] …. [18.3], [18.6] Weatherhead v Deka New Zealand Ltd [1999] ANZ ConvR 392 …. [10.8] Webb v Plummer (1819) 2 B & Ald 746 …. [7.2] — v Russell (1789) 3 Term Rep 393; 100 ER 639 …. [16.3] Webster v Smith (1689) 2 Vern 103; 23 ER 676 …. [19.6] Wedd v Porter [1916] 2 B & Ald 746; [1916] 2 KB 91; [1916–17] All ER Rep 803 …. [7.13], [15.20] Weddall v Capes (1836) 1 M & W 50; 150 ER 341 …. [16.15] Wedderburn v Wedderburn (No 4) (1856) 22 Beav 84; 52 ER 1039 …. [24.5], [25.5], [27.5] Weeding v Weeding (1861) 1 J & H 424; 70 ER 812 …. [14.1] Weemah Park Pty Ltd v Glenlaton Investments Pty Ltd [2011] 2 Qd R 582 …. [14.8] Weeton v Woodcock (1840) 7 M & W; 151 ER 659 …. [10.5] Weg Motors Ltd v Hales [1961] 3 All ER 181; [1962] Ch 49 …. [1.10], [15.20] Wei Hong Fang v Main Street Shopping Centre Pty Ltd (VCAT Deputy President Macnamara 16 October 2007 unreported) …. [23.39] Weigall & Dawes’ Lease, Re [1942] VLR 49 …. [2.11] — v Waters (1795) 6 TR 488; 101 ER 663 …. [7.4] Weitmann v Katies Ltd (1977) 29 FLR 336 …. [12.9], [23.39], [24.3],

[25.13], [26.3], [27.3], [28.3] Welbeck Way Holdings v H L Savory & Co [1958] EG 179 …. [18.6] Weller v Akehurst [1981] …. [11.6] — v Everitt (1900) 25 VLR 683 …. [10.5] — v Spiers (1872) 26 LT 866; 20 WR 772 …. [16.3], [16.5] Wellington City Corporation v Kirkcaldie & Stains Ltd [1975] 1 NZLR 592 …. [14.7] Wellington v Norwich Union [1991]; (1990) V ConvR ¶54-387 …. [23.8], [23.18], [24.1], [24.2], [26.2], [27.2] — v Norwich Union Life Insurance Society Ltd (1997) …. [23.19] Wells v D’Amico [1961] VR 672 …. [23.62] — v Kingston-Upon-Hull Corporation (1875) LR 10 CP 402 …. [3.7], [4.3] Welsh v Greeenwich London Borough Council [2000] 49 EG 118; [2000] All ER (D) 880 …. [10.8] Wenham v Ella (1972) 127 CLR 454 …. [10.13] Wenkart v Pitman (1998) 46 NSWLR 502 …. [16.30] Wentworth Securities Ltd v Jones [1980] …. [11.27] Wertheim v Chicoutimi Pulp Company [1911] AC 301 …. [10.13] Wesfarmers Bunnings Ltd v Angus & Robertson Bookworld Pty Ltd [1998] VSC 101 …. [4.1], [4.2], [4.8], [6.2] West v Gwynne [1911] 2 Ch 1 …. [15.9] West Layton Ltd v Ford [1979] QB 593 …. [15.13], [15.14] Western Assurance Company of Toronto v Poole [1903] 1 KB 376 …. [6.5] Western Australian Club Inc v Nullagine Investments Pty Ltd (1992) 6 WAR 441; [1993] ANZ ConvR 403 …. [1.12] Western Australian Trustees Limited v Poon (1994) 6 WAR 72 …. [11.8] — v — (1991) 6 WAR 72 …. [6.7], [11.8], [11.20], [26.10] Westhoughton UDC v Wigan Coal and Iron Co Ltd [1919] …. [12.3] Westinghouse Electric Australasia Ltd v Barina Properties Pty Ltd [1975] 2 NSWLR 652 …. [11.1]

Westley Nominees Pty Ltd v Coles Supermarkets Australia Pty Ltd (2006) 152 FCR 461; 232 ALR 38; [2006] FCAFC 115 …. [23.40] Westminster (Duke of) v Guild [1985] QB 688 …. [10.1] — v Store Properties Ltd [1944] 1 KB 524 …. [11.2] Westminster City Council v Clarke [1992] 2 AC 288 …. [1.4], [3.4] — v Duke of Westminster [1991] 4 All ER 136 …. [6.5], [7.8] Westminster Estates Ltd v Calleja [1970] 1 NSWR 526; 91 WN(NSW) 222 …. [14.1] Westminster v Swinton [1948] 1 KB 524 …. [10.13] Weston v Ray [1946] VLR 373 …. [1.12], [11.1] Westpac Banking Corp v Tanzone Pty Ltd (2000) 9 BPR 17,521 …. [11.8] — v Eltran Pty Ltd (1987) 74 ALR 45 …. [7.4] Westwill Pty Ltd v Heath (1990) 52 SASR 461; ATPR (Digest) 46-056 …. [12.12] Wettern Electric Ltd v Welsh Development Agency [1983] …. [3.1], [8.6], [10.1] Wexelman v Dale (1917) …. [11.3] Whaley, Re [1908] 1 Ch 615 …. [10.5] Whall v Bulman [1953] 2 All ER 306; [1953] 2 QB 198 …. [17.6] Wharf Street Pty Ltd v Amstar Learning Pty Ltd [2004] …. [11.22] Wheeler v Keeble (1914) Ltd [1920] 1 Ch 57 …. [13.11] — v Mercer [1956] …. [2.17] — v — [1957] AC 416; [1956] 3 All ER 631 …. [2.15], [2.19], [2.20] Whelan, Ex parte [1986] 1 Qd R 500 …. [6.8], [11.5], [17.10], [17.18], [18.6] White v Australian & New Zealand Theatres Ltd (1943) 67 CLR 266 …. [6.6] — v Hunt (1870) LR 6 Ex 32 …. [5.17] — v Kenny [1920] VLR 290 …. [1.8], [15.2], [15.19] — v Kitchings [1970] 1 NSWR 510 …. [18.6] Whitehall Court v Ettlinger [1920] 1 KB 680; [1918-19] All ER Rep 229 ….

[1.2], [6.10] Whitehead v Palmer [1908] 1 KB 157 …. [5.18] Whitemore Pty Ltd v O F Gamble Pty Ltd (1991) 6 WAR 110 …. [1.6], [15.15], [23.36], [24.5], [25.5], [26.4] Whitham v Kershaw (1885) 16 QBD 613 …. [10.13] Whitlock v Brew (1968) 118 CLR 445; [1969] ALR 243 …. [4.2] Whittet v State Bank of NSW (1991) 24 NSWLR 146 …. [6.8] Whittock v Mozley (1883) 1 Cab & El 86 …. [4.7] Whitworth Street Estates (Manchester) Ltd v James Miller & Partners Ltd [1970] AC 583; [1970] 1 All ER 7976 …. [6.6] Wickham Properties Pty Ltd v Astor Motel Pty Ltd [1994] …. [11.8], [11.20] Wickham v Lee (1848) 12 QB 521; 116 ER 963 …. [17.17] Wigan v Edwards (1973) 1 ALR 497 …. [16.30] Wight v Haberdan Pty Ltd [1984] 2 NSWLR 280 …. [10.13] Wik Peoples, The v The State of Queensland and Ors (1996) 187 CLR 1 …. [1.2], [1.3], [1.4] Wilbraham v Colclough [1952] 1 All ER 979 …. [20.12] Wilchick v Marks and Silverstone (Silverstone, third party) [1934] 2 KB 56 …. [10.1] Wilebbed Pty Ltd v Parramatta Riverside Theatres Pty Ltd (SC(NSW), Hodgson J, 7 November 1995 unreported) …. [1.3], [1.4] Wilkes v Spooner [1911] 2 KB 473 …. [16.3] Wilkinson v Colley (1771) 5 Burr 2694; 98 ER 414 …. [17.17] — v —; Page v More (1850) 15 QB 684; 117 ER 618 …. [17.17] — v Hall (1837) 3 Bing NC 508; 132 ER 506 …. [17.17] — v Rogers (1864) 2 De G J & S 62; 46 ER 298 …. [15.19] Wilks v Back (1802) 2 East 142; 102 ER 323 …. [5.13] Williams v Earle (1868) LR 3 QB 739 …. [13.16], [15.19] — v Evans (1875) LR 19 Eq 547 …. [4.7] — v Frayne (1937) 58 CLR 710 …. [4.8]

— v Heales (1874) LR 9 CP 177 …. [1.15], [15.17] — v Kiley (t/as C K Supermarkets Ltd) [2002] EWCA Civ 1645 …. [7.8] — v Lewis [1915] 3 KB 493 …. [8.8] William Brandt’s Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454 …. [6.8] Williamson v Williamson (1873) LR 9 Ch 729 …. [15.2] Willshire v Dalton (1948) 65 WN (NSW) 54 …. [2.13], [20.2] Willson v Leonard (1840) 3 Beav 373; 49 ER 146 …. [15.21] Wilmott Growers Group Inc v Willmott Forests Limited (Receivers and Managers Appointed) (in liquidation) (2013) 251 CLR 592 …. [16.25] Wilson, Re (1955) …. [14.10] Wilson v Anderson (2002) 213 CLR 401 …. [1.2], [1.3] — v Furness Railway Co (1869) LR 9 Eq 28 …. [10.13] — v Fynn [1948] 2 All ER 40 …. [15.8] — v Halton [1945] VLR 180 …. [20.18] — v Jolly (1948) 48 SR (NSW) 460 …. [16.3], [16.10] — v Kelly [1957] VR 147 …. [5.16], [17.17] — v Smith (1844) 12 M & W 401; 152 ER 1253 …. [11.1] — v Stewart (1889) 15 VLR 781 …. [13.11], [14.6], [17.18] Wilson’s Laundry Pty Ltd v Patmoy [1961] NSWR 499; 78 WN (NSW) 636 …. [14.10], [20.9], [20.11] Wincant Pty Ltd v State of South Australia (1997) 69 SASR 126 …. [10.5], [10.8], [10.13] Windmill Investments (London) Ltd v Milano Restaurant Ltd [1962] 2 QB 373; 2 All ER 680 …. [17.18] Winfrey & Chatterton’s Agreement, Re [1921] 2 Ch 7 …. [15.13] Wing v Kensit (1921) 21 SR (NSW) 464 …. [15.13] Winks v W H Heck & Sons Pty Ltd [1986] 1 Qd R 226 …. [6.8] Winstonu Pty Ltd t/as Harvey Norman Electrics v Pitson [2001] FCA 541 …. [6.6]

Winter v Ahern [1997] FCA 157 …. [16.22] Wintergarden Theatre (London) Ltd v Millenium Productions Ltd [1948] AC 173; [1947] 2 All ER 331 …. [3.8] Wintergarden Theatre Ltd v Baxter & Webb [1929] QWN 6 …. [16.2], [17.18] Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97; 111 ALR 649 …. [1.15] Wirral Estates Ltd v Shaw [1932] 2 KB 247 …. [16.19] Wisbech St Mary Parish Council v Lilley [1956] 1 WLR 121 …. [17.21] Witham v Bullock [1939] 2 KB 81 …. [15.19] Withers v Withers (1893) 14 ALT 273 …. [5.18] Wollongong City Council v Barker [1964] NSWR 897; (1964) 81 WN (Pt 1) (NSW) 105 …. [18.4] Wolverhampton & Dudley Breweries plc v Trusthouse Forte Catering Ltd [1984] …. [11.8] Wolveridge v Steward (1833) 1 C & M 644; 149 ER 557 …. [15.21] Wong v Moonwalk Pty Ltd (SC(Vic), Beach J, 6 March 1996, unreported) …. [20.9], [20.17], [20.24] — v Silkfield Pty Ltd [1999] HCA 48 …. [24.14], [28.12] Wood Factory Pty Ltd v Kiritos Pty Ltd (1985) 2 NSWLR 105 …. [1.2], [6.10], [11.17], [14.1], [16.1], [16.2], [16.11], [16.18], [16.21], [16.28], [16.30], [16.31], [16.35] Wood, Ex parte (1889) 6 WN (NSW) 78 …. [3.9] — v Browne [1984] 2 Qd R 593 …. [15.16] Woodall v Clifton [1905] 2 Ch 257 …. [15.20] Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] 1 WLR 277 …. [16.34] Woodcock v Nuth (1832) 8 Bing 170; 131 ER 365 …. [16.21] Woodford Nominees Pty Ltd v Masjakan Medical Pty Ltd [1998] ANZ Conv Rep 254 …. [4.1], [4.8], [11.1]

Woodhouse A C Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1972] AC 741 …. [2.16] Woodhouse, Ex parte; Re Teece (1969) 72 WN (NSW) 193 …. [26.4] — v Ah Peck (1900) …. [11.28] — v Walker (1880) 5 QBD 404 …. [10.3] Woodroffe v Box (1954) 92 CLR 245 …. [14.4] Woods & Co Ltd v City and West End Properties (1921) 23 TLR 98 …. [11.2] Woods v Moses [1953] ALR 1165 …. [1.8], [1.9], [15.2] — v Pope (1835) 6 C & P 782; 172 ER 1461 …. [10.13] Woodward v Earl of Dudley [1954] 1 Ch 283; 1 All ER 559 …. [20.15], [20.22] Woolley, Ex parte (1870) 9 SCR (NSW) 305 …. [3.9] — v Clark (1822) 5 B and Ald 744; 106 ER 1363 …. [5.18] Woolwich Equitable Building Society v Preston [1938] Ch 129 …. [17.12] Woolworth & Co v Rambert [1937] Ch 39; [1936] 1 All ER 333 …. [15.10] Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) …. [23.18] — v Merost Pty Ltd (1988) …. [11.8], [11.20] — v — (1998) …. [11.20] Woorarra Pastoral Co Pty Ltd v Cash (SC(Vic), Adam J, 25 June 1970, unreported) …. [18.6] — v — (SC(Vic), Adam J, 25 June 1971, unreported) …. [10.8], [10.10], [10.13], [17.17] Wordsley Brewery Co v Halford (1903) 90 LT 89 …. [1.9] World Best Holdings Ltd v Sarker (2010) 14 BPR 27,549; [2010] NSWCA 24 …. [16.35], [18.2], [24.6] World by Nite Pty Ltd v Michael [2004] 1 Qd R 338 …. [19.1], [19.2], [19.4] Wright v Edwards [1961] SASR 267 …. [24.2], [25.2] — v Gibbons (1949) 78 CLR 313; [1949] ALR 287 …. [5.15]

— v Smith (1805) 5 Esp 203; 170 ER 786 …. [17.17] — v Trude (1922) 25 WALR 121 …. [13.13] — v West Australian Trustee and Agency Co Ltd [1987] VR 771 …. [16.32] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2012] QSC 182 …. [6.5] WST Pty Ltd v GRE Pty Ltd [2012] 115 SASR 216 …. [27.2] Wu v Glaros (1991) 55 SASR 408 …. [4.8], [6.8] — v Hawsher [2002] NSWADT 54 …. [24.14], [28.12] Wycombe Area Health Authority v Barnett (1982) Times, 29 July …. [10.8] Wykes v Samilk Pty Ltd (1998) NSW ConvR ¶55-871 …. [1.6], [1.15], [2.15], [2.19] Wynsix Hotels (Oxford St) Pty Ltd v Toomey [2004] NSWSC 236 …. [19.2], [19.4] Wynyard Investments Ltd v Metropolitan Water Board (1953) 19 LGR 26 …. [3.3] Xanthos v Raineri (VCAT, Deputy President Macnamara, 13 May 2005, unreported) …. [23.57] Xclusive Pty Ltd v Christian Brothers Inc [2001] SASC 380 …. [27.3] Xiao v Perpetual Trustees Pty Ltd [208] VSC 412 …. [23.30] Xin v Zakos [2002] NSWADT 189 …. [24.3] Yanchep Sun City Pty Ltd v Commissioner of State Taxation (WA) (1984) 84 ATC 4761; (1984) 15 ATR 1165 …. [11.1] Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) CLR 410 …. [6.9] Yared v Spier [1979] 2 NSWLR 291 …. [13.16], [15.8], [15.9] Yates v Morris [1951] 1 KB 77 …. [7.14] — v Dunster (1855) 11 Exch 15; 156 ER 726 …. [10.13] Yellowly v Gower (1855) 11 Ex 274 …. [10.3]

Yeoman Credit Ltd v Waragouski [1961] 1 WLR 1124; [1961] 3 All ER 145 …. [16.30] York Airconditioning and Refrigeration (A/sia) Pty Ltd v Commonwealth (1949) 80 CLR 11 …. [4.2], [4.8] York Glass Co v Jubb (1925) 134 LT 36; [1925] All ER Rep 285 …. [5.4] York House Pty Ltd v Federal Commissioner of Taxation (1930) 43 CLR 427 …. [2.8], [4.8] Yorkbrook Investments Ltd v Batten (1985) 18 HLR 35; [1985] 2 EGLR 100 …. [7.4] Yorke v Lucas (1985) 158 CLR 661 …. [12.9] Young v Ashley Gardens Properties Ltd [1903] 2 Ch 112 …. [15.9], [15.11] Young v Dalgety plc [1987] 1 EGLR 116 …. [10.5] — v Kitchen (1878) 3 Ex D 127 …. [7.4] — v Lalic [2006] NSWSC 18 …. [15.17] — v Lamb (2001) 10 BPR 18,553; [2001] NSWCA 225 …. [14.8], [23.57] — v — [No 2] [2001] NSWSC 1014 …. [16.30] — v Tilley [1913] SALR 13 …. [10.1] Youngmin v Heath [1974] 1 WLR 135 …. [2.13], [2.21], [11.23] Zacharia v Ajay Investments Pty Ltd and Chan (1982) ANZ ConvR 651 …. [1.15], [14.1], [14.6], [14.8] Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 …. [12.9] — v — (1996) …. [12.9] Zaoud v Musico [2001] NSWADT 58 …. [24.18] Zegir v Woop [1955] …. [11.28] Zeus & Ra Pty Ltd v Nicolaou (2003) 6 VR 606; V ConvR ¶54-673 …. [23.64] Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 …. [10.13] Zis, Re [1961] WAR 120 …. [10.13]

Zorbas v McNamara [1960] NSWR 428; (1960) 77 WN (NSW) 561 …. [16.13] — v — [1962] NSWR 53; [1962] SR (NSW) 159; (1962) 79 WN (NSW) 52 …. [16.14] Zouch v Parsons (1765) 3 Burr 1794; 97 ER 1103 …. [5.3] Zunneberg v Batt [1948] VLR 107 …. [3.9] 112 Acland Street Pty Ltd v ANZ Banking Group Ltd (2002) 3 Ex D 127 …. [7.16] 195 Crown Street Pty Ltd v Hoare [1969] 1 NSWR 193 …. [1.6], [4.3], [5.8], [14.1], [15.18], [16.17], [26.8] — v —; Ivermee [1969] …. [14.5] 33 Bank Street Nominees Pty Ltd v Citipower Pty Ltd (1997 unreported) …. [11.3], [11.6], [11.8] 34th Enterprise Pty Ltd v Leggetts Tennis & Squash Centre (1999) V ConvR ¶58-538; [1999] VCAT 15 …. [23.48] 409 Lonsdale Street Pty Ltd v Carra [1974] VR 887 …. [1.8], [14.4], [15.1], [15.2] 536 Swanston Street Pty Ltd v Harbrut Pty Ltd (1988) V ConvR ¶54-323 …. [23.18], [23.19] 7-Eleven Stores Pty Ltd v United Petroleum Pty Ltd [2010] QSC 469 …. [25.3] 8 Parriwi Road Pty Ltd v Raffan [1970] …. [14.6]

Table of Statutes References are to paragraphs

UNIFORM COMMERCIAL ARBITRATION ACT …. [14.7] UNIFORM COMPANIES ACTS s 35 …. [5.8] s 123(12) …. [5.8] s 123(13) …. [5.8] COMMONWEALTH Acts Interpretation Act 1901 s 22(1)(c) …. [12.11] Australian Consumer Law …. [12.1], [12.14], [12.16], [23.58] Ch 2 …. [12.1], [12.8], [12.15] Ch 2, Pt 2.2 …. [12.14] Ch 3 …. [12.1], [12.11], [12.15] Pt 4.6 …. [12.15] s 2 …. [12.9], [12.11] s 9 …. [12.16] s 16 …. [12.16] s 18 …. [12.10], [12.15], [12.16], [14.4], [24.3], [26.3], [28.3], [28.6] s 21 …. [12.14], [24.6], [25.6], [25.13], [27.3] s 21(4) …. [12.14] s 22 …. [12.14] s 29 …. [12.10]

s 30 …. [12.11] s 30(1) …. [12.11] s 34 …. [12.13] s 37(2) …. [12.13] s 151 …. [12.10] s 152(1) …. [12.11] s 224 …. [12.15] Bankruptcy Act 1966 …. [17.21] s 133 …. [16.25] s 134(ab) …. [5.11] s 135(1)(c) …. [5.11] s 135(4) …. [5.11] Commonwealth of Australia Constitution s 51(xx) …. [12.1] s 109 …. [12.16] Companies Act 1981 ([state] Codes) s 454 …. [16.25] Competition and Consumer Act 2010 …. [7.8], [12.1], [12.2], [12.6], [15.20], [20.1] Pt IV …. [12.1], [12.2], [12.5], [25.6] s 4 …. [12.11] s 18 …. [24.6] s 21 …. [24.6] s 45 …. [7.8] s 45B(1) …. [12.3] Corporations Act 2001 …. [5.8], [15.3], [17.21], [20.27], [26.2], [26.12] s 9 …. [5.8], [5.10], [23.18], [23.21], [23.22], [26.2] s 57A(2) …. [5.8] s 109X …. [20.27]

s 124 …. [5.8] s 125 …. [5.8] s 125(1) …. [5.8] s 125(2) …. [5.8] s 126 …. [5.8], [16.12] s 126(1) …. [16.12] s 127 …. [16.12] s 127(1) …. [16.12], [20.11] s 127(4) …. [16.12] s 129(4) …. [5.8] s 220 …. [11.9] s 258B …. [5.8] s 262 …. [16.36] s 419(1) …. [5.10] s 419A …. [5.10] s 419A(2) …. [5.10] s 419A(3) …. [5.10] s 419A(7) …. [5.10] s 419A(8) …. [5.10] s 420(2) …. [5.10] s 420(2)(b) …. [5.10] s 442C …. [5.9] s 443B(2) …. [5.9] s 443B(3) …. [5.9] s 443B(9) …. [5.9] s 447D …. [5.9] s 4601CY …. [5.8] s 477 …. [5.9] s 477(1)(a) …. [5.9]

s 477(2)(m) …. [5.9] s 506 …. [5.9] s 568 …. [16.25] s 568A …. [16.25] s 568B …. [16.25] s 568F …. [16.25] Sch 2, s 90–20 …. [5.9] Corporations Law …. [17.21] s 436A …. [18.5] s 440C …. [18.5] s 568 …. [16.25] Foreign Acquisitions and Takeovers Legislation Amendment Act 2015 s 12 …. [5.2] s 67 …. [5.2] Insurance Contracts Act 1984 s 3(1) …. [10.1] National Security (Landlord and Tenant) Regulations …. [3.4] Restrictive Trade Practices Act 1971 …. [12.2] Restrictive Trade Practices Act 1972 …. [12.2] Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 …. [12.1] Trade Practices Act 1974 …. [6.5], [7.8], [12.1], [12.9], [12.14], [15.20], [20.1], [24.6] Pt IV …. [12.1], [12.2], [12.5] Pt IVA …. [12.1], [12.14], [24.6], [25.6] Pt V …. [12.1], [12.14] Pt V, Div 1 …. [12.15] s 4(1) …. [12.3], [12.8] s 4(2)(a) …. [12.9]

s 4H …. [12.2], [12.5] s 45 …. [7.8], [12.2], [12.5], [12.7] s 45B …. [12.3], [12.5] s 45B(1) …. [12.3] s 45B(2) …. [12.3] s 45B(3) …. [12.3] s 45B(9) …. [12.3], [12.4] s 46 …. [12.5] s 47 …. [12.2], [12.4], [12.5], [12.7] s 47(1) …. [12.4] s 47(8) …. [12.4] s 47(9) …. [12.2], [12.4] s 47(10) …. [12.4] s 47(11) …. [12.4] s 51A …. [12.10] s 51A(1) …. [12.10] s 51AA …. [12.1], [12.14] s 51AB …. [12.14], [12.10], [12.13], [12.15], [23.39] s 51AB(1) …. [12.13] s 51AB(5) …. [12.14] s 51AC …. [12.14], [23.56], [24.6], [25.6], [28.6] s 52 …. [14.4] s 52(1) …. [24.3] s 53 …. [12.10], [12.13], [12.15], [23.40] s 53(e) …. [12.10] s 53A …. [12.11], [12.15] s 53A(1) …. [12.10], [12.12] s 53A(1)(b) …. [12.10], [12.12] s 53A(2) …. [12.12]

s 55 …. [12.15] s 55A …. [12.13], [12.15] s 55A(1) …. [12.12], [12.13] s 59 …. [12.15] s 59(2) …. [12.13] s 75 …. [12.16] s 75(2) …. [12.16] s 79 …. [12.14] s 79(1) …. [12.9] s 80(1) …. [12.9] s 85 …. [12.14] s 85(1) …. [12.14] s 87(1) …. [12.9] s 90(7) …. [12.4] s 93(1) …. [12.4] s 93(3) …. [12.4] s 93(7)(b) …. [12.4] s 93A …. [12.4] s 163A …. [12.6] AUSTRALIAN CAPITAL TERRITORY Civil Law (Property) Act 2006 …. [28.16] Commercial and Retail Lease Code …. [28.1] Fair Trading Act 1992 …. [12.15], [20.1] s 12 …. [12.15] s 13 …. [12.15] s 14 …. [12.15] s 15 …. [12.15] s 20 …. [12.15]

s 25 …. [12.15] Fair Trading (Australian Consumer Law) Amendment Act 2010 (ACT) s 7(1) …. [12.16] Forfeiture of Leases Act 1901 …. [18.6] Landlord and Tenant Act 1969 s 40 …. [11.3] Land Titles Act 1925 …. [28.5] s 77 …. [12.3] s 78 …. [12.3] Leases (Commercial and Retail) Act 2001 …. [28.1], [28.14] Pt 7 …. [28.7] Pt 7, Div 8.1 …. [28.9] Pt 11 …. [28.15] Pt 14 …. [28.17] s 4 …. [28.2] s 5 …. [28.3] s 7(3) …. [28.2] s 8(1) …. [28.2] s 10 …. [28.2], [28.8] s 12(1) …. [28.2] s 12(1)(k) …. [28.2] s 12(2) …. [28.2] s 12(5) …. [28.2] s 12(7) …. [28.2] s 13 …. [28.2] s 22 …. [28.6] s 22(1) …. [28.6] s 22(2) …. [28.6] s 23(1) …. [28.5]

s 23(2) …. [28.5] s 25 …. [28.4] s 26 …. [28.14] s 27 …. [28.14] s 28 …. [28.4] s 30 …. [28.3] s 30(2) …. [28.3] s 30(3) …. [28.3] s 30(4) …. [28.3] s 30(5) …. [28.3] s 31 …. [28.3] s 32 …. [28.3] s 36 …. [28.3] s 38(1) …. [28.5] s 38(2) …. [28.5] ss 39–45 …. [28.7] s 39(1) …. [28.7] s 40 …. [28.7] s 41 …. [28.7] s 42 …. [28.7] s 42(b) …. [28.7] s 43 …. [28.7] s 44 …. [28.7] s 45 …. [28.7] ss 46–60 …. [28.9] s 47(1) …. [28.9] s 47(2) …. [28.9] s 51(2) …. [28.9]

s 52 …. [28.9] s 52(2) …. [28.9] s 52(4) …. [28.9] s 53(1) …. [28.9] s 54 …. [28.9] s 61 …. [28.10] ss 61–64 …. [28.10] s 62 …. [28.10] s 62(1) …. [28.10] s 63 …. [28.10] s 64 …. [28.10] s 65 …. [28.11] ss 65–72 …. [28.11] s 65(1)(a) …. [28.11] s 65(1)(b) …. [28.11] s 66(1) …. [28.11] s 66(2) …. [28.11] s 67 …. [28.11] s 70(1) …. [28.11] s 72(1) …. [28.11] s 73(1) …. [28.14] s 73(2) …. [28.14] s 75 …. [28.11] s 76 …. [28.11] s 77 …. [28.11] s 78(a) …. [28.12] s 78(b) …. [28.12] s 79 …. [28.12] s 80 …. [28.12]

s 81 …. [28.12] s 81(2) …. [28.12] s 84 …. [28.12] s 85 …. [28.12] s 87C …. [5.16] s 89 …. [28.16] s 90 …. [28.16] s 93 …. [28.15] ss 93–103 …. [28.15] s 95 …. [28.15] s 96 …. [28.15] s 98(1) …. [28.15] s 98(2) …. [28.15] s 99(2) …. [28.15] s 99(4) …. [28.15] s 100(1) …. [28.15] s 100(2) …. [28.15] s 100(3) …. [28.15] s 102(1) …. [28.15] s 103 …. [28.15] s 104 …. [28.8] s 104(1)(b) …. [28.8] s 104(2) …. [28.8] s 104(3) …. [28.8] s 104(6) …. [28.8] s 104(7) …. [28.8] s 105(2) …. [28.8] s 105(3) …. [28.8]

s 105(5) …. [28.8] s 107 …. [28.16] s 113 …. [28.16] ss 113–127 …. [28.16] s 114 …. [28.16] s 115 …. [28.16] s 115(2) …. [28.16] s 116 …. [28.16] s 117 …. [28.16] s 119(1) …. [28.16] s 120 …. [28.16] s 121 …. [28.16] s 122(1) …. [28.16] s 122(2) …. [28.16] s 122(4) …. [28.16] s 123(1) …. [28.16] s 123(3) …. [28.16] s 123(4) …. [28.16] s 129 …. [28.14] ss 131–133 …. [28.13] s 131(2) …. [28.13] s 131(3) …. [28.13] s 132(2) …. [28.13] s 132(3) …. [28.13] s 133 …. [28.13] ss 136–138 …. [28.13] s 136(1) …. [28.13] s 136(1)(a) …. [28.13] s 136(1)(d) …. [28.13]

s 137 …. [28.13], [28.14] s 138(1) …. [28.13] ss 139–140 …. [28.13] s 139(1) …. [28.13] s 140 …. [28.13] s 141 …. [28.14] s 142 …. [28.14] s 144 …. [28.17] s 144(3) …. [28.17] s 147 …. [28.17] s 148 …. [28.17] s 149 …. [28.17] s 151 …. [28.17] s 154 …. [28.17] s 155 …. [28.17] s 157A …. [28.3] Dictionary …. [28.2], [28.5] Sch 1 …. [28.9] Sch 1, Cl 1.1 …. [28.9] Sch 1, Cl 1.2 …. [28.9] Sch 1, Cl 1.3 …. [28.9] Sch 1, Cl 1.11 …. [28.9] Leases (Commercial and Retail) Regulations 2002 …. [28.1] reg 3 …. [28.2] reg 4 …. [28.2] Magistrates Court Act 1930 …. [28.17] Retail Tenancy Tribunal Act 1994 …. [28.1] Statute Law Amendment Act 2015 …. [28.15]

Unit Titles Act 2001 …. [28.2] NEW SOUTH WALES Administrative Decisions Tribunal Act 1997 Sch 2, Cl 1 …. [24.6] Sch 2, Cl 4 …. [24.6] Agricultural Tenancies Act 1990 s 10 …. [10.5] City of Sydney Improvement Act 1879 …. [10.1] Conveyancing Act 1919 …. [24.19] Pt VIII, Div 4 …. [14.6] s 6 …. [17.20] s 10 …. [16.8] s 12 …. [15.20] s 23A(1) …. [16.14] s 23A(3) …. [16.14] s 23B …. [1.6] ss 23B–23D …. [15.17], [16.12] s 23B(1) …. [1.6], [15.17], [16.14] s 23B(2)(c) …. [16.12] s 23B(2)(d) …. [15.17] s 23B(3) …. [16.14] s 23C …. [1.6] s 23C(1)(a) …. [1.6], [16.14] s 23D …. [1.6] s 23D(1) …. [1.6] s 23D(2) …. [1.6] s 23H(3) …. [16.14] s 23S(1) …. [15.17]

s 24 …. [5.15] s 38(3) …. [1.6] s 44(2) …. [5.15] s 54A …. [1.6], [4.3], [14.5] s 66D …. [5.17] s 70 …. [15.18], [15.20] s 70A …. [15.18], [15.20] s 74 …. [7.1] s 84 …. [7.1] s 85 …. [7.1], [17.20] s 85(1)(d) …. [17.14] s 86 …. [7.1] s 106 …. [5.16] s 106(16) …. [5.10] s 107 …. [5.16] s 117 …. [20.8] ss 117–118 …. [15.19] s 117(1) …. [15.20], [20.8] s 119 …. [20.16] s 120 …. [7.7], [17.18] s 120A(1) …. [1.16] s 120A(3) …. [1.10] s 120A(5) …. [1.9] s 121 …. [16.3] s 122 …. [16.3], [16.10] s 123 …. [7.7], [17.18] s 125 …. [1.14], [11.3] s 127 …. [1.6], [2.8] s 127(1) …. [1.6], [2.14], [2.19], [15.16], [20.6]

s 129 …. [2.5], [13.11], [16.30], [16.35], [17.20], [18.2], [18.3], [19.1], [19.2] s 129(1) …. [14.6], [16.35], [17.15], [18.1], [18.2], [19.2] s 129(2) …. [19.4] s 129(2A) …. [18.2] s 129(3) …. [18.3] s 129(6) …. [18.3], [19.1] s 129(6)(d) …. [18.3] s 129(6)(e) …. [19.6] s 129(8) …. [18.3], [19.2] s 129(9) …. [18.2], [18.6] s 129(10) …. [18.2] s 130 …. [19.6] s 133A(1) …. [10.13] s 133A(2) …. [17.15], [18.1] s 133B …. [15.6], [15.9], [15.13], [15.15], [24.18] s 133B(1)(a) …. [7.11] s 133C …. [14.6] ss 133C–133G …. [14.6] s 133E …. [14.6] s 133E(1)(b) …. [14.6] s 133E(2) …. [14.6] s 133E(3) …. [14.6] s 133F …. [14.6] s 133F(2) …. [14.6] s 133F(3) …. [14.6] s 133F(4) …. [14.6] s 133G …. [14.6] s 134(1) …. [11.27]

ss 135–141 …. [5.19] s 142 …. [16.22] s 144 …. [11.3], [16.22] s 146A …. [5.2] s 151C …. [5.17] s 153 …. [5.18] s 170 …. [11.9], [14.8], [14.10], [18.10] Sch 4, Pt 11 …. [7.1], [10.3], [15.9] Sch 6 …. [18.6], [18.9] Conveyancing (Amendment) Act 1972 …. [14.6] Crown Land Management Act 2016 s 5.16 …. [5.6] Crown Proceedings Act 1988 …. [5.6] Fair Trading Act 1987 …. [12.15], [20.1], [24.1] s 42 …. [12.15] s 43 …. [12.15] s 44 …. [12.15] s 45 …. [12.15] s 50 …. [12.15] s 54 …. [12.15] Fair Trading Amendment (Australian Consumer Law) Act 2010 s 28 …. [12.16] Frustrated Contracts Act 1978 …. [6.10] Hire Purchase Act 1960 s 35 …. [10.5] Imperial Acts Application Act 1969 …. [17.17] ss 18–20 …. [21.3] Interpretation Act 1987

s 76 …. [14.10] Landlord and Tenant Act 1899 …. [19.2] s 8 …. [11.24], [17.14], [19.3] ss 8–10 …. [11.25], [19.3] s 8(3) …. [19.3] s 9 …. [19.3] s 10 …. [19.3], [19.6] s 22A …. [2.8] Landlord and Tenant Amendment Act 1948 …. [1.5] Landlord and Tenant Amendment (Distress Abolition) Act 1930 …. [11.3] Liquor Act 2007 …. [6.9] s 91 …. [5.20] s 92 …. [5.20] s 92(1) …. [5.20] s 92(1)(c) …. [5.20] s 92(1)(d) …. [5.20], [6.9] Local Government Act 1919 s 327AA …. [1.15] s 327AA(2) …. [1.6] Married Persons (Equality of Status 96 NSW Trustee and Guardianship Act 2009 NSW Trustee and Guardianship Act 2009 s 16 …. [5.4] Powers of Attorney Act 2003 s 43 …. [5.13] Public Trustee Act s 18A …. [16.20] Real Property Act 1900 …. [1.5], [15.17], [24.9] s 7(1) …. [16.14]

s 36 …. [12.3] s 41(1)(d) …. [14.5] s 42 …. [6.8] s 42(1)(d) …. [1.6], [4.8], [5.16] s 43 …. [6.8] s 43A …. [1.15] s 51 …. [12.3] s 52 …. [6.8], [12.3] s 53(4) …. [5.16] s 54 …. [16.12] s 55 …. [17.20], [19.2] s 60 …. [7.4], [15.20] s 63 …. [7.4] s 79(b) …. [17.14] s 81(1) …. [24.9] s 81(3) …. [24.9] s 85(2) …. [17.14] Residential Tenancies Act 1987 …. [10.1], [24.8] s 4 …. [10.1] s 8(1) …. [10.1] s 8(4) …. [10.1] Residential Tenancies Act 2010 …. [24.8] Residential Tenancies Regulations 2006 Pt 4 …. [10.1] Residential Tenancies (Residential Premises) Regulations 1995 …. [16.36] Retail Leases Act 1994 …. [24.1], [24.6], [24.8], [24.19], [27.1] Pt 2A …. [24.7] Pt 8 …. [24.2], [24.20] s 3 …. [24.2], [24.5]

s 5 …. [24.2] s 5(a) …. [24.2] s 5(e) …. [24.2] s 6 …. [24.2] s 6(1) …. [24.2] s 6(1)(a) …. [24.2] s 6(1)(c) …. [24.2] s 6(1)(d) …. [24.2] s 6(1)(e) …. [24.2] s 6A …. [24.2] s 8 …. [24.3] s 8(1) …. [24.3] s 8(2) …. [24.3] s 9 …. [24.4] s 10 …. [24.3] s 10(1) …. [24.3] s 10(2) …. [24.3] s 10(3) …. [24.3] s 11 …. [24.3], [24.12] s 11(1) …. [24.3] s 11(1)(c) …. [24.3] s 11(1)(d) …. [24.3] s 11(2) …. [24.3] s 11(2)(A) …. [24.3] s 11(3) …. [24.3] s 11(5) …. [24.3] s 11A(1) …. [24.3] s 11A(3) …. [24.3]

s 12 …. [24.17] s 12A …. [24.12] s 12A(2)(a) …. [24.12] s 12A(4) …. [24.12] s 14(1) …. [24.5] s 14(2) …. [24.5] s 14(3) …. [24.5] s 14(4) …. [24.5] s 16 …. [24.9], [24.16] s 16(1) …. [24.9] s 16(2) …. [24.9] s 16(3) …. [24.9] s 16(4) …. [24.9] s 16(5) …. [24.9] ss 16A–16ZC …. [24.7] s 16B …. [24.7] s 16C …. [24.7] s 16C(7) …. [24.7] s 16D …. [24.7] s 16G …. [24.7] s 16H …. [24.7] s 16I …. [24.7] s 16O …. [24.7] s 16U …. [24.7] s 16V …. [24.7] s 17(2)(a) …. [24.12] s 17(2)(b) …. [24.12] s 18 …. [24.10] s 18(1) …. [24.10]

s 18(2) …. [24.10] s 18(4) …. [24.10] s 19 …. [24.10] s 19(a) …. [24.10] s 19(d) …. [24.10] s 20 …. [24.11] s 20(1) …. [24.11] s 20(2) …. [24.11] s 20(3) …. [24.11] s 20(4) …. [24.11] s 21 …. [24.12] s 23 …. [24.12] s 24 …. [24.12] s 24A …. [24.12] s 24B …. [24.12] s 25 …. [24.12] s 25(b)–(c) …. [24.12] s 25A …. [24.12] s 27 …. [24.12] ss 27–30 …. [24.12] s 27(a) …. [24.12] s 27(b) …. [24.12] s 28 …. [24.12] s 28(a) …. [24.12] s 28(b) …. [24.12] s 28(e) …. [24.12] s 28A …. [24.12] s 29 …. [24.12]

s 29(a) …. [24.12] s 29(c) …. [24.12] s 30 …. [24.12] s 30(1) …. [24.12] s 30(2) …. [24.12] s 31 …. [24.10] s 31(a) …. [24.10] s 31(b) …. [24.10] s 32 …. [24.10] s 32(1)(a) …. [24.10] s 32(1)(c) …. [24.10] s 32(2) …. [24.10] s 32A …. [24.10] s 32A(1) …. [24.10] s 32A(2) …. [24.10] s 32A(11) …. [24.10] s 32A(12) …. [24.10] s 33 …. [24.14] ss 33–36 …. [24.13] s 34 …. [24.14] s 34(1) …. [24.14] s 34(1)(a)–(d) …. [24.8], [24.14] s 34(2) …. [24.14] s 34(3) …. [24.14] s 34(4)(a) …. [24.14] s 34(4)(b) …. [24.14] s 34A …. [24.13], [24.15] s 34A(a) …. [24.15] s 34A(b) …. [24.15]

s 34A(c) …. [24.15] s 34A(f) …. [24.15] s 35(1) …. [24.14] s 35(1)(b) …. [24.14] s 35(1)(c) …. [24.14] s 35(2) …. [24.14] s 35(4) …. [24.14] s 36 …. [24.14] s 36(1)(c) …. [24.19] s 36(1)(d) …. [24.19] s 36(1)(e) …. [24.19] s 37 …. [24.16] s 39 …. [24.18] ss 39–42 …. [24.18] s 39(2) …. [24.18] s 40 …. [24.18] s 40(1) …. [24.5] s 40(2) …. [24.5] s 41 …. [24.18] s 41(c) …. [24.18] s 41(d) …. [24.18] s 42 …. [24.18] s 43 …. [24.18] s 44(1) …. [24.19] s 44(2) …. [24.19] s 44(3) …. [24.19] s 44(5) …. [24.19] s 45(1) …. [24.5]

s 45(2) …. [24.5] s 46 …. [24.17] s 47 …. [24.7] s 48 …. [24.16] s 50 …. [24.16] s 52 …. [24.17] s 53 …. [24.15] ss 53–56 …. [24.15] ss 53–61 …. [24.13] s 54 …. [24.15] s 55 …. [24.15] s 56 …. [24.15] s 57 …. [24.15] s 57(a) …. [24.15] s 57(b) …. [24.15] s 57(c) …. [24.15] s 57(d) …. [24.15] s 57(f) …. [24.15] s 58 …. [24.16], [24.19] s 59 …. [24.16] s 60 …. [24.16] s 61 …. [24.15] s 61(1) …. [24.15] s 61(2) …. [24.15] s 61(4) …. [24.15] s 62A(2) …. [24.6] s 62B …. [24.6] s 62B(1) …. [24.6] s 62B(2) …. [24.6]

s 62B(3) …. [24.6] s 62B(4) …. [24.6] s 62D …. [24.6] s 63 …. [24.20] s 63(1) …. [24.20] s 63(2) …. [24.20] s 63(2)(b) …. [24.2] s 64 …. [24.20] s 64(1) …. [24.20] s 65(1)(a) …. [24.20] ss 66–67 …. [24.20] s 66(1) …. [24.20] s 67(1) …. [24.20] s 68(1) …. [24.20] s 71 …. [24.20] s 72 …. [24.20] s 72(2)–(4) …. [24.20] s 72A …. [24.20] s 73 …. [24.20] s 75(1) …. [24.20] s 76(3) …. [24.20] s 76(4) …. [24.20] s 77(1) …. [24.20] s 80E …. [24.18] s 82 …. [24.2] s 83 …. [24.2] s 84 …. [24.16] Sch 1 …. [24.2]

Sch 2 …. [24.3], [24.12] Sch 2, Pt 1 …. [24.3] Sch 2, Pt 2 …. [24.3] Sch 3, Cl 20 …. [24.3] Retail Leases Amendment Act 1998 …. [24.6] Retail Leases Amendment (Review) Act 2017 …. [24.1] s 6B …. [24.2] Strata Schemes (Freehold Development) Act 1973 …. [24.2] Strata Schemes (Leasehold Development) Act 1986 …. [24.2] Supreme Court Act 1970 …. [11.25] s 68 …. [1.15] s 73 …. [19.3] Trustee Act 1925 ss 36–38 …. [5.17], [5.18] s 61 …. [5.18] s 81 …. [5.17], [5.18] Uncollected Goods Act 1995 …. [16.36] Western Lands Act 1901 …. [19.1], [19.4] Wills Probate and Administration Act 1898 s 57 …. [5.18] NORTHERN TERRITORY Consumer Affairs and Fair Trading Act 1990 …. [12.15], [20.1] s 42 …. [12.15] s 43 …. [12.15] s 44 …. [12.15] s 45 …. [12.15] s 48 …. [12.15] s 49 …. [12.15]

Consumer Affairs and Fair Trading Amendment (National Uniform Legislation) Act 2010 s 27 …. [12.16] QUEENSLAND Acts Interpretation Act 1954–1977 s 40 …. [18.6] Crimes Act 1928 s 2 …. [21.3] s 197 …. [21.3] Criminal Code Act 1899 …. [21.3] s 70 …. [21.3] s 71 …. [21.3] Crown Proceedings Act 1980 …. [5.6] Fair Trading Act 1989 …. [12.15], [20.1] s 38 …. [12.15] s 39 …. [12.15] s 40 …. [12.15] s 40A …. [12.15] s 45 …. [12.15] s 49 …. [12.15] Fair Trading (Australian Consumer Law) Amendment Act 2010 (Queensland) s 18 …. [12.16] Fire Brigades Act Amendment Act 1983 …. [7.16] Judicature Act 1876 s 5(4) …. [16.8] Land Act 1962 s 274(2)(a) …. [15.16] Land Act 1994 …. [5.6], [15.16]

Land Title Act 1994 s 62 …. [12.3] s 66 …. [5.16] s 78(2) …. [15.20] s 170(1)(b) …. [4.8], [14.5] s 185(1)(b) …. [4.8], [5.16] Land Valuation Act 2010 …. [11.5] s 297 …. [11.5] Married Women (Restraint upon Anticipation) Act 1952 s 2 …. [5.5] Married Womens Property Act 1890 …. [5.5] Penalties and Sentences Act 1992 s 5(1) …. [25.4] Power of Attorney Act 1998 s 69 …. [5.13] Property Law Act 1974 …. [25.17] s 10 …. [1.6] ss 10–12 …. [15.17], [16.12] s 10(2)(b) …. [16.12] s 10(2)(c) …. [15.17] s 11 …. [1.6] s 12 …. [1.6] s 12(2) …. [1.6] s 15A …. [5.2] s 45(2) …. [1.6] s 47 …. [1.6] s 53(1) …. [15.18], [15.20] s 53(2) …. [15.18], [15.20] s 58 …. [10.1]

s 59 …. [1.6], [4.3], [14.5] s 102(1) …. [1.16] s 102(3) …. [1.10] s 103 …. [11.3], [16.36] s 109 …. [7.1] s 112(1) …. [10.13] s 116 …. [20.16] s 117 …. [7.4], [15.20] ss 117–118 …. [15.19] s 117(2) …. [7.4] s 119 …. [7.7], [17.18] s 121 …. [7.11], [15.6], [15.15], [25.16] s 121(3) …. [7.8] ss 123–128 …. [11.25], [14.6] s 124 …. [2.5], [13.11], [17.20] s 124(1) …. [17.15], [18.1], [18.2] s 124(2) …. [19.4] s 124(6) …. [18.3], [19.1] s 124(6)(d) …. [18.3] s 124(6)(e) …. [19.6] s 124(7) …. [18.11], [19.1] s 124(8) …. [18.2], [18.6] s 124(9) …. [18.2] s 125 …. [19.6] s 127 …. [18.2] s 128 …. [14.6] s 129 …. [2.8] s 129(1) …. [1.6], [2.14], [15.16], [20.6]

s 131 …. [2.8] s 132 …. [20.29] s 133(2) …. [2.8] s 138 …. [17.17] s 139 …. [17.17] s 199 …. [15.20] ss 231–233 …. [16.22] s 232 …. [11.3] s 347 …. [18.10] Sch 2, Form 10 …. [18.2] Sch 3 …. [7.1] Real Property Act 1861 s 60 …. [7.4], [15.20] s 70(1) …. [7.11], [7.16] Residential Tenancies Act 1994 …. [25.7] Retail Shop Leases Act 1984 …. [25.1] Pt IV …. [25.1] Pt V …. [25.1] Retail Shop Leases Act 1994 …. [25.1], [25.6], [25.7], [25.14], [25.17] Pt 8 …. [25.8], [25.16], [25.18] Pt 9 …. [25.16], [25.18] s 3 …. [25.1] s 5 …. [25.2], [25.5], [25.8], [25.18] s 5A …. [25.2] s 5A(1) …. [25.2] s 5A(2) …. [25.2] s 5A(3) …. [25.2] s 5B …. [25.2] s 5D …. [25.12]

s 7 …. [25.10] s 9(1) …. [25.9] s 9(2) …. [25.9] s 10 …. [25.2] s 11 …. [25.2], [25.3] s 12 …. [25.1], [25.2] s 13 …. [25.1], [25.2] s 13(2) …. [25.2] s 14 …. [25.2] s 15 …. [25.15] s 15(1) …. [25.2] s 19 …. [25.15] s 21B …. [25.3] s 21B(1) …. [25.4] s 21C …. [25.3] s 21E …. [25.3] s 21F …. [25.3] s 21F(1) …. [25.4] s 21F(2) …. [25.3] s 21F(5) …. [25.3], [25.4] s 22 …. [25.4], [25.10] s 22(2) …. [25.3], [25.4] s 22A …. [25.10] s 22B …. [25.3], [25.16] s 22C …. [25.3] s 22D …. [25.10] s 22E …. [25.10] s 23 …. [25.4]

s 24(1) …. [25.10] s 24(1)(c) …. [25.10] s 24(3) …. [25.10] s 24(4) …. 25.10 s 25(2) …. [25.9] s 26 …. [25.9] s 26(1) …. [25.9] s 26(2) …. [25.9] s 26(4) …. [25.9] s 26(5) …. [25.9] ss 27–36A …. [25.8] s 27(1) …. [25.8] s 27(1)(d) …. [25.8] s 27(1)(e) …. [25.8] s 27(2) …. [25.8] s 27(4) …. [25.8] s 27(5) …. [25.8] s 27(5)(f) …. [25.8] s 27(7) …. [25.8] s 27(8) …. [25.8] s 27A …. [25.8] s 28 …. [25.8] ss 28–35 …. [25.8] s 28(2) …. [25.8] s 29(1)(b) …. [25.8] s 29(2) …. [25.8] s 30 …. [25.8] s 30(1) …. [25.8] s 30(2) …. [25.8]

s 31 …. [25.8] s 34 …. [25.8], [25.10] s 35 …. [25.8] s 35(1)(a) …. [25.8] s 35(1)(b) …. [25.8] s 35(3) …. [25.8] s 36(b) …. [25.8] s 36(c) …. [25.8] s 36(d) …. [25.8] s 36(e) …. [25.8] s 37 …. [25.10] s 37(1) …. [25.10] s 37(2) …. [25.10] s 37(2)(c) …. [25.10] s 38(1)(a) …. [25.10] s 38(2) …. [25.10] s 39 …. [25.5] s 39(1) …. [25.5], [25.10] s 39(2) …. [25.5], [25.10] s 39(2)(e) …. [25.5] s 39(3) …. [25.5] s 40 …. [25.14] s 40(2) …. [25.14] s 40(3) …. [25.14] s 40(4) …. [25.14] s 40(6) …. [25.14] s 40(7) …. [25.14] s 41(2) …. [25.14]

s 41(3) …. [25.14] s 42 …. [25.13] s 43 …. [25.7], [25.12] s 43(1) …. [25.13] s 43(1)(b)–(d) …. [25.13] s 43(2) …. [25.13] s 43(2)(a) …. [25.13] s 43(2)(b) …. [25.13] s 43(3) …. [25.13] s 43AA …. [25.13] s 43AA(1) …. [25.13] s 44 …. [25.13] s 44A …. [25.13] s 45 …. [25.15] s 45(1) …. [25.15] s 45(2) …. [25.15] s 45(3) …. [25.15] s 46 …. [25.11] s 46(1) …. [25.11] s 46(2) …. [25.11] s 46AA …. [25.11] s 46AA(1) …. [25.11] s 46AA(2) …. [25.11] s 46AA(4) …. [25.11] s 46AA(4A) …. [25.11] s 46AA(6) …. [25.11] s 46A …. [25.6] ss 46A–46B …. [25.6] s 46A(1) …. [25.6]

s 46A(4) …. [25.6] s 46B …. [25.6] s 46C …. [25.17] s 46D …. [25.17] s 46E …. [25.17] s 46E(1) …. [25.17] s 46E(2) …. [25.17] s 46E(3) …. [25.17] s 46H …. [25.17] s 46J …. [25.17] s 46K(1) …. [25.17] s 46K(3) …. [25.17] s 47(1) …. [25.15] s 47(2) …. [25.15] s 48 …. [25.10] s 49 …. [25.15] s 50 …. [25.16] s 50A …. 25.16 s 51 …. [25.15] s 53 …. [25.15] s 53(1) …. [25.15] s 53(2) …. [25.15] s 53(3) …. [25.15] s 53(4) …. [25.15] s 54 …. [25.18] s 55 …. [25.18] s 56 …. [25.18] s 57 …. [25.18]

s 61 …. [25.18] s 63 …. [25.18] s 64 …. [25.18] s 72(1) …. [25.18] s 72(2) …. [25.18] s 74(2) …. [25.18] s 82A(1) …. [25.18] s 83(1) …. [25.18] s 84 …. [25.18] s 85 …. [25.18] s 86 …. [25.18] s 95 …. [25.18] s 97 …. [25.18] s 97(2) …. [25.18] s 97(3) …. [25.18] s 98 …. [25.18] s 102 …. [25.18] s 103 …. [25.18] s 103(1)(c) …. [25.18] s 106 …. [25.18] s 107 …. [25.18] s 109 …. [25.18] s 109(1)(c) …. [25.18] s 115(1) …. [25.18] s 115(2) …. [25.18] s 122 …. [25.1] s 122(3) …. [25.1] Sch …. [25.2], [25.5], [25.8] Retail Shop Leases Regulation 2006 …. [25.1]

reg 4 …. [25.10] reg 8(1) …. [25.2] Sch …. [25.2] Trusts Act 1973 s 32 …. [5.17], [5.18] ss 37–39 …. [5.17], [5.18] ss 57–58 …. [5.17] s 66 …. [5.18] s 94 …. [5.17], [5.18] ss 94–97 …. [5.17] s 95 …. [5.17] Valuation of Land Act 1944 …. [11.5] Valuers Registration Act 1992 …. [25.8] SOUTH AUSTRALIA Administration and Probate Act 1919 s 47(b) …. [5.18] Community Titles Act 1996 …. [27.11] Criminal Law Consolidation Act 1935 s 243 …. [21.3] Crown Proceedings Act 1992 …. [5.6] Fair Trading Act 1987 …. [12.15], [20.1] s 56 …. [12.15] s 57 …. [12.15] s 58 …. [12.15] s 59 …. [12.15] s 64 …. [12.15] s 68 …. [12.15] Guardianship and Administration Act 1993

s 39 …. [5.4] Landlord and Tenant Act 1936 Pt II …. [11.3] Pt IV …. [27.1] s 4 …. [11.25], [19.3] s 4(1) …. [17.14] s 4(2) …. [19.3] s 5 …. [11.25], [19.3] s 7 …. [11.25] s 9 …. [11.25], [19.3] s 10 …. [2.5], [13.11], [17.15], [17.20], [18.1], [18.2] s 11 …. [19.4] s 12(4) …. [27.16] s 12(5) …. [18.3] s 12(6) …. [18.2] s 47 …. [7.7], [17.18] s 50 …. [20.16] Landlord and Tenant (Commercial Tenancies) Regulations …. [27.1] Law of Property Act 1936 …. [27.17] s 5 …. [19.6] s 13 …. [16.8] s 15 …. [15.20] s 24 …. [5.2] s 26 …. [1.6], [4.3], [14.5] s 28 …. [1.6] ss 28–30 …. [15.17], [16.12] s 28(2)(c) …. [16.12] s 28(2)(d) …. [15.17] s 29 …. [1.6]

s 30 …. [1.6] s 30(2) …. [1.6] s 40(3) …. [5.15] s 41(5) …. [1.6] ss 63–68 …. [16.22] s 64 …. [11.3] ss 92–111 …. [5.5] s 92(1) …. [5.5] s 112 …. [14.10], [18.10] s 246 …. [1.16] Powers of Attorney and Agency Act 1984 s 5 …. [5.13] s 13 …. [5.13] Real Property Act 1886 …. [27.17] s 69(h) …. [4.8], [5.16] s 69(VIII) …. [14.5] s 94 …. [19.2] s 118 …. [5.16] s 124 …. [7.1] s 125 …. [7.1] s 137 …. [7.4], [15.20] s 152 …. [15.21] s 262 …. [7.1] Residential Tenancies Act 1978 …. [11.3] Residential Tenancies Act 1995 …. [27.6] s 97 …. [27.17] Retail and Commercial Leases Act 1995 (formerly Retail Shop Leases Act 1995) …. [27.1], [27.6], [27.17] Pt 4A …. [27.1]

Pt 8 …. [27.15] Pt 9 …. [27.18] Pt 10 …. [27.5], [27.17] s 3(1) …. [27.2], [27.5], [27.11], [27.12], [27.18] s 4(1) …. [27.2] s 4(2)(a) …. [27.2] s 4(2)(b) …. [27.2] s 4(2)(c) …. [27.2] s 4(3) …. [27.2] s 6 …. [27.2] s 7 …. [27.18] s 9 …. [27.18] s 11 …. [27.4] s 12 …. [27.3] s 12(1) …. [27.3] s 12(2) …. [27.3] s 12(3) …. [27.3] s 12(5) …. [27.3] s 12(6) …. [27.3] s 13 …. [27.15] s 13(1)(b) …. [27.15] s 13(3) …. [27.15] s 14(1) …. [27.5] s 15(1) …. [27.5] s 15(2) …. [27.5] s 15(2)(a) …. [27.5] s 15(2)(b) …. [27.5] s 15(3) …. [27.5]

s 18 …. [27.11] s 18(1) …. [27.12] s 18(2) …. [27.12] s 18(3) …. [27.12] s 19 …. [27.5] s 19(1) …. [27.5] s 19(1)(b) …. [27.5] s 19(2) …. [27.5] s 19(5) …. [27.5] s 20 …. [27.5], [27.7] s 20(4) …. [27.5] s 20(5) …. [27.5] s 20(6) …. [27.5] ss 20A–20N …. [27.1] s 20B …. [27.7] s 20B(1) …. [27.7] s 20B(2) …. [27.7] s 20B(3) …. [27.7] s 20B(3)(a) …. [27.7] s 20D(1) …. [27.7] s 20D(2) …. [27.7] s 20D(3) …. [27.7] s 20D(3)(b) …. [27.7] s 20E …. [27.7] s 20F …. [27.7] s 20G …. [27.7] s 21(2) …. [27.10] s 21(2)(b) …. [27.10] s 22 …. [27.8]

s 22(1) …. [27.8] s 22(2) …. [27.8] s 22(4) …. [27.8] s 23 …. [27.8] s 23(1)(a) …. [27.8] s 23(1)(b) …. [27.8] s 23(1)(c) …. [27.8] s 24 …. [27.9] s 24(1) …. [27.9] s 24(1)(m) …. [27.9] s 24(2) …. [27.9] s 24(3)–(4) …. [27.9] s 24(6) …. [27.9] s 29 …. [27.10] s 29(b)–(c) …. [27.10] ss 31–34 …. [27.10] s 31(1)(a) …. [27.10] s 31(1)(b) …. [27.10] s 31(2) …. [27.10] s 33 …. [27.10] s 33(a) …. [27.10] s 33(c) …. [27.10] s 34 …. [27.10] s 34(1) …. [27.10] s 34(2) …. [27.10] s 35 …. [27.8] s 35(1)(a) …. [27.8] s 35(1)(b) …. [27.8]

s 35(1)(c) …. [27.8] s 36 …. [27.8] s 36(1)(a) …. [27.8] s 36(1)(c) …. [27.8] s 36(2) …. [27.8] ss 37–40 …. [27.11] s 37(2) …. [27.12] s 38 …. [27.6], [27.12] s 38(1) …. [27.12] s 38(1)(a)–(d) …. [27.12] s 38(2) …. [27.12] s 38(3) …. [27.12] s 38(3)(a)–(d) …. [27.12] s 38(4)(a) …. [27.12] s 38(4)(b) …. [27.12] s 39 …. [27.12] s 39(1) …. [27.12] s 39(1)(b) …. [27.12] s 39(1)(c) …. [27.12] s 39(2) …. [27.12] s 40 …. [27.12] s 40(1)(c) …. [27.17] s 40(1)(d) …. [27.17] s 40(1)(e) …. [27.17] s 40(2) …. [27.12] s 41 …. [27.14] s 43 …. [27.16] ss 43–46 …. [27.16] s 44(1) …. [27.5], [27.16]

s 44(2) …. [27.5] s 44(3) …. [27.16] s 45 …. [27.16] s 45(d) …. [27.16] s 46 …. [27.16] s 51 …. [27.14] s 53 …. [27.15] s 53(2) …. [27.15] s 54 …. [27.13] ss 54–56 …. [27.13] ss 54–57 …. [27.11] s 55 …. [27.13] s 56 …. [27.13] s 57 …. [27.13] s 57(a) …. [27.13] s 57(b) …. [27.13] s 57(c) …. [27.13] s 57(d) …. [27.13] s 57(f) …. [27.13] s 58 …. [27.14], [27.17] s 59 …. [27.14] s 60(1) …. [27.14] s 61 …. [27.11] s 61(1) …. [27.14] s 61(3) …. [27.15] s 63 …. [27.18] s 64(1) …. [27.18] s 65 …. [27.18]

s 66 …. [27.18] s 67(1) …. [27.18] s 67(2) …. [27.18] s 68(1) …. [27.18] s 68(2) …. [27.18] s 69 …. [27.18] s 70(3) …. [27.5] s 73 …. [27.1] s 74 …. [27.1] s 76 …. [27.17] s 76(1)(a) …. [27.17] s 76(1)(b) …. [27.17] s 76(2) …. [27.17] s 76(4) …. [27.17] s 76(5) …. [27.17] s 76(6) …. [27.17] s 76(7) …. [27.17] s 77 …. [27.2] s 79(1) …. [27.14] s 79(2)–(3) …. [27.14] s 81(2) …. [27.1] s 81(2)(b) …. [27.1] Retail and Commercial Leases Regulations 2010 …. [27.1] Retail and Commercial Leases Regulations 1995 (formerly Retail Shop Lease Regulations 1995) …. [27.1] reg 4(2) …. [27.2] reg 5 …. [27.3] reg 6 …. [27.12] reg 7 …. [27.7]

reg 12 …. [27.1], [27.17] Sch 1 …. [27.3] Statutes Amendment (Commercial Tenancies) Act 1985 …. [27.1] Statutes Amendment and Repeal (Australian Consumer Law) Act 2010 s 7 …. [12.16] Strata Titles Act 1988 …. [27.11] Trustee Act 1936 s 25c …. [5.17] s 26 …. [5.17] s 26a …. [5.17] s 30 …. [5.18] s 31 …. [5.18] s 59b …. [5.17] s 59c …. [5.17] TASMANIA Administration and Probate Act 1935 …. [5.18] Aliens Act 1913 s 3 …. [5.2] Apportionment Act 1871 …. [16.22] s 2 …. [11.3] Australian Consumer Law (Tasmania) Act 2010 s 6 …. [12.16] Australian Consumer Law (Tasmania) (Consequential Amendments) Act 2010 …. [12.16] Common Law Procedure Act 1854 s 183 …. [17.14], [19.3] Conveyancing and Law of Property Act 1884 ss 10–11 …. [15.19]

s 12 …. [20.16] s 15 …. [2.5], [13.11], [17.20] s 15(1) …. [17.15], [18.1], [18.2] s 15(2) …. [19.4] s 15(3) …. [19.6] s 15(6) …. [18.3], [19.1], [19.6] s 15(7) …. [18.3] s 15(8) …. [18.2] s 16 …. [7.7], [17.18] s 19 …. [5.16] s 19(2) …. [5.18] s 20 …. [5.16] s 36 …. [1.6], [4.3], [14.5] s 60(1) …. [1.6] s 60(1)–(4) …. [15.17], [16.12] s 60(1)(c) …. [16.12] s 60(1)(d) …. [15.17] s 60(2) …. [1.6] s 60(3) …. [1.6] s 60(4) …. [1.6] s 62(2) …. [5.15] s 71 …. [15.18], [15.20] s 71A …. [15.18], [15.20] s 82 …. [16.3], [16.10] s 83 …. [11.27] s 85 …. [14.10], [18.10] s 86 …. [15.20] Fair Trading Act 1990 …. [12.15], [20.1] s 14 …. [12.15]

s 15 …. [12.15] s 16 …. [12.15] s 17 …. [12.15] s 21 …. [12.15] s 25 …. [12.15] Land Titles Act 1980 s 3 …. [12.3] s 40(1)(d) …. [4.8], [14.5] s 40(3)(d) …. [5.16] s 57 …. [7.1] s 60 …. [12.3] s 64(3) …. [5.16] s 66 …. [7.1] s 67 …. [7.1] s 82 …. [15.20] Landlord and Tenant Act 1935 Pt V …. 11.3 Married Womens Property Act 1935 …. [5.5] s 3 …. [5.5] Powers of Attorney Act 1934 s 23 …. [4.2], [5.13], [14.7] Supreme Court Civil Procedure Act 1932 s 11(4) …. [16.8] s 11(14) …. [11.25], [19.3] s 11(14A) …. [11.25] Trustee Act 1898 Pt V …. [5.18] s 47 …. [5.17]

s 55 …. [5.17] VICTORIA Administration and Probate Act 195 s 44(1) …. [5.18] Administrative Arrangements Act 1983 …. [23.22] Arbitration Act 1958 …. [4.2], [14.7] Australian Consumer Law and Fair Trading Act 2012 …. [11.2], [16.36], [23.65] Pt 4.2 …. [16.36] Pt 4.2, Div 2 …. [16.36] s 54 …. [16.36] s 54(1) …. [16.36] s 55 …. [16.36] s 56 …. [16.36] s 56(2)(a) …. [16.36] s 56(5) …. [16.36] s 57 …. [16.36] ss 58–67 …. [16.36] s 58(1) …. [16.36] s 58(2) …. [16.36] s 60 …. [16.36] s 61 …. [16.36] s 62 …. [16.36] s 65 …. [16.36] s 66 …. [16.36] s 67 …. [16.36] s 68 …. [16.36] s 69 …. [16.36]

s 72 …. [16.36] s 73 …. [16.36] s 74 …. [16.36] s 75 …. [16.36] s 182 …. [23.65] Building Act 1993 …. [23.44] Companies Act 1961 s 296 …. [16.25] Crimes Act 1958 s 207 …. [21.3] 207(1) …. [21.3] s 207(2) …. [21.3] s 207(3) …. [21.3] Crown Land (Reserves) Act 1978 …. [23.59] Crown Proceedings Act 1958 Pt II …. [5.6] Evidence Act 1958 …. [23.62] Fair Trading Act 1999 …. [12.1], [12.15], [20.1], [23.58], [23.64], [23.65] s 3 …. [23.65] s 8A …. [23.55] ss 8A–8B …. [12.15] s 9 …. [12.15] s 11 …. [12.15] s 12 …. [12.15] s 20 …. [12.15] s 30 …. [12.15] s 107 …. [23.65] s 159(3) …. [23.55] Fair Trading Amendment (Australian Consumer Law) Act 2010

s 9 …. [12.16] Hire Purchase Act 1959 s 27 …. [10.5] Imperial Acts Application Act 1922 Pt III, Div 7 …. [21.3] Instruments Act 1958 s 126 …. [1.6], [4.3], [4.4], [14.5], [23.24], [23.26] s 127 …. [4.3] Interpretation of Legislation Act 1984 ss 14-16 …. [11.26] s 14(2) …. [23.9] s 17 …. [23.35] Land Act 1958 …. [5.6], [11.8] Landlord and Tenant Act 1948 …. [5.15] Landlord and Tenant Act 1958 …. [23.40] Pt IV …. [2.8] Pt IVA …. [16.36] Pt V …. [2.3], [2.12], [5.6] s 8 …. [11.28] s 9 …. [17.17] s 10 …. [17.17] s 12 …. [11.1], [11.3], [11.26] s 26 …. [10.4] s 28 …. [10.5] s 28(2) …. [10.5], [23.40] s 29 …. [20.8] s 30 …. [16.1] s 32 …. [16.36], [20.6]

s 32(2) …. [2.8], [20.5], [20.6] s 32AA …. [20.32] s 33 …. [4.8], [13.2], [14.5] s 35 …. [10.4] s 42 …. [20.8] ss 42A–42F …. [16.36] s 42B …. [16.36] s 42B(1) …. [16.36] s 43(1) …. [11.2], [15.4] s 43(2) …. [2.3] s 48 …. [1.6] s 50 …. [5.6] s 82 …. [2.3] s 82(6)(b) …. [18.4] s 85(1) …. [1.9] s 103 …. [20.32] Sch 3 …. [7.1] Landlord and Tenant (Amendment) Act 1948 s 18 …. [11.1] Local Government Act 1989 …. [23.59] s 190(1) …. [5.7] s 190(2) …. [5.7] s 190(4) …. [5.7] s 191 …. [5.7] Marriage Act 1958 Pt VIII …. [5.5] s 156(1) …. [5.5] Pharmacists Act 1974 s 22(3)(iii) …. [23.41]

Power of Attorney Act 2014 s 12 …. [5.13] s 27 …. [5.13] Property Law Act 1958 …. [16.14], [23.7], [23.54], [23.57], [23.63] Pt II …. [14.10] Pt V …. [18.4] s 18 …. [5.15] s 18(1) …. [1.12], [15.15] s 27 …. [5.2] s 35(1) …. [5.17], [5.18] s 44(2) …. [4.1] s 52 …. [1.6], [15.17], [16.12], [16.14] ss 52–54 …. [1.6], [4.3], [15.17], [16.12] s 52(1) …. [16.12], [16.14] s 52(2) …. [15.17], [16.12] s 52(2)(c) …. [16.14] s 53 …. [1.6], [4.3] s 53(1) …. [1.6], [16.14] s 53(1)(a) …. [1.6], [4.3], [15.17], [16.12], [16.14] s 54 …. [1.6], [4.3] s 54(1) …. [1.6] s 54(2) …. [1.6], [4.3], [15.17], [16.12], [16.13], [16.14] s 56 …. [15.2] s 72(4) …. [5.15] s 73A …. [1.6] s 77(1)(c) …. [15.21] s 78 …. [15.20] s 79 …. [15.18], [15.20]

s 82 …. [5.15] s 84 …. [17.13] s 86 …. [5.16] s 99 …. [5.16] s 99(17) …. [5.10] s 100 …. [5.16] s 134 …. [15.20] s 136 …. [17.20], [18.5] s 137 …. [15.9] s 139 …. [16.3], [16.10] s 140 …. [20.16] s 141 …. [7.4], [15.20], [20.8] ss 141–142 …. [15.19], [15.20] s 141(2) …. [15.19] s 142 …. [15.20] s 143 …. [7.7], [17.18] s 144 …. [6.7], [15.6], [15.9], [15.15], [23.34] s 144(1) …. [7.11], [15.6] s 146 …. [2.5], [13.11], [14.6], [17.18], [17.20], [18.2], [18.4], [18.5], [18.9], [18.10], [19.2], [19.4], [23.39], [23.63] s 146(1) …. [17.15], [18.1], [18.2], [18.3], [18.5], [18.7], [18.9] s 146(1A) …. [23.63] s 146(2) …. [19.1], [19.4], [19.6], [23.63] s 146(4) …. [19.1], [19.4], [19.6] s 146(5)(e) …. [19.6] s 146(6) …. [5.6], [19.1], [19.4] s 146(8) …. [18.3] s 146(9) …. [18.3], [18.4] s 146(9)(e) …. [18.3]

s 146(10) …. [18.3], [18.4] s 146(11) …. [19.4] s 146(12) …. [18.3], [23.63] s 147 …. [18.2] s 148 …. [7.7], [17.18] s 149(1) …. [1.10], [1.16] s 149(3) …. [1.10] s 149(5) …. [1.9] s 151 …. [1.14], [11.3] s 152 …. [5.19] s 153(1) …. [11.27] s 154A …. [10.5], [23.40] s 185 …. [16.8] s 198 …. [11.9], [14.10], [18.10], [20.29], [23.57] s 198(2) …. [18.10], [23.57] s 198(3) …. [18.10], [23.57] s 198(4) …. [14.10], [18.10], [23.57] s 198(5) …. [14.10] Residential Tenancies Act 1997 …. [23.23] Retail Leases Act 2003 …. [23.1], [23.3], [23.4], [23.5], [23.6], [23.7], [23.8], [23.9], [23.14], [23.18], [23.19], [23.21], [23.22], [23.23], [23.31], [23.34], [23.35], [23.37], [23.38], [23.39], [23.39], [23.40], [23.41], [23.43], [23.44], [23.46], [23.47], [23.54], [23.58], [23.59] Pt 3 …. [23.18], [23.40], [23.62] Pt 5, Div 4 …. [23.20] Pt 8 …. [23.45], [23.46], [23.56] Pt 9 …. [23.11], [23.62] Pt 10 …. [23.7], [23.10], [23.11], [23.26], [23.37], [23.39], [23.40], [23.45], [23.54], [23.58], [23.62], [23.63]

Pt 10, Div 3 …. [23.58] Pt 10, Div 4 …. [23.62] Pt 12 …. [23.5] Pt 13 …. [23.5] s 1 …. [23.63] s 2 …. [23.9], [23.11], [23.63] s 2(3) …. [23.11] s 2(5) …. [23.11] s 3 …. [23.20], [23.37], [23.40], [23.41], [23.43], [23.44], [23.45], [23.46], [23.47], [23.54] s 3(1) …. [26.2] s 4 …. [23.18], [23.46] s 4(1) …. [23.18], [23.19], [23.20], [23.23] s 4(1)(b) …. [23.18] s 4(2) …. [23.11], [23.18], [23.20] s 4(2)(a) …. [23.18], [23.20] s 4(2)(b) …. [23.21] s 4(2)(c) …. [23.21] s 4(2)(d) …. [23.21] s 4(2)(d)(i) …. [23.21] s 4(2)(e) …. [23.18], [23.22] s 4(2)(f) …. [23.22], [23.59] s 4(2)(g) …. [23.21], [23.22] s 4(2)(h) …. [23.22] s 4(3) …. [23.20] s 4(3)(a) …. [23.20] s 4(3)(b) …. [23.20] s 4(3)(c) …. [23.20] s 4(4) …. [23.20]

s 5 …. [23.18], [23.22], [23.58], [23.59] s 5(1)(c) …. [23.59] s 5(1)(d) …. [23.21], [23.22] s 5(1)(e) …. [23.22] s 5(1A) …. [23.22], [23.59] s 5(1B) …. [23.22] s 6 …. [23.43], [23.44], [23.47] s 6(1) …. [23.47] s 6(2) …. [23.47] s 7 …. [23.11], [23.12], [23.18], [23.39], [23.46] s 7(a) …. [23.12] s 7(b) …. [23.12] s 7(c) …. [23.12] s 8 …. [23.13] s 9 …. [23.25], [23.27], [23.29], [23.33], [23.36], [23.37], [23.39], [23.40], [23.59] s 9(1) …. [23.16] s 9(1)(b) …. [23.16], [23.38] s 9(2) …. [23.16] s 9(3) …. [23.16] s 10 …. [23.15], [23.40] s 11 …. [23.11], [23.15], [23.36], [23.40], [23.46], [23.63] s 11(1) …. [23.11], [23.38], [23.63] s 11(1)(a) …. [23.16] s 11(1)(b) …. [23.13] s 11(2) …. [23.11], [23.18], [23.36], [23.63] s 12 …. [23.14], [23.15], [23.36], [23.38], [12.40], [23.59] s 12(1) …. [23.14] s 12(2) …. [23.14], [23.15], [23.36], [23.39], [23.39]

s 12(3) …. [23.38], [23.39] s 12(3)(b)(ii) …. [23.39] s 13 …. [23.11], [23.17] s 14 …. [23.11], [23.17] s 15 …. [23.24], [23.25], [23.28], [23.39] s 15(1) …. [23.25], [23.48] s 15(2) …. [23.25] s 16 …. [23.11], [23.12], [23.24], [23.28] s 16(1) …. [23.24] s 16(1)(a) …. [23.39] s 16(2) …. [23.24] s 17 …. [23.38], [23.39], [23.40], [23.48] s 17(1) …. [23.39], [23.39] s 17(1)(a) …. [23.39] s 17(1)(b) …. [23.39] s 17(1A) …. [23.38] s 17(1A)(b) …. [23.38] s 17(2) …. [23.39], [23.40] s 17(3) …. [23.39] s 17(3)(b) …. [23.45] s 17(3)(c) …. [23.38], [23.39] s 17(4) …. [23.38], [23.39] s 17(4)(c) …. [23.38] s 17(5) …. [23.38], [23.39] s 17(5)(a) …. [23.39] s 17(6) …. [23.38], [23.39] s 17(6)(b) …. [23.38] s 17(7) …. [23.38] s 18 …. [23.26], [23.38], [23.39]

s 18(1) …. [23.39] s 18(2) …. [23.39] s 18(3) …. [23.26], [23.39] s 18(4) …. [23.26], [23.39] s 18(5) …. [23.16], [23.39] s 19 …. [23.26], [23.39] s 21 …. [23.14], [23.15], [23.36], [23.55] s 21(1)–(4) …. [23.36] s 21(1) …. [23.16], [23.36], [23.39] s 21(2) …. [23.16], [23.36] s 21(2)(a) …. [23.36] s 21(2)(b) …. [23.36] s 21(2A) …. [23.14], [23.36] s 21(3) …. [23.14] s 21(4) …. [23.36] s 21(5) …. [23.36], [23.58] s 21(5A) …. [23.36] s 21(6) …. [23.36] s 21(7) …. [23.36] s 22 …. [23.26], [23.48] s 22(1) …. [23.26] s 22(2) …. [23.26] s 22(2)(a) …. [23.26] s 22(3) …. [23.26] s 22(4) …. [23.26] s 23 …. [23.37] s 23(1) …. [23.37] s 23(2) …. [23.10], [23.37]

s 23(3) …. [23.37] s 23(3)(a) …. [23.37] s 23(3)(b) …. [23.37] s 23(4) …. [23.37], [23.62] s 23(4)(b) …. [23.37] s 24 …. [23.8], [23.42] s 24(1) …. [23.42] s 24(1)(a) …. [23.42] s 24(1)(b) …. [23.42] s 24(1)(d) …. [23.42] s 24(2) …. [23.42] s 25 …. [23.27], [23.28], [23.48], [23.58] s 25(c) …. [23.27] s 26 …. [23.38], [23.39], [23.39], [23.40], [23.48] s 26(1) …. [23.38], [23.39], [23.39] s 26(1)(b) …. [23.38], [23.39] s 26(2) …. [23.39] s 26(3) …. [23.38], [23.39], [23.40] s 26(4) …. [23.39] s 26(4)(c) …. [23.39] s 26(5) …. [23.39] s 26(6) …. [23.39] s 27 …. [23.30], [23.39] s 27(2) …. [23.30], [23.39] s 28 …. [23.15], [23.31], [23.39] s 28(1) …. [23.31] s 28(2) …. [23.31], [23.32] s 28(2)(a) …. [23.31] s 28(2)(c) …. [23.31]

s 28(3) …. [23.31] s 28(4) …. [23.32] s 29 …. [23.44] s 30 …. [23.8] ss 30–32 …. [23.53] s 31 …. [23.40], [23.46], [23.51] s 31(2)(a) …. [23.46] s 33 …. [23.41] s 33(1) …. [23.41] s 33(2) …. [23.41] s 33(3) …. [23.41] s 33(4) …. [23.41] s 33(4)(a)–(l) …. [23.41] s 33(4)(c) …. [23.41] s 33(4)(f) …. [23.41] s 33(4)(k) …. [23.41] s 34 …. [23.41], [23.62] s 34(1) …. [23.41] s 34(1)(b) …. [23.41] s 34(2) …. [23.41] s 35 …. [23.10], [23.11], [23.40], [23.62] s 35(1) …. [23.40] s 35(2) …. [23.40], [23.41] s 35(3) …. [23.10], [23.40], [23.41] s 35(4) …. [23.40] s 35(4)(a) …. [23.40] s 35(4)(b) …. [23.40] s 35(4)(c) …. [23.40]

s 35(4)(e) …. [23.40] s 35(5) …. [23.40] s 35(6) …. [23.10], [23.40] s 35(7) …. [23.40], [23.41] s 35(8) …. [23.40] s 36 …. [23.8], [23.11], [23.13], [23.40] s 37 …. [23.36], [23.40], [23.62] s 37(2) …. [23.40] s 37(3) …. [23.40] s 37(4) …. [23.40] s 37(4)–(7) …. [23.40] s 37(5) …. [23.40] s 37(6) …. [23.40] s 37(7) …. [23.40] s 37(7)(b) …. [23.40] s 38 …. [23.40], [23.58], [23.59] s 38(1) …. [23.40], [23.54] s 38(2) …. [23.40] s 38(3) …. [23.40], [23.54] s 38(4) …. [23.40], [23.54] s 39 …. [23.43], [23.44], [23.46], [23.47], [23.49] s 39(1) …. [23.44] s 39(1)(a)–(c) …. [23.44] s 39(2) …. [23.44] s 40 …. [23.43], [23.44], [23.46], [23.47] s 40(1) …. [23.43] s 40(2) …. [23.43] s 41 …. [23.46], [23.49] s 41(1) …. [23.46]

s 41(1)(a)–(d) …. [23.46] s 41(2) …. [23.46], [23.49] s 42 …. [23.46] s 43 …. [23.46] s 44 …. [23.46] s 45 …. [23.46] s 46 …. [23.8], [23.44], [23.45], [23.46] ss 46–48 …. [23.44] s 46(1) …. [23.45] s 46(2) …. [23.45] s 46(3) …. [23.45] s 46(3)(b) …. [23.45] s 46(4) …. [23.45] s 47 …. [23.8], [23.44], [23.45] s 47(2) …. [23.45] s 47(3) …. [23.45] s 47(3)(a) …. [23.45] s 47(4) …. [23.45] s 47(5) …. [23.45] s 47(5)(a) …. [23.45] s 47(5)(b) …. [23.45] s 47(6) …. [23.45] s 47(7) …. [23.45] s 48 …. [23.8], [23.44], [23.45], [23.46] s 48(1) …. [23.45] s 48(2) …. [23.45] s 48(3) …. [23.45] s 48(4) …. [23.45]

s 49 …. [23.11] s 49(1) …. [23.46] s 49(1)(a) …. [23.46] s 49(1)(a)(i) …. [23.46] s 49(1)(a)(ii) …. [23.46] s 49(2) …. [23.46] s 49(3) …. [23.46] s 49(6) …. [23.46] s 50 …. [23.11], [23.46] s 50(2) …. [23.46] s 51 …. [23.37], [23.46], [23.48] s 51(1) …. [23.48] s 51(1)(a) …. [23.48] s 51(1)(b) …. [23.48] s 51(1)(c) …. [23.48] s 51(2) …. [23.48] s 52 …. [10.7], [23.8], [23.12], [23.23], [23.44], [23.46], [23.48], [23.49], [23.59] s 52(1)–(3) …. [23.59] s 52(2) …. [23.49], [23.59] s 52(2)(a) …. [23.49] s 52(2)(a)–(c) …. [23.59] s 52(2)(b) …. [23.49] s 52(2)(c) …. [23.49], [23.59] s 52(3) …. [23.49], [23.59] s 52(4) …. [23.23], [23.49], [23.59] s 52(5) …. [23.49] s 52(5)(b) …. [23.49] s 53 …. [23.8], [23.50], [23.54]

s 54 …. [23.8], [23.40], [23.54] s 54(1) …. [23.54] s 54(2) …. [23.54] s 54(2)(b) …. [23.54] s 54(2)(f) …. [23.54] s 54(3) …. [23.54] s 54(4) …. [23.54] s 54(4)(b) …. [23.54] s 54(5) …. [23.54] s 55 …. [23.51] ss 55–58 …. [23.54] s 55(1) …. [23.51] s 55(2) …. [23.51] s 55(3) …. [23.51] s 55(4) …. [23.51] s 55(5) …. [23.51] s 55(7) …. [23.51] s 56 …. [23.8], [23.52] s 56(2) …. [23.52] s 56(3) …. [23.52] s 56(4) …. [23.52] s 56(5) …. [23.52] s 56(6) …. [23.52] s 57 …. [23.8], [23.49] s 57(1) …. [23.49] s 57(1)(a) …. [23.49] s 57(1)(b) …. [23.49] s 57(1)(c) …. [23.49] s 57(1)(d) …. [23.49]

s 57(2) …. [23.49] s 57(3) …. [23.49] s 58 …. [23.53] s 59 …. [23.53], [23.54] s 59(2) …. [23.53] s 60 …. [23.34] ss 60–62 …. [23.37] s 60(1)(b) …. [23.34] s 61 …. [23.8], [23.34], [23.38] s 61(1)(d) …. [23.34] s 61(2) …. [23.34] s 61(3) …. [23.34], [23.38], [23.39], [23.39], [23.48] s 61(3)–(5A) …. [23.39], [23.39] s 61(4) …. [23.34], [23.35], [23.38], [23.39], [23.39] s 61(5) …. [23.34], [23.38], [23.39], [23.39], [23.48] s 61(5A) …. [23.34], [23.35], [23.38], [23.39], [23.39], [23.48] s 61(6) …. [23.34] s 62 …. [23.35], [23.39], [23.39] s 62(1) …. [23.35] s 62(1)(a) …. [23.35] s 62(2) …. [23.35] s 63 …. [23.34], [23.37] s 64 …. [23.15], [23.33], [23.39] s 64(1) …. [23.33] s 64(2) …. [23.33] s 64(3) …. [23.33] s 64(4)(a) …. [23.33] s 64(4)(b)(i) …. [23.33]

s 64(5) …. [23.33] s 65 …. [23.41], [23.46], [23.56] s 66 …. [23.56] s 67 …. [23.41], [23.56] s 68 …. [23.8], [23.56] s 69 …. [23.46] ss 69–72 …. [23.45], [23.46], [23.56] s 70 …. [23.8], [23.46] ss 70–72 …. [23.46] s 71 …. [23.8], [23.46] s 71(2) …. [23.46] s 71(3) …. [23.46] s 71(4) …. [23.46] s 72 …. [23.8], [23.46], [23.56] s 72(2) …. [23.46] s 72(3) …. [23.46] s 73 …. [23.56] s 74 …. [23.56] s 75 …. [23.56] s 75(1) …. [23.56] s 75(2) …. [23.56] s 76 …. [23.11], [23.13] s 76(1) …. [23.11] s 76(2) …. [23.11] s 77 …. [23.55] s 77(1) …. [23.55] s 77(2) …. [23.55] s 77(2)(d)(ii) …. [23.55] s 78 …. [23.55]

s 78(1) …. [23.55] s 78(2) …. [23.55] s 79 …. [23.55] s 80 …. [23.55] s 80(2) …. [23.55] s 81 …. [23.63] ss 81–83 …. [23.62] s 81(1) …. [23.63] s 81(1)(a) …. [23.62] s 81(1)(b) …. [23.62] s 81(1)(c) …. [23.62], [23.63] s 81(2) …. [23.62] s 82 …. [23.63] s 83 …. [23.11] s 84 …. [23.58] s 84(1)(g) …. [23.58] s 84(1A) …. [23.58] s 85 …. [23.58] ss 85–88 …. [23.58] s 86 …. [23.58], [23.62] s 86(1) …. [23.58] s 86(2) …. [23.58] s 86(2A) …. [23.58] s 86(3) …. [23.58] s 86(4) …. [23.58] s 86(5) …. [23.58] s 86(6) …. [23.58] s 87 …. [23.58]

s 87(1) …. [23.58], [23.61] s 88 …. [23.58] s 89 …. [11.25], [23.62] s 89(1) …. [23.63] s 89(2) …. [19.3], [23.63] s 89(3) …. [19.3] s 89(4) …. [23.63] s 91 …. [23.54], [23.64] s 91(1)(b) …. [23.54] s 92 …. [19.3], [23.54], [23.58], [23.62] s 92(2)(b) …. [23.58] s 93 …. [23.48], [23.61] s 93(1) …. [23.61] s 94 …. [23.10], [23.36], [23.46], [23.48], [23.54] s 94(3) …. [23.37] s 94A …. [23.63] s 95 …. [23.18], [23.19], [23.23] s 97 …. [23.39], [23.39], [23.45], [23.57] s 97A …. [23.22], [23.59] s 100 …. [23.36] s 101 …. [23.13] s 111 …. [23.13] s 118 …. [23.5] s 119 …. [23.5] s 119(1) …. [23.63] s 119(2) …. [23.62] s 121 …. [23.11], [23.46] s 121(1) …. [23.46] s 121(3) …. [23.46]

s 130 …. [23.48] s 130(3) …. [23.48] s 130(4) …. [23.48] s 130(5) …. [23.48] Retail Leases (Amendment) Act 2005 …. [23.4], [23.5], [23.6], [23.7], [23.9], [23.12], [23.14], [23.16], [23.20], [23.21], [23.22], [23.23], [23.25], [23.26], [23.27], [23.31], [23.33], [23.34], [23.35], [23.36], [23.37], [23.38], [23.40], [23.42], [23.46], [23.49], [23.51], [23.52], [23.55], [23.58], [23.59], [23.63] s 1 …. [23.7], [23.9] s 2 …. [23.4], [23.9] s 3 …. [23.9] s 5 …. [23.18] s 5(2) …. [23.19] s 12(7) …. [23.9] s 16 …. [23.9] s 17 …. [23.9] s 23 …. [23.9] s 37 …. [23.9] s 39 …. [23.9] s 40 …. [23.9] s 41 …. [23.9] s 42 …. [23.9] s 43 …. [23.9] s 45 …. [23.36] s 45(2) …. [23.9] s 51 …. [23.9] s 52 …. [23.9] s 81(1A) …. [23.62]

Pt 3 …. [23.9] Pt 4 …. [23.9] Retail Leases Regulations 2003 …. [23.3], [23.39], [23.39], [23.43], [23.44], [23.46] reg 5 …. [23.20], [23.44] reg 6 …. [23.20] reg 7 …. [23.20] reg 7(1) …. [23.20] reg 7(2) …. [23.20] reg 10 …. [23.20], [23.44] reg 11 …. [23.20], [23.43] reg 12 …. [23.20] reg 13 …. [23.46] Sch 1 …. [23.39], [23.39] Retail Leases Regulations 2013 …. [23.39] reg 5 …. [23.44] reg 6 …. [23.18] reg 7 …. [23.20] reg 9 …. [23.44] reg 10 …. [23.43] Retail Tenancies Act 1986 …. [23.1], [23.2], [23.5], [23.6], [23.8], [23.9], [23.11], [23.12], [23.13], [23.20], [23.34], [23.36], [23.40], [23.46], [23.47], [23.54], [23.62] Pt 2 …. [23.16] Pt 3 …. [23.11], [23.55] Pt 4 …. [23.16] s 3(1) …. [23.18], [23.19], [23.21] s 3(2) …. [23.10] s 3(4) …. [23.12]

s 4 …. [23.11], [23.13] s 4(3) …. [23.16] s 4(4) …. [23.11], [23.17] s 9 …. [23.37] s 10 …. [23.62] s 10(3) …. [23.40] s 11A …. [23.62] s 12 …. [23.41] s 14(1) …. [23.30] s 14(2) …. [23.30] s 14(3) …. [23.31] s 14(4) …. [23.30], [23.31], [23.32] s 14(5) …. [23.30] s 14(6) …. [23.57] s 14(9) …. [23.31] s 15 …. [6.9], [23.47] s 17 …. [23.54] s 17(1) …. [23.54] s 17(2) …. [23.54] s 23 …. [23.57] s 24 …. [23.10] Retail Tenancies (Amendment) Act 1995 …. [23.37] Retail Tenancies (Amendment) Regulations 1995 …. [23.1] Retail Tenancies (Exemption) Regulations 1991 …. [23.1] Retail Tenancies Reform Act 1998 …. [23.1], [23.2], [23.5], [23.6], [23.7], [23.8], [23.9], [23.11], [23.13], [23.18], [23.20], [23.34], [23.36], [23.37], [23.38], [23.39], [23.39], [23.40], [23.41], [23.45], [23.46], [23.47], [23.62] s 3(1) …. [23.18], [23.19], [23.21] s 3(2) …. [23.10]

s 3(4) …. [23.12] s 3(4)(b) …. [23.12] s 4 …. [23.11], [23.13] s 4(1) …. [23.11] s 4(2) …. [23.11], [23.17] s 8 …. [23.12], [23.36], [23.39] s 8(2) …. [23.39] s 8(2)(b) …. [23.39], [23.45] s 8(5) …. [23.39] s 8(5)(a) …. [23.39] s 11(1)(a) …. [23.37] s 11(1)(b)(ii) …. [23.37] s 11(2)(a) …. [23.37], [23.48] s 11(2)(b) …. [23.37], [23.48] s 11(2)(c) …. [23.37] s 11(2)(d) …. [23.37] s 11(2)(e) …. [23.37] s 11(2)(f) …. [23.37] s 11(2)(g) …. [23.37] s 11(4) …. [23.37] s 12(1) …. [23.40] s 12(2) …. [23.40] s 12(3) …. [23.40] s 12(4) …. [23.40] s 12(5) …. [23.40] s 12(5)(c) …. [23.40] s 12(6) …. [23.41] s 12A …. [23.62] s 13(1)–(4) …. [23.41]

s 13(4) …. [23.41] s 13(5) …. [23.41] s 13A …. [23.62] s 14 …. [23.41] s 17(2) …. [23.39] s 17(2)(b) …. [23.39] s 18(1) …. [23.30] s 18(2) …. [23.30] s 18(3) …. [23.31] s 18(4) …. [23.30], [23.31], [23.32] s 18(5) …. [23.30] s 18(7) …. [23.31] s 19 …. [23.48] s 19(1) …. [23.48] s 19(2) …. [23.48] s 19(2)(a) …. [23.48] s 19(2)(b) …. [23.48] s 19(2)(c) …. [23.48] s 19(2)(d) …. [23.48] s 19(2)(e) …. [23.48] s 20 …. [23.43], [23.44], [23.47] s 20(1) …. [23.43] s 20(1)(a) …. [23.43] s 20(1)(b) …. [23.43] s 20(1)(c) …. [23.43] s 20(1)(d) …. [23.43] s 20(1)(e) …. [23.43] s 20(3) …. [23.43]

s 21 …. [23.43], [23.44], [23.45], [23.47] s 21(1) …. [23.44] s 21(1)(a) …. [23.44] s 21(1)(b) …. [23.45] s 21(1)(b)(ii) …. [23.45] s 21(1)(c) …. [23.45] s 21(2)–(7) …. [23.45] s 21(3) …. [23.45] s 21(3)(b) …. [23.45] s 21(4) …. [23.45] s 21(5)(b) …. [23.43] s 21(7) …. [23.45] s 26 …. [23.54] s 26(1) …. [23.54] s 26(2) …. [23.54] s 26(2)(a) …. [23.54] s 26(2)(b) …. [23.54] s 26(2)(c) …. [23.54] s 29 …. [23.48] s 29(1) …. [23.48] s 29(2) …. [23.48] s 46 …. [23.57] s 47 …. [23.10] s 50 …. [23.5] s 52 …. [23.5] Retail Tenancies Regulations 1987 …. [23.1], [23.43] reg 6(1)(a) …. [23.46] reg 6(1)(b) …. [23.46] reg 6(1)(d) …. [23.46]

reg 6(1)(g) …. [23.46] Retail Tenancies Regulations 1998 …. [23.43], [23.46] reg 7(1)(a) …. [23.46] reg 7(1)(c) …. [23.46] reg 7(1)(f) …. [23.46] Retail Tenancies (Rent Review) Act 1991 …. [23.1] Sale of Goods (Vienna Convention) Act 1987 …. [4.3] Sale of Land Act 1962 s 31 …. [14.4] s 32 …. [23.26] s 32(7) …. [23.39] Sale of Land (Amendment) Act 1982 …. [10.1] Settled Land Act 1958 ss 41–47 …. [5.17] ss 44–47 …. [5.17] s 101 …. [5.17] Small Business Commissioner Act 2003 …. [23.7] Small Business Victoria (Repeal) Act 1996 …. [23.7] Statutes Amendment Act 1954 Pt IV …. [20.8] Supreme Court Act 1958 s 114 …. [19.3] s 116 …. [19.6] Supreme Court Act 1986 s 3(1) …. [19.3], [19.6] ss 53–56 …. [11.3], [16.22] s 60 …. [13.4] s 79 …. [1.14], [11.24], [11.25], [17.14], [19.2], [19.3], [19.4]

s 79(5) …. [19.3], [19.6] s 80 …. [11.25], [19.3] s 85 …. [11.25], [19.3] s 85(1) …. [19.3] s 114 …. [19.3] Transfer of Land Act 1958 …. [5.16], [17.20], [23.54] s 40(1) …. [1.6] s 42 …. [7.4], [14.5] s 42(2)(e) …. [1.6], [4.8], [5.16], [6.8], [16.33] s 45(2) …. [12.3] s 67 …. [7.1], [17.14], [17.20] s 67(2) …. [15.21] s 70 …. [17.20], [19.2] s 78 …. [7.4], [15.20] s 78(1) …. [15.20] s 81 …. [5.16], [7.4], [18.5] s 81(1) …. [7.4], [15.20], [18.5] s 81(3) …. [7.4] s 87C …. [5.16] s 87C(a) …. [5.16] s 112 …. [7.1] s 113 …. [11.9] s 131 …. [5.16] Trustee Act 1958 s 32 …. [5.18] s 63 …. [5.17], [5.18] s 63A …. [5.17] Pt II …. [5.17] Unclaimed Money Act 2008 …. [16.36]

Victorian Civil and Administrative Tribunal Act 1998 …. [23.54] s 92 …. [23.58], [23.61] s 92(2)(b) …. [23.61] s 123 …. [23.64] Wrongs Act 1958 …. [16.32] WESTERN AUSTRALIA Commercial Tenancy (Retail Shops) Agreements Act 1985 …. [26.1], [26.7], [26.8], [26.12] s 3(1) …. [26.2], [26.4], [26.9] s 3(4) …. [26.2] s 4 …. [26.2] s 4(1) …. [26.2] s 4(1)(a) …. [26.2] s 4(1)(b) …. [26.2] s 4(2) …. [26.2] s 4(4) …. [26.2] s 5 …. [26.2] s 6 …. [26.3], [26.4] s 6(1) …. [26.3] s 6(2) …. [26.3] s 6(4) …. [26.3] s 6(6) …. [26.3] s 7 …. [26.11] s 7(1) …. [26.11] s 7(1)(a) …. [26.11] s 7(1)(b) …. [26.11] s 7(2) …. [26.11] s 7(2)(a) …. [26.11]

s 7(3) …. [26.11] s 7(4) …. [26.11] s 7(5) …. [26.11] s 8 …. [26.11] s 8(1) …. [26.11] s 9(1) …. [26.4] s 9(1)(a) …. [26.4] s 9(2) …. [26.4], [26.8] s 9(3) …. [26.4] s 10 …. [26.8] s 10(1) …. [26.8] s 10(2) …. [26.8] s 10(3) …. [26.8] s 11 …. [26.10] s 11(1) …. [26.10] s 11(2) …. [26.10], [26.12] s 11(2)(c) …. [26.10] s 11(3) …. [26.10], [26.12], [26.14] s 11(5) …. [26.10], [26.14] s 12(1)(a) …. [26.5] s 12(1)(d)(i) …. [26.5] s 12(1a)(a) …. [26.5] s 12(2) …. [26.5] s 12(3A) …. [26.5] s 12A …. [26.6] s 12A(2) …. [26.6] s 12A(3) …. [26.6] s 12A(3)(c) …. [26.6] s 12A(6) …. [26.6]

s 12B …. [26.6] s 13 …. [26.12], [26.13] s 13(1) …. [26.3], [26.12], [26.13] s 13(1)(a) …. [26.13] s 13(2) …. [26.12] s 13(3)(a) …. [26.12] s 13(3)(b) …. [26.12] s 13(3a) …. [26.12] s 13(4) …. [26.12] s 13(5) …. [26.12] s 13(6) …. [26.13] s 13(7) …. [26.13] s 13(7b) …. [26.13] s 13(8) …. [26.12] s 13A …. [26.12] s 13A(1) …. [26.12] s 13A(2) …. [26.12] s 13A(3) …. [26.12] s 13A(4) …. [26.12] s 13A(5) …. [26.12] s 14 …. [26.9] s 14(e) …. [26.9] s 16(1) …. [26.14] s 16(1)(a) …. [26.14] s 16(1)(b) …. [26.14] s 26(1) …. [26.3], [26.14] s 26(1a) …. [26.14] s 26(1aa) …. [26.14]

s 27 …. [26.14] s 27(1) …. [26.14] s 27(2) …. [26.14] s 27(3) …. [26.14] Commercial Tenancy (Retail Shops) Agreements Regulations 1985 …. [26.1] reg 3A …. [26.2] reg 3AA(1) …. [26.2] reg 3AA(2) …. [26.2] reg 3AB …. [26.2] reg 4 …. [26.3] reg 5 …. [26.11] Form 1 …. [26.3] Form 2 …. [26.11] Sch …. [26.3] Commercial Tenancy (Retail Shops) Agreements Amendment Regulations 2012 …. [26.1] Commercial Tenancy (Retail Shops) Agreements Amendment Act 2011 …. [26.1] Commercial Tenancy (Retail Shops) Agreements Regulations (No 2) 2012 …. [26.1] Common Law Practice Act 1856 s 224 …. [22.4] Criminal Code Act Compilation Act 1913 s 69 …. [21.3] Crown Suits Act 1947 …. [5.6] Distress for Rent Abolition Act 1936 …. [11.3] Fair Trading Act 1987 …. [12.15], [20.1] s 10 …. [12.15] s 11 …. [12.15]

s 12 …. [12.15] s 13 …. [12.15] s 18 …. [12.15] s 22 …. [12.15] Fair Trading Act 2010 s 19 …. [12.16] Law Reform (Statute of Frauds) Act 1962 …. [1.6], [4.3], [14.5] Naturalisation Act 1871 s 2 …. [5.2] Property Law Act 1969 …. [26.13] s 9(2) …. [1.6] s 9(4) …. [1.6] s 18 …. [16.8] s 20 …. [15.20] s 33 …. [1.6] ss 33–35 …. [15.17], [16.12] s 33(1) …. [1.6] s 33(2)(c) …. [16.12] s 33(2)(d) …. [1.6], [15.17] s 34 …. [1.6], [4.3] s 34(1)(a) …. [1.6] s 35 …. [1.6] s 35(2) …. [1.6] s 39 …. [5.15] s 44 …. [5.15] s 47 …. [15.18], [15.20] s 48 …. [15.18], [15.20] s 71 …. [1.6], [2.14], [15.16], [20.6] s 72 …. [2.8]

s 73 …. [7.7], [17.18] s 74(1) …. [1.16] s 74(3) …. [1.10] s 76 …. [20.16] ss 77–78 …. [15.19] s 79 …. [7.7], [17.18] s 80 …. [7.11], [15.6], [15.15] s 80(1) …. [26.8] s 81 …. [2.5], [13.11], [17.20] s 81(1) …. [17.15], [18.1], [18.2], [26.13] s 81(2) …. [19.4], [19.5], [26.13] s 81(4) …. [19.6] s 81(8)(b) …. [19.1] s 81(8)(c) …. [18.3] s 81(9) …. [18.3] s 81(10) …. [18.2] ss 83A–83E …. [14.6] s 84 …. [5.13] ss 130–134 …. [16.22] s 131 …. [11.3] s 135 …. [18.10] Residential Tenancies Act 1987 …. [26.7] Transfer of Land Act 1893 s 68 …. [4.8], [5.16], [14.5] s 91 …. [5.16] s 92 …. [7.1] s 93 …. [7.1] s 95 …. [12.3], [15.21], [26.8]

s 111 …. [15.20] s 116 …. [7.4], [15.20], [18.5] s 131 …. [7.1] s 207 …. [10.5] Trustees Act 1962 s 27 …. [5.17], [5.18] s 62 …. [5.18] s 89 …. [5.17], [5.18] s 90 …. [5.17] UNITED KINGDOM Apportionment Act 1870 …. [16.22] Building Societies Act 1939 s 10 …. [10.6] Common Law Procedure Act 1852 …. [19.6], [22.4] ss 210–212 …. [19.3] s 212 …. [19.6] Conveyancing Act 1881 …. [23.63] s 14 …. [18.2] Conveyancing and Law of Property Act 1881 s 10 …. [15.20], [20.8] s 14 …. [18.6] Defective Premises Act 1972 …. [10.1] Distress for Rent Act 1689 …. [16.36] Distress for Rent Act 1737 (11 Geo 2 c 19) s 18 …. [17.17] Fires Prevention (Metropolis) Act 1774 (14 Geo III c 78) s 83 …. [10.1] Grantees of Reversion Act 1540 (32 Hen 8 c 34) …. [15.19], [15.20]

Housing Act 1974 s 125 …. [10.13] Housing Act 1980 …. [10.1] Judicature Act 1873 (36 & 37 Vict c 66) …. [16.8], [22.4] s 25(4) …. [16.8] s 25(8) …. [10.13] Judicature Act 1883 …. [22.4] s 9 …. [16.8] Land Charges Act 1925 …. [1.15] Landlord and Tenant Act 1730 (4 Geo 2 c 28) s 1 …. [17.17] Pt V …. [17.17] Landlord and Tenant Act 1927 s 18 …. [13.17] s 18(1) …. [10.13] s 19(1)(a) …. [15.6] s 19(3) …. [7.8] Landlord and Tenant Act 1954 Sch 5, Cl 1 …. [15.4] Landlord and Tenant (Covenants) Act 1995 …. [15.1] Law of Property Act 1881 s 10 …. [15.20] Law of Property Act 1925 …. [1.5], [5.3], [5.14], [5.15], [19.6] s 52 …. [1.6], [15.17] ss 52–54 …. [15.17] s 53 …. [1.6], [15.17] s 53(1)(a) …. [15.17] s 54(2) …. [1.6], [15.17] s 77 …. [15.21]

s 78 …. [15.18] s 79 …. [15.18] s 139 …. [16.3] s 141 …. [7.4], [15.20], [20.8] s 144 …. [7.8] s 146 …. [14.6], [17.18], [18.1], [18.6], [18.7], [18.10], [19.1], [19.4] s 146(1) …. [18.2] s 146(2) …. [19.4], [19.6] s 146(4) …. [1.15], [19.1], [19.4], [19.6] s 146(9) …. [19.6] s 146(9)(e) …. [18.3] s 146(10) …. [19.6] s 146(11) …. [18.3] s 149(6) …. [1.5], [2.1] s 205(1)(xxiii) …. [11.1] s 205(1)(xxvii) …. [1.12] Law of Property Act (Amendment) Act 1929 s 1 …. [19.6] Law Reform (Frustrated Contracts) Act 1943 …. [6.10] Limitation Act 1935 s 9 …. [2.19] Lord Cairns Act (Chancery Amendment Act 1858) …. [4.9], [7.8] s 2 …. [1.15] Lord St Leonards Act (Law of Property Act 1859) (22 & 23 Vict c 35) s 27 …. [5.18] s 28 …. [5.18] Real Property Limitation Act 1833 (3 & 4 Will 4 c 27) s 7 …. [2.19]

Rent Act 1968 …. [1.4] Statute of Forcible Entry 1381 …. [21.3] Statute of Frauds 1677 (29 Car II c 3) …. [1.6], [4.3], [4.4], [4.9], [4.10], [23.24] s 1 …. [4.3] s 2 …. [1.6], [4.3] s 3 …. [4.3] s 4 …. [1.6], [4.3], [14.5], [16.12], [16.13], [16.14], [16.15], [16.17], [16.19] Supreme Court Act 1981 s 37 …. [10.13] Town Planning Act s 7 …. [5.6] Variation of Trusts Act (6 & 7 Eliz 2 c 53) …. [5.17] Vendor and Purchaser Act 1874 (44 and 45 Vict c 41) s 13 …. [4.1] NEW ZEALAND Property Law Act 2007 s 210 …. [2.14] s 118 …. [17.18] s 120 …. [14.6] s 121 …. [14.6] UNITED STATES Restatement (Second) Contracts par 202(4) …. [6.6] Uniform Commercial Code 1987 para 2–208 …. [6.6] INTERNATIONAL Vienna Convention on the Law of Treaties 1969

art 62 …. [6.10]

Contents Preface Landlord and Tenant Act Comparative Table Table of Cases Table of Statutes

Chapter 1 — Relationship of Landlord and Tenant The grant and the term granted A contract creating an estate Exclusive possession the touchstone of a lease Exclusive possession and licences Agreement and certainty Requirement as to writing Term and reversion Subleases Concurrent leases Future or reversionary leases Building leases Rent Leaseholds as personalty Tenancy by attornment Leases created by estoppel Abolition of doctrine of interesse termini

Chapter 2 — Kinds of Tenancy The five kinds of tenancy

Tenancy for a fixed term — certainty Automatic expiration Provision for notice — overholding clauses Fixed terms and notices to quit Ejectment of overholding tenant Character of tenancy from year to year Creation and determination of yearly tenancies Yearly tenancy presumed where tenant holds over Holding over after short terms Holding over where weekly rent reserved No presumption in absence of necessary intention Periodic tenancy for less than a year Kind of periodic tenancy dependent upon intention Tenancy at will Entry during negotiations for a lease Entry under contract of sale Encroachments by lessee Termination of tenancy at will Tenancy at sufferance Vesting of tenancy on death

Chapter 3 — Licences Nature of licences Licence distinguished from lease Matters not decisive Lodgers Employees Miscellaneous cases Agreement for a licence Determination Recovery of possession

Chapter 4 — Agreements for a Lease Agreements and leases Uncertainty Statute of Frauds Memorandum and signature Part performance Taking of or continuance in possession Alterations to premises The doctrine of Walsh v Lonsdale Damages Unenforceable agreement as a defence Action for specific performance

Chapter 5 — Capacity to Make and Take Leases Capacity to make and take leases Aliens Infants Persons of unsound mind Married women The Crown Municipalities Statutory corporations Administrators and liquidators Receivers Trustees in bankruptcy Unincorporated associations Agents Persons granting leases to themselves Co-owners Mortgagors and mortgagees Trustees

Personal representatives Leases invalidated by reason of non-compliance with terms of powers under which they are granted Illegality

Chapter 6 — Leases as Contracts Introductory Intention to create legal relations Construction and implication of terms Rectification Fraud, illegality and mistake Frustration Collateral warranty

Chapter 7 — Covenants Introductory Construction Solicitor’s duty Rent and lessor’s covenants Covenant to repair Liability on covenant after assignment Permission to act in breach of covenant Covenants concerning user Covenants for renewal Breach of covenants Covenant against assigning without consent Covenants not to assign or sublet Application of covenants to overholding Covenants not to cause nuisance Covenants for quiet enjoyment Covenants to pay rates and taxes and outgoings

Chapter 8 — Implied Covenants Covenants express or implied Covenants in law Exclusion by express covenant Quiet enjoyment Implied covenant of non-derogation from grant by the landlord Covenant of fitness by landlord of furnished house Covenant by tenant to use and deliver up in tenant-like manner Covenant by tenant to cultivate in husband-like manner Covenant by tenant to deliver up vacant possession Other usual covenants

Chapter 9 — Usual Covenants Usual covenants Usualness a question of fact What are usual covenants?

Chapter 10 — Repairs Landlord’s obligations Implied obligation of tenant as to user Waste Emblements Fixtures Covenants to repair and notice Landlord’s covenants Tenant’s covenants Buildings erected after the demise Construction of covenant Fair wear and tear Accident Remedies for breach

Chapter 11 — Rent Characteristics — at common law and by agreement Rent control legislation Payment of rent Rent review clauses Contribution Payment of rent after notice to quit Occupation pending completion of sale Tender of rent Covenant to pay rent a usual covenant Action for rent Liability for rent damages after abandonment of possession Illegality Rent period as evidence of nature of tenancy Determination of rent by a third person Variation of rent Liquidator and receiver Personal representative Common law demand Relief against forfeiture Distress Enlargement of lease into fee simple Use and occupation

Chapter 12 — Australian Consumer Law and Other Commonwealth Legislation Introduction Restrictive Trade Practices: Competition and Consumer Act Pt IV Consumer Protection: Chapters 2 and 3 Remedies Implementation of the Consumer Law

Chapter 13 — Breach of Contract Introductory Agreement for a lease Tender of lease Measure of damages for failure to grant, take or continue lease Agreement for weekly tenancy Covenants to repair Remedies for breach of covenant Miscellaneous covenants

Chapter 14 — Renewal of Leases Options and covenants for renewal Not generally perpetually renewable Uncertainty First refusal Effect of exercise of option Lessee in breach of covenant Rent to be determined by third person Mode of exercise Time for exercise Service of notice of exercise Relief in equity

Chapter 15 — Assignment and Subletting Assignment Subletting Parting with possession Mesne lessors Power to assign or sublet subject to consent Breach of covenant against assignment or subletting Form of assignment

Position of tenant after assignment Position of assignee Benefit and burden of covenants run with the land Assignee to indemnify lessee

Chapter 16 — Determination of Tenancies Modes of termination ‘Waiver’ after termination Effect on subleases Effect on power of attorney Effluxion of time Operation of condition Exercise of option to determine — break clauses Merger Merger and registered leases Merger and subleases Surrender Express surrender Surrender at law and in equity Statutory provisions Future surrenders Surrender by one tenant Surrender by operation of law Relinquishment of possession Acceptance by tenant of new interest Surrender by personal representative Grant of lease to third person Effect of surrender Forfeiture Notice to quit Disclaimer Acceptance of repudiation

Fundamental terms Removal and disposal of goods left on vacated premises

Chapter 17 — Forfeiture Forfeiture not confined to fixed terms Strict compliance essential The three grounds Lease made voidable only Words of condition Covenant made effective by proviso for re-entry Exercise of option to forfeit Proviso for re-entry Re-entry under a proviso for re-entry Actual re-entry Action to recover possession Issue of writ without service Position prior to judgment Common law demand for rent Notice to remedy Effect of forfeiture Mesne profits — double value and double rent Waiver Relief against forfeiture Registered leases Disclaimer Forfeiture and general principles of contract law

Chapter 18 — Condition of Forfeiture Forfeiture Notice to remedy Notice not required Necessity for notice

Possession claimed by mortgagee Contents of notice Breach incapable of remedy Breach capable of remedy Sufficient period of notice Service of notice Protection of position of lessee

Chapter 19 — Relief from Forfeiture Equitable and statutory relief Non-payment of rent Supreme Court Statutory relief Term of relief Sublessees

Chapter 20 — Notice to Quit Notice to quit Period of notice Period of notice for weekly tenancy Clear days unnecessary Notice must expire at end of period Statutory modification The ambulatory notice Who may give notice Notice by agent Notice by personal representatives and trustees Notice by corporations To whom notice may be given Verbal notices Informality and want of signature Part of demised premises excluded; extraneous premises included

Severance of the reversion Strict or benevolent construction Misdescription of tenancy Variation between notice served on two lessees Date of expiration ‘On or before’; ‘by’; ‘within’ Misdescription of premises Misnomer of landlord Misnomer of tenant Notice referring to other matter Reference to other documents Service Service by post Substituted service Second notice ‘Waiver’ of notice Payment of rent ‘Withdrawal’ of current notice

Chapter 21 — Re-entry by way of Self-help The two senses of re-entry Self-help in the recovery of possession Dangers of direct action Legal proceedings preferable

Chapter 22 — The Old Action of Ejectment Real actions Ejectment Fictions Nineteenth century reforms

Chapter 23 — Retail Tenancies Legislation:

Victoria Background Continuing operation of all retail leases legislation Scope of this chapter Retail Leases Act 2003 (as amended in 2005) Commencement of the 2003 and 2005 Acts Extended operation of the 2003 Act Application of the 2003 Act Meaning of ‘retail premises’ Exceptions to the ‘retail premises’ definition (and application of the Act) Residential areas and retail premises leases Formal requirements with respect to leases Renewals, assignments, subleases and the statutory minimum term Key money and goodwill Disclosure requirements Rent and rent review Turnover rent Security deposits Outgoings and other payments Costs and indemnities Repairs, refurbishment, relocation, demolition, alteration and refitting Compensation for interference Unconscionable conduct of landlord or tenant Additional requirements for shopping centres Miscellaneous provisions Functions of Small Business Commissioner Ministerial Determinations Dispute resolution system — alternative dispute resolution Dispute resolution system — Victorian Civil and Administrative

Tribunal (VCAT)

Chapter 24 — Retail Tenancies Legislation: New South Wales Background Premises subject to the Act Express duties of the landlord Unconscionable conduct and misleading or deceptive conduct proscribed Controls on security bonds Other duties Right to at least five years’ tenancy Rent review Rent based on turnover Rent and other payments Implied terms Prohibited terms Void terms Assignments and subleases Termination of lease Determination of disputes

Chapter 25 — Retail Tenancies Legislation: Queensland Background Premises subject to the Act Express duties of the landlord Unconscionable conduct proscribed Other duties Rent review Rent based on turnover

Rent and other payments Options to renew Implied terms Prohibited terms Assignments and subleases Termination of lease Determination of disputes

Chapter 26 — Retail Tenancies Legislation: Western Australia Background Premises subject to the Act Express duties of the landlord Assignments and subleases Implied terms Rent review Rent based on turnover Right to at least five years’ tenancy Termination of lease Determination of disputes

Chapter 27 — Retail Tenancies Legislation: South Australia Background Premises subject to the Act Express duties of the landlord Other duties Right to at least five years’ tenancy and options to renew the term Rent review Rent based on turnover Rent and other payments

Implied terms Prohibited terms Void terms Assignments and subleases Termination of lease Determination of disputes

Chapter 28 — Retail Tenancies Legislation: Australian Capital Territory Background Premises subject to the Act Express duties of the landlord Controls on security bonds Right to at least five years’ tenancy Rent review Rent and other payments Prohibited and void terms Assignments and subleases Termination of lease Determination of disputes Index

[page 1]

1 Relationship of Landlord and Tenant The grant and the term granted [1.1] The ordinary meaning of the word ‘lease’ was considered by Jacobs JA in Borambil Pty Ltd v O’Carroll [1972] 2 NSWLR 302 at 305–6: … it is necessary to consider the ordinary signification of the word ‘lease’. ‘If the owner of land consents by deed that another person shall occupy the land for a certain time, that is a lease’: Earl of St Germains v Willan [(1823) 2 B & C 216 at 220; 107 ER 363 at 365], per Bayley J. ‘The word lease in law is a well known legal term of well defined import. No lawyer has ever suggested that the title of the lessor makes any difference in the description of the instrument, whether the lease is granted by a freeholder or a copyholder with the licence of the Lord or by a man who himself is a leaseholder. It being well granted for a term of years it is called a lease’: per Jessel MR in Camberwell & South London Building Society v Holloway [(1879) 13 Ch D 754 at 759]. However, although it may be said that usually the word lease is to be taken to refer to chattels real it can by no means be said that it is so limited and that the phrase ‘lease for life’ is an inept phrase. ‘A lease doth properly signify a demise or letting of lands, rent, common, or any hereditament unto another for a lesser time than he that doth let it have in it. For when a lessee for life or years doth grant over all his

estate or time unto another, this is more properly called an assignment than a lease’: Sheppard’s Touchstone of Common Assurances 266. The word ‘leasehold’ is probably only appropriate to a lease for years, because a lease for life is a freehold, but it does not follow that the word ‘lease’ is inappropriate to the freehold estate constituted by the grant of a life tenancy or lease for life. There was strictly never the possibility of creating a life estate by feoffment with livery of seisin. The feoffment was only appropriate to the fee simple. If a life estate was created by livery of seisin the ceremony was called a ‘lease’: Littleton, s 57. ‘And yet sometimes improperly it [page 2] is called a feoffment when an estate of freehold (that is an estate for life) only doth passe’: Coke on Littleton, 9a. The other members of the Court of Appeal (Holmes and Moffitt JJA) agreed with Jacobs JA and the decision itself was affirmed by the Privy Council ([1974] 1 NSWLR 1); see also Greco v Swinburne Ltd [1991] VR 304 at 313–16. A lease strictly means a species of conveyance; but the word ‘lease’ can describe not only the grant, but also that which is granted, namely, the term: Chelsea Investments Pty Ltd v Federal Commissioner of Taxation (1966) 115 CLR 1 at 8; [1966] ALR 929. The expression ‘tenancy agreement’ is often used nowadays to describe a lease in the former sense. A tenancy agreement in this sense must not be confused with an agreement for a lease, that is to say, a contract whereby the parties agree to give and take a lease at some future time; with this we are not presently concerned. So, putting aside the mere contract represented by an agreement to grant a lease at some time in the future, discussed in [4.1], we have the lease or tenancy agreement (the grant) and the term which is granted, called sometimes a lease and sometimes a tenancy.

A contract creating an estate

[1.2] The present analysis is not concerned with the exceptional case of a lease or tenancy created by statute. With the exception of cases where the relation of landlord and tenant is created by statute, the relation arises out of contract: Burnham v Carroll Musgrove Theatres Ltd (1928) 41 CLR 540 at 550. In considering the nature of a lease for a term of years, Lord Templeman in Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 said, at 390: A demise for years is a contract for the exclusive possession and profit of land for some determinate period. Such an estate is called a ‘term’. Thus Coke on Littleton said (Co Litt, 19th ed, 1832, para 45b): ‘Terminus’ in the understanding of the law does not only signify the limits and limitation of time, but also the estate and interest that passes for that time. Blackstone in his Commentaries (2 Bl Com, 1st ed, 1766, p 143) said: Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years. And therefore this estate is frequently called a term, terminus, because its duration or continuance is bounded, limited, and determined: for every such estate must have a certain beginning, and certain end. In Say v Smith (1530) 1 Plowd 269; 75 ER 410 a lease for a certain term purported to add a term which was uncertain; the lease was held valid only as to the certain term. Anthony Brown J is reported to have said (1 Plowd 269 at 272; 75 ER 410 at 415): Every contract sufficient to make a lease for years ought to have certainty in three limitations, viz in the commencement of the term, in the continuance of it, and in the end of it: so that all these ought to be known at the commencement of the lease, and words in a lease, which don’t make this appear, are but babble … And these three are in [page 3]

effect but one matter, shewing the certainty of the time for which the lessee shall have the land, and if any of these fail, it is not a good lease, for then there wants certainty. Originally the relation was one of contract only; it was not until the end of the fifteenth century that it could be said that the termor (the holder of the term) had an estate in land: Chelsea Investments Pty Ltd v Federal Commissioner of Taxation (1966) 115 CLR 1 at 6; [1966] ALR 929. For nearly 500 years it has been recognised that a lease is not a mere contract but creates rights in rem, that is to say, an estate or interest in the land demised: London and Northern Estates Co v Schlesinger [1916] 1 KB 20; [1914–15] All ER Rep 593; Whitehall Court v Ettlinger [1920] 1 KB 680; [1918–19] All ER Rep 229; Matthey v Curling [1922] 2 AC 180; City of London Corporation v Fell [1993] QB 589 (HL); and see Haidar v Blendale Pty Ltd [1993] 2 VR 524. In City of London Corporation v Fell the House of Lords approved the dictum of Nourse LJ in the Court of Appeal ([1993] QB 589 at 603–4): A lease of land, because it originates in a contract, gives rise to obligations enforceable between the original landlord and the original tenant in contract. But because it also gives the tenant an estate in the land, assignable, like the reversion, to others, the obligations, so far as they touch and concern the land, assume a wider influence, becoming, as it were, imprinted on the term or the reversion as the case may be, enforceable between the owners thereof for the time being as conditions of the enjoyment of their respective estates. Thus landlord and tenant stand together in one or other of two distinct legal relationships. In the first it is said that there is privity of contract between them, in the second privity of estate. To what, in ordinary legal parlance, do we refer when we speak of a ‘tenancy’? I think that we refer to a particular legal relationship between tenant and landlord under which land is held by the one of the other. A ‘tenant’, both by derivation and by usage, is someone who ‘holds’ land of another, for which purpose it is immaterial whether he does so by contract or by estate. Although he may remain contractually liable to the landlord, an original tenant who has assigned the tenancy, equally with an assignee who has himself assigned, cannot

properly be described as the tenant. He no longer holds the land. It is the assignee who now holds the land. It is he who has the tenancy. But see Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 (HL) where the House of Lords found that the grant of exclusive possession of a flat created a tenancy even though the Housing Trust was only a licensee from the freehold owner, and had no freehold estate. The comment is made in Cheshire and Burn’s Modern Law of Real Property (18th ed, 2011) at 183 (referring to Lord Hoffman’s speech at [2000] 1 AC 415) that: ‘This is not simply a decision that a lease has the characteristics of a contract, creating personal obligations between the parties; but a decision that a lease can exist that is only personal to the parties and need not create an estate in the land at all.’ This, in effect, would appear to take the ‘contractualisation’ of leases to its greatest extent, and beyond the position reached by the High Court in Shevill v Builders Licensing Board (1982) 149 CLR 620 and Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; as to which see [16.27]; and, more generally, see also [15.1]. The position reached by the House of Lords in Bruton (particularly that of Lord Hoffman) is at odds [page 4] with the relatively recent decision of Hasluck J in the Western Australian Supreme Court in City of Rockingham v PMR Quarries Pty Ltd (2001) 118 LGERA 93, though apparently made without Bruton having been cited. In this respect, Hasluck J said: [37] The doctrine of estates in land recognises that an estate in land is a legal entity separate from the land itself. Leases were originally regarded as a personal transaction which afforded to the tenant a right to sue the landlord for a breach of contract in the event of default. When the action of ejectment was developed, the dispossessed tenant obtained the right to recover the land. Thereafter, it was recognised that the lease gave its holder proprietary rights in the land, rather than simply personal rights pursuant to the contract. The concept of an estate less than freehold, or leasehold estate, became established.

[38] This has led to a clear distinction being drawn between a lease and a licence. When an owner of land provides a tenancy, a leasehold estate in the land passes to the tenant. The classic definition of a licence was propounded by Vaughan CJ in Thomas v Sorrell (1673) Vaugh 330, namely: ‘A dispensation or licence properly passeth no interest nor alters or transfers property in any thing, but only makes an action lawful, which without it had been unlawful.’ [39] Once a lease has been created, the continuing interest in the land held by the landlord is the leasehold reversion. A further consequence of the doctrine of estates, whereby legal entitlements are separated from the land itself, is that the landlord, as owner and holder of the leasehold reversion, is at liberty to sell the freehold estate during the term of the lease. Likewise, a leasehold interest, being an interest in land, is of its nature transferable. If the right granted is, of its nature, not transferable or is otherwise personal to the grantee, then this suggests that it is not a leasehold interest. [40] The notion that a lease confers upon the tenant an estate or interest in the land seems to have brought with it a recognition that a tenant is entitled to exclude all persons from the leased land, including even the landlord. Thus, in distinguishing between a lease and a licence, a crucial test has sometimes been supposed to be whether the occupier has exclusive possession of the land or not. If the occupier was let into exclusive possession, he was said to be a tenant; whereas, if he had not exclusive possession, he was only a licensee. See Taylor J in Radaich v Smith (1959) 101 CLR 209 at 218. And see Wilson v Anderson (2002) 213 CLR 401. The effect of the Australian authorities is conveniently and very concisely summarised by Master Burley in PJ Balnaves Nominees Pty Ltd v Third Szable Holdings Pty Ltd [2002] SASC 88 at [21]: ‘A right to possession which creates an interest in the land, as opposed to a contractual right to occupy, is an essential part of the lease: Radaich v Smith (1959) 101 CLR 209; The Wik Peoples v The State of Queensland and Ors (1996) 187 CLR 1 at 116 per Toohey J, at 152 per Gaudron J, at 194–5 per Gummow J and at 229 per Kirby J.’ In Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at

51–2 Deane J pointed to the difficulties the common law has had in dealing with leases: A lease for a term of years ordinarily possesses a duality of character which can give rise to conceptual difficulties. It is both an executory contract and an executed demise. [page 5] Its origins lie in contract rather than in real property in that the lessee’s remedies were originally restricted to a personal action against the lessor on his covenant to give enjoyment of the land (see Pollock and Maitland, The History of English Law Before the Time of Edward 1, 2nd ed, 1898, Cambridge University Press reprint, 1952), vol 2, pp 106–7; Holdsworth, A History of English Law, 5th ed, 1942, vol 3, pp 213–4). In time, however, it became accepted that a lessee for a term, although denied ‘seisin’ in the strict sense, had a right to ‘possession’ which was an interest in the land that he was entitled to protect against third parties; initially by a limited writ in ejectment (quare ejecit infra terminum) framed in terms which restricted it to an action against a purchaser from the lessor and subsequently by the remedies afforded under the Statute of Gloucester and by a specialised action of trespass (de ejectione firmae) which, by the end of the middle ages, gave recovery, not merely of damages, but of possession of the land (compare Lat Ten, s 324; Co Litt, 2000b; Pollock and Maitland: op cit, vol 2, pp 107ff, particularly p 110; Holdsworth: op cit, vol 3, pp 214ff; Challis’ Law of Real Property, 3rd ed (1911) pp 63ff, 80, 98ff, Appendix I). Notwithstanding this legal protection of the lessee’s interest in the land, chattels real were never incorporated into the strict system of feudal tenements. The interest of the lessee in the land was, however, accepted as analogous to a form of feudal tenure to the extent that some authorities expressed the view that the lessee was required to do fealty (see eg, Bracton, pp 27, 80; Challis, pp 63–6, Appendix I). The difficulties arise both from the manner in which leases were classified,

in terms of realty and personalty, and because of the fact the contractual obligations incurred by the parties were seen as merely incidental to the creation of the estate: Lobb v Vasey Housing Auxiliary (War Widows Guild) [1963] VR 239 at 247. Deane J, in Progressive Mailing House v Tabali, at 51–2, continued: As they developed, the contractual doctrines of frustration and termination for fundamental breach (or for repudiation) were not seen as applicable to an executed demise under which an interest or estate in land had actually passed to the tenant (see eg, Halloran v Firth (1926) 26 SR (NSW) 183 at 187 and, on appeal, (1926) 38 CLR 261 at 268, but cf at p 269; London & Northern Estates Co v Schlesinger [1916] 1 KB 20 at 24; Total Oil Great Britain Ltd v Thompson Garages (Biggin Hill) Ltd [1972] 1 QB 318; Leightons Investment Trust Ltd v Cricklewood Property and Investment Trust Ltd [1943] KB 493 and, on appeal, [1945] AC 221 at pp 233–5 and 244–5 but cf at pp 228ff and 236ff). The rationale of that approach was the perceived inappropriateness of those contractual doctrines to a leasehold estate viewed as analogous to a form of feudal tenure. However, the courts are now viewing leases from a commercial rather than an historical perspective with the result that contractual doctrine is now being applied more freely: see Shevill v Builders Licensing Board (1982) 149 CLR 620; Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675; and Wood Factory Pty Ltd v Kiritos Pty Ltd (1985) 2 NSWLR 105. The application of contractual doctrines to leases is discussed in Chapter 6. A lease creates mutual rights and obligations which can only be given any meaning if made between independent parties: see Ingram v Inland Revenue Commissioners [1997] 4 All ER 395 (CA). It followed, as was decided in that case, that a nominee [page 6] could not grant an effective lease to his principal and any such lease was a pure

fiction: see at 343–5. See also Kildrummy (Jersey) Ltd v Inland Revenue Commissioners [1990] STC 657; Rye v Rye [1962] AC 496; Grey v Ellison (1856) 1 Giff 438; 65 ER 990; and [5.14].

Exclusive possession the touchstone of a lease [1.3] Not every contract whereby one person grants to another the right to use land is a lease. Leases are to be distinguished from licences. This distinction has been much agitated in the courts in recent years, but, while the authorities have multiplied, it cannot be said that their effect has been to clarify the distinction. On the contrary, in the last 20 years the opposing currents of authority on the subject of licences have created a turbidity which makes difficult the framing of a definition of a lease. The doubt which has been created was not felt 50 years ago. We begin with the notion that the touchstone for distinguishing a lease from a licence is that the former creates an estate or an interest in land. This is in itself not very helpful, and some further test is necessary for determining whether an estate or interest in land is created. At the turn of the century a comfortable certainty existed as to the test to be applied: the test was whether exclusive possession of the land was given to the supposed lessee. In 1904 the Judicial Committee laid down the law as follows: ‘If the effect of the instrument is to give the holder an exclusive right of occupation of the land, though subject to certain reservations or to a restriction of the purposes for which it may be used, it is in law a demise of the land itself’: Glenwood Lumber Co v Phillips [1904] AC 405 at 408; [1904–7] All ER Rep 203 at 205. Five years later, similar definitions were formulated in the High Court. In Landale v Menzies (1909) 9 CLR 89 at 111, Barton J quoted the definition of a lease given by Woodfall on Landlord and Tenant, 17th ed, p 141, as ‘a contract for the exclusive possession of land or tenements for some certain number of years or other determinate period’. In the same case, Griffith CJ, at 100–1, observed that ‘a contract for the exclusive occupation of land for a determinate period, however short, constitutes a lease’. The law as stated by the Privy Council in Glenwood Lumber Co v Phillips has been described as stating ‘the crucial test’: Radio Theatres Pty Ltd v City of Coburg [1948] VLR 84 at 86. The text-writers

were not beset by doubts. The definition given by Woodfall in 1902 has already been mentioned. Edgar Foa, who in 1907 contributed the article on ‘Landlord and Tenant’ in the Encyclopaedia of the Laws of England, vol 7, p 633, wrote as follows: It is essential to a lease … that the lessee should take some estate, as distinguished from a mere licence to use the demised premises. The accepted test of this distinction is to inquire whether or not the grantee gets exclusive possession of some defined portion of land, or a house or room, for some definite period … [page 7] Similarly, Redman on Landlord and Tenant, 6th ed (1912), p 101, put the matter as follows: A lease or demise entitles the tenant to the exclusive possession, for some definite period, of the matter demised; but if a person is not to have the exclusive possession of, or sole dominion over, the matter, then his limited right to use and enjoyment is a licence, which confers no estate in the property … Redman continued at pp 102–3: If, however, instead of a mere right of user the terms of the agreement show that the grantor intends to part with an estate in the property, and to confer an exclusive right of occupation, so that the grantor has no right to come upon the premises without the consent of the occupier, a demise is created, though no words of letting are used, and though the remuneration is not spoken of as rent. It is thought that in this passage the words ‘and to confer an exclusive right to occupation’ are intended, not to impose an additional requirement, but to explain what it is that will amount to an intention to part with an estate in the property. Despite earlier English decisions, there does not appear to be any doubt that the giving of the right to exclusive possession is an essential characteristic of a

lease: see Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 at 390 (per Lord Templeman); and Ingram v Inland Revenue Commissioners [1997] 4 All ER 395 (CA); a position reaffirmed in Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 (HL); and see Swan v Uecker (2016) 50 VR 74 (Croft J). See also the review of the earlier authorities in All ER Rev pp 171–8 and 185–91, and at [1.4]. It has been said that the only necessary characteristic of any tenancy is that it should give the right to exclusive possession to the tenant for an ascertainable period, whether ‘fixed or renewable’ (see Bruton v London and Quadrant Housing Trust at 413, Lord Hoffman); reservation of rent is not essential: Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47; Francis Longmore & Co Ltd v Stedman [1948] VLR 322 at 323; and see [1.4], [1.12], [4.8] and [11.1] and following; and see, particularly, NZI Insurance Australia Ltd v Baryzcka (2003) 85 SASR 497 (FC) at 506 ([30]–[39]), discussed at [4.8] and [11.1]. See further Commonwealth v K N Harris Pty Ltd [1965] NSWR 63; Ex parte Robert John Pty Ltd; Re Fostars Shoes Pty Ltd [1963] NSWR 419; 63 SR (NSW) 260; Danita Investments Pty Ltd v Rockstrom [1963] NSWR 1275; 80 WN (NSW) 1287; Hayes v Seymour-Johns (1981) 2 BPR 9366; Lewis v Bell (1985) 1 NSWLR 731 Greco v Swinburne Ltd [1991] 1 VR 304 at 313; Wilebbed Pty Ltd v Parramatta Riverside Theatres Pty Ltd (SC(NSW), Hodgson J, 7 November 1995, unreported); Melbourne Pathology Pty Ltd v Health Insurance Commission Pty Ltd (1997) 72 FCR 513 (FCA); Caltex Properties Ltd (in liq) v Love (1997) 95 LGERA 132; BC9702078 (SC(WA), Parker J); City of Rockingham v PMR Quarries Pty Ltd (2001) 118 LGERA 93 (SC(WA)); Wilson v Anderson (2002) 213 CLR 401; and NZI Insurance Australia Ltd v Baryzcka. As the cases indicate, whether exclusive possession is granted is a matter of construction of [page 8] the instrument in question: see Bruton v London and Quadrant Housing Trust [2000] 1 AC 406, particularly the speech of Lord Hoffman at 413; and see [1.4]. The cases also indicate that the courts are concerned with substance and not mere form: see Lord Templeman, ‘Form and Substance’, Rationalizing

Property, Equity and Trusts — Essays in Honour of Edward Burn, pp 130–4 (Ch 7). It is, however, important to bear in mind that a landlord’s right to enter and inspect is not, necessarily, inconsistent with the grant of exclusive possession amounting to a lease and, further, that a right of exclusive possession does not necessarily connote a lease. Thus in Gray v Taylor [1998] 1WLR 1093b (CA) Sir John Vinelott said (at 1097): Having cited a passage in the judgment of Blackburn J in Allan v Liverpool Overseers (1874) LR 9 QB 180, 191–192, where the position of a lodger is more fully described, Lord Templeman continued [in Street v Mountford [1985] AC 809, at 817–818]: If on the other hand residential accommodation is granted for a term at a rent with exclusive possession, the landlord providing neither attendance nor services, the grant is a tenancy; any express reservation to the landlord of limited rights to enter and view the state of the premises and to repair and maintain the premises only serves to emphasise the fact that the grantee is entitled to exclusive possession and is a tenant. It is of course well settled that, if on its true construction an agreement constitutes a tenancy, the fact that it may be described as a licence is simply neither here nor there. However, it is important to bear in mind a subsequent observation which comes almost immediately after the passage I have cited, where Lord Templeman said: There can be no tenancy unless the occupier enjoys exclusive possession; but an occupier who enjoys exclusive possession is not necessarily a tenant. He may be owner in fee simple, a trespasser, a mortgagee in possession, an object of charity or a service occupier. That observation is elaborated towards the end of his speech where he said, at pp 826–7: Sometimes it may appear from the surrounding circumstances that the right to exclusive possession is referable to a legal relationship other than a tenancy. Legal relationships to which the grant of exclusive

possession might be referable and which would or might negative the grant of an estate or interest in the land include occupancy under a contract for the sale of the land, occupancy pursuant to a contract of employment or occupancy referable to the holding of an office. These observations accord with those of Taylor J in Radaich v Smith (1959) 101 CLR 209 at 219–20 that ‘… exceptional cases may arise in which it will be seen that a right to exclusive occupation or possession has been given without the grant of a leasehold interest’; which were referred to with approval by Tadgell J in KJRR Pty Ltd v Commissioner of State Revenue [1999] 2 VR 174 at 177. In this respect, see also Metha v Royal Bank of Scotland plc (1999) Times 53 (25 January 1999)(QBD). Whether the [page 9] converse may be true was considered by Hasluck J in the Western Australian Supreme Court in City of Rockingham v PMR Quarries Pty Ltd (2001) 118 LGERA 93, with reference to Wik Peoples v Queensland (1996) 187 CLR 1: [52] During the course of argument, my attention was drawn to the recent decision of the High Court in Wik …, in which various members of the High Court looked at the nature of a leasehold estate in land. This case was mentioned also by the Land Valuation Tribunal in the course of its determination with particular reference being made to the reasoning of Toohey J at 115 to 117. His Honour observed at 118 that the decided cases point to exclusive possession as a normal incident of a lease. The authorities do not exclude, however, an inquiry whether exclusive possession is in truth an incident of every arrangement which bears the title of a lease. These observations arguably left open the question of whether the test of exclusive possession should continue to be regarded as decisive. [53] In my view, the Wik case cannot be regarded as a decision overruling or casting significant doubt upon the reasoning in the earlier decisions and the adoption of exclusive possession as the decisive test in the context of commercial transactions. The issue

before the High Court in Wik was of a special kind concerning the relationship between principles of common law and native title rights. Further, and in any event, it seems that a majority of the High Court, including Toohey J, did not consider that the pastoral leases in question, being the product of specific statutory provisions, did confer exclusive possession of a kind sufficient to extinguish native title rights. Accordingly, I am not persuaded that the case can be viewed as a ruling upon the effect of exclusive possession in the context of a commercial transaction which turns upon the application of common law principles. These observations are strengthened in that they are consistent with the approach of the High Court in the subsequent case of Wilson v Anderson (2002) 213 CLR 401. The authorities have, until recent times, insisted upon, or assumed, a proprietary rather than mere personal aspect to the right to exclusive possession: see [1.2], but note the contrary position reached in Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 (HL).

Exclusive possession and licences [1.4] A doubt which was raised in the English cases was whether the grant of exclusive possession is inconsistent with the grant of a mere licence — not a lease. The distinction between a lease and a licence has loomed large in English decisions on residential occupancy arrangements. Generally, if they were characterised as tenancies then legalisation such as the Rent Act 1968 would be applicable — a result desired by ‘tenants’ but not by ‘landlords’. Consequently many of the English cases on the lease and licence distinction, though they proliferate in the higher (and highest) courts, are of little interest in Australia as they are concerned primarily with the quirks of English legislation. Nevertheless a number of these decisions are now usefully considered for their treatment of general law principles on this distinction. [page 10]

The doubt arose initially in England as a result of a series of decisions in the course of the 1950s and 1960s. In 1952 Denning LJ (as he then was) expressed the view that the test of exclusive possession was by no means decisive: Errington v Errington [1952] 1 KB 290 at 297. His Lordship said that the difference between a tenancy and a licence was that in a tenancy an interest passed in the land, whereas in a licence it did not; that in distinguishing between a lease and a licence the test of exclusive possession was by no means decisive; that the matter was one of intention and that, if it appeared that all that was intended was that the occupier should be granted a personal privilege with no interest in the land, he or she would be held to be only a licensee, notwithstanding that he or she was given exclusive possession. In Crane v Morris [1965] 1 WLR 1104 at 1107–8, Lord Denning went so far as to say: At one time it was said … that the difference between a licence and a tenancy was that, on a tenancy, the occupier had exclusive possession, but on a licence he had not exclusive possession. We have got long past those days. It is now perfectly well settled that a man may be a licensee (and no tenant) even though he has exclusive possession … Compare his Lordship’s reference to ‘old law which is now gone’ in ShellMex and BP Ltd v Manchester Garages Ltd [1971] 1 All ER 841; [1971] 1 WLR 612 at 616. In Isaac v Hotel de Paris Ltd [1960] 1 WLR 239, the Judicial Committee held that the intention of the parties was the paramount consideration and that, while the fact of exclusive possession was of great importance, if it appeared that all that was intended was that the supposed lessee should have a personal privilege with no interest in the land, he would be a mere licensee. Thus there appears to be the authority of the Judicial Committee for the proposition that the grant of exclusive possession is not inconsistent with the creation of a mere licence. Some three months before the decision of the Judicial Committee was given, the High Court gave judgment in Radaich v Smith (1959) 101 CLR 209. The court was there concerned with the question whether an agreement relating to the use of refreshment rooms was a lease or a licence. Unfortunately, not all members of the court dealt with the question whether the grant of the right to exclusive possession was inconsistent with the creation

of a mere licence. McTiernan J, at 214, said that the true test of a supposed lease was whether exclusive possession was conferred upon the putative lessee and that the ‘exclusive possession’ test had survived intact despite the criticism it received in Errington v Errington. Taylor J, at 217, held that the effect of the instrument under consideration was to grant a right to exclusive possession and that in consequence it was ‘inevitable’ that the instrument should be held to create a leasehold interest. His Honour continued: It will be seen that I have treated the question in this case as concluded by the fact that the instrument conferred upon the appellant the right to exclusive possession for the specified term. And it seems to me that where, as in cases such as the present, it [page 11] becomes necessary to identify a particular transaction as either a lease or a licence this factor must be decisive. The instrument either makes a grant of an interest in the land or it does not; if it does, a leasehold interest is created and if it does not then nothing more than a licence is given. I do not, of course, overlook that an interest in land for example, an easement or a profit á prendre may be created without a grant of possession. Nor do I wish to assert that whenever a legal owner admits another to possession of his land a leasehold interest is necessarily created. For instance, possession given to a builder under the terms of a building contract does not create such an interest. What I have in mind is that where there is a grant of a right for a determinate period in respect of land and the question is posed whether the grant creates a lease or a licence the question may be resolved by considering whether the right in question is a right to exclusive possession. Menzies J, at 220, regarded the conferring of the right of exclusive possession as decisive. Windeyer J, at 222, put the matter as follows: Whether the transaction creates a lease or a licence depends upon intention, only in the sense that it depends upon the nature of the

right which the parties intend the person entering upon the land shall have in relation to the land. When they have put their transaction in writing this intention is to be ascertained by seeing what, in accordance with ordinary principles of interpretation, are the rights that the instrument creates. If those rights be the rights of a tenant, it does not avail either party to say that a tenancy was not intended. What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land for a term or from year to year or for a life or lives. If he was, he is a tenant. And he cannot be other than a tenant, because a legal right to exclusive possession is a tenancy and the creation of such a right is a demise. To say that a man who has, by agreement with a landlord, a right of exclusive possession of land for a term is not a tenant is simply to contradict the first proposition by the second. His Honour went on to refer to recent decisions holding that only licences had been created, saying: These decisions are largely a by-product of rent restriction statutes and other legislation here and in England. They are all explicable if they mean, as I think they all do, that persons who are allowed to enjoy sole occupation in fact are not necessarily to be taken to have been given a right of exclusive possession in law. If there be any decision which goes further and states positively that a person legally entitled to exclusive possession for a term is a licensee and not a tenant, it should be disregarded, for it is self-contradictory and meaningless. Unfortunately, Dixon CJ contented himself with observing that he had nothing to add to the reasons given by the other members of the court. Windeyer J had further occasion to consider the nature of a lease in Chelsea Investments Pty Ltd v Federal Commissioner of Taxation (1966) 115 CLR 1; [1966] ALR 929. His Honour was there concerned with the ‘statutory tenancy’ of a tenant of prescribed

[page 12] premises after the expiration of a notice to quit. Referring to the statutory tenant, Windeyer J said at (CLR) 6–7: What rights did the law actually give to Virgona? That rather than their description, is the essential question. It gave him a right to continue in occupation subject to his performing in favour of his landlord the taxpayer what had formerly been his contractual obligations under the lease, to pay rent and so forth. Until he should be ordered by a competent court to give up possession, he had a right to exclusive possession as against all others including his landlord. Such a right, when it flows from contract with the landlord, is the very essence of tenancy. It creates an interest in land: Radaich v Smith (1959) 101 CLR 209. It seems to me that this same right when it flows from statute rather than from contract is an interest in relation to the land, if not, in a technical sense, an estate in the land. In Lapham v Orange City Council (No 2) [1968] 2 NSWR 667 it was held by the Court of Appeal, following Radaich v Smith (1959) 101 CLR 209, that to determine whether a tenancy was created the test was whether there was conferred the right to exclusive possession of the property. Support for the view that exclusive possession is the touchstone of a lease is also to be found in the remarks of Williams J in Clarke v Tyler (1949) 78 CLR 646 at 658, and in the observations of the same judge in Minister of State for the Army v Dalziel (1944) 68 CLR 261. In the latter case his Honour said, at 305: The principal purpose of the lessee in entering into a lease is to obtain the exclusive possession of the demised property so that he may use and enjoy it for those purposes for which the property is suited and which are not forbidden by the lease. This exclusive possession is, therefore, of the very essence of the proprietary interest conferred upon a lessee by a lessor. In Claude Neon Ltd v Melbourne and Metropolitan Board of Works (1969) 43 ALJR 69, the High Court had to consider whether it was possible to create a leasehold interest over the external surface of a building for the purpose of

advertising signs. Kitto J said, at 71, referring to Radaich v Smith, that: ‘… the inquiry must be whether the substance and effect of the documents in question was to grant the appellants a right of exclusive possession of any part of the Corner Hotel Building.’ The other members of the court determined the question on this basis without actually referring to Radaich v Smith. Kitto and Windeyer JJ were of the opinion that the documents were instruments of licence in the guise of leases. The majority found they were leases. In Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199; 3 ATR 546, Mason J considered, by way of obiter, whether there was any conflict between Radaich v Smith and the advice in Isaac v Hotel de Paris Ltd [1960] 1 WLR 239. His Honour, at CLR 212, concluded that the question whether the grant is to be described as a lease rather than as a licence is to be answered initially: … by reference to the test: Does it confer on the appellant a right of exclusive possession? (See Radaich v Smith (1959) 101 CLR 209.) The decision of Mason J was followed in [page 13] Dampier Mining Co Ltd v Federal Commissioner of Taxation (1981) 35 ALR 335, see 348–9, 356. The decision of the Judicial Committee in Isaac v Hotel de Paris Ltd is not, in my opinion, inconsistent with Radaich v Smith. The advice of the Judicial Committee was also considered by the House of Lords in Street v Mountford [1985] AC 809 at 823. In ICI Alkali (Aust) Pty Ltd (in vol liq) v Federal Commissioner of Taxation [1977] VR 393, McInerney J dealt with the question of whether a document which purported to be a lease from the governor of the state of South Australia created a leasehold estate having regard to the various limitations placed upon the grantee in relation to the use of the land by the terms of the document and by legislative provisions. In considering this question, his Honour applied the test laid down by Windeyer J in Radaich v Smith, namely, was the grantee given a legal right to exclusive possession of the land for the relevant term. He was inclined to the view that

in all the circumstances of the case, the grantee acquired a lease and not a licence of the land in question. More recently, in Lewis v Bell (1985) 1 NSWLR 731, the New South Wales Court of Appeal reviewed the authorities. In that appeal the court considered a document styled ‘This Licence Agreement’ which granted rights in respect of a number of horseboxes and certain other facilities. In a judgment adopted by the other members of the court Mahoney JA applied the test in Radaich v Smith (1959) 101 CLR 209, and the approach adopted by the High Court to determine whether the grantee had been given the right of exclusive possession, that ‘the court must initially go to the terms of the grant’ (quoting Windeyer J at 223: see (1985) 1 NSWLR at 735). In most cases the position will then be clear but there will be circumstances where it is not clear what is being granted, even from the terms of the grant ‘construed in light of the whole agreement and its context’ (Mahoney JA at 735). His Honour continued at 735: In deciding, in such cases, whether what has been granted is the right to exclusive possession, the court, in the process of construction, has in practice looked, inter alia, to two things: the nature of the rights which, in terms, have been granted; and the intention of the parties. The nature of the rights granted is significant as an inference can be drawn that the grantee was, or was not, granted exclusive possession. The inference has, said Mahoney JA at 735, been put on this basis, at least: First, it has been held proper to infer that the rights granted do not carry by implication the grant of exclusive possession because the rights granted are inconsistent with the right to exclusive possession. Thus a leasehold interest is an interest in land and, as such, is of its nature transferable: Richardson v Landecker (1950) 50 SR (NSW) 250 at 255; 67 WN 149 at 151. If the right granted is, of its nature, not transferable or is otherwise personal to the grantee it will, as such, not be a leasehold interest: cf Abbeyfield (Harpenden) Society Ltd v Woods [1968] 1 WLR 374 at 376; [1968] 1 All ER 352 (n) at 353. In principle, where the rights are of their nature inconsistent with there being a lease, there will be no implication of a grant of exclusive possession. Second, it has been

[page 14] held necessary to infer the grant of exclusive possession because the rights which have in terms been granted can be enjoyed only by one who has been granted exclusive possession. The grant of exclusive possession has been inferred from the nature of what has been expressly granted. This was the basis of the decision of their Honours in Radaich v Smith (see at 215, 217, 221, 223–5). And see Hamilton Island Enterprises Ltd v Croycom Pty Ltd [1998] ANZ ConvR 615; Q ConvR ¶54-509 (SC(Qld), Thomas J). Land Reclamation Co Ltd v Basildon District Council [1979] 1 WLR 767 provides an example of an incorporeal right, an easement of way, not capable of being occupied in the ordinary sense. His Honour continued by saying that the usual principles apply to the implication of a grant of exclusive possession as apply generally, namely that ‘it is necessary in order to give business efficacy to the rights which otherwise have been granted’. Reference was made to Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337. No implication should be made, said Mahoney JA, if the parties had directed their attention to the matter or expressly provided that no implication was to be made. However, his Honour was apparently not meaning to suggest that it is open to the parties to ‘declare’ an agreement to be of a type at variance with the position at common law. Presumably Lord Templeman’s speech in the House of Lords in Street v Mountford [1985] AC 809 at 819, which was almost contemporaneous, was not available to Mahoney JA or he may have cited his Lordship’s colourful analogy: ‘The manufacture of a five pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade.’ Instead, he relied upon the statement of Windeyer J in Radaich v Smith at 222, that the parties cannot ‘escape the legal consequences of one relationship by professing that it is another’. Nevertheless, this does not mean that the intention is irrelevant but, as Mahoney JA makes clear at 736 and 737, it is potentially applicable in two stages in the court’s reasoning. The first stage, aspects of which have already been considered, involves construing the document according to the ordinary

rules of interpretation and construction. Intention thus gathered may lead the court to read down words that may, out of context, be construed as granting exclusive possession. Any express statement of intention by the parties, particularly as to the nature of the relationship to be created, ‘will be of substantial, though not necessarily conclusive importance: it will, in accordance with the rules of construction, yield to the intention to be derived from the document as a whole’. Similarly, intention is relevant to another aspect of construction, the implication of terms on the basis of business efficacy. As has already been indicated, this may include the implication of a grant of exclusive possession: but, in this respect, see the comments of Tadgell JA in KJRR Pty Ltd v Commissioner of State Revenue [1999] 2 VR 174 at 186, where his Honour questions ‘whether the decision in Radaich v Smith is properly to be understood as depending ultimately on principles governing the implication of terms’. [page 15] At the time Mahoney JA delivered his judgment, the English and Australian courts appeared to agree on the functions of intention in this first stage but not in the second, the classification stage. It was in this stage that the significance of intention was less in the view of the Australian courts. His Honour said at 737: ‘Once the nature of the rights granted is finally determined, the classification of the transaction, as lease or licence, will depend upon whether the rights are or are not those of exclusive possession.’ In other words, no amount of labelling will turn a fork into a spade. As Lord Templeman’s statement implies, the House of Lords has, in more recent times, had occasion to reconsider the English position. His Lordship, in his speech in the House of Lords in Street v Mountford [1985] AC 809, reviewed the English authorities and came to the same view on the proper role of the intention of the parties as has been taken by the Australian courts. He said, at 826–7: My Lords, the only intention which is relevant is the intention demonstrated by the agreement to grant exclusive possession for a term at a rent. Sometimes it may be difficult to discover whether, on the true construction of an agreement, exclusive possession is conferred.

Sometimes it may appear from the surrounding circumstances that there was no intention to create legal relationships. Sometimes it may appear from the surrounding circumstances that the right to exclusive possession is referable to a legal relationship other than a tenancy. Legal relationships to which the grant of exclusive possession might be referable and which would or might negative the grant of an estate or interest in the land include occupancy under a contract for the sale of the land, occupancy pursuant to a contract of employment or occupancy referable to the holding of an office. But where as in the present case the only circumstances are that residential accommodation is offered and accepted with exclusive possession for a term at a rent, the result is a tenancy. His Lordship followed by saying that ‘the position was well summarised by Windeyer J sitting in the High Court of Australia in Radaich v Smith (1959) 101 CLR 209 at 222’ (the substance of which is contained in the first quote from Windeyer J, above) and concluding with the remark that ‘I gratefully adopt the logic and the language of Windeyer J’. It remains to be seen whether the English Rent Acts will lead to the maintenance of a divergence of approach in particular cases (and in relation to the effect of the Rent Acts in this context, see the comments of Tadgell J in KJRR Pty Ltd v Commissioner of State Revenue [1999] 2 VR 174 at 180). This position was reaffirmed in Bruton v London and Quadrant Housing Trust [2000] 1 AC 406. Thus Lord Hoffman said in that case (at 413): The fact that the parties use language more appropriate to a different kind of agreement, such as a licence, is irrelevant if upon its true construction it has the identifying characteristics of a lease. The meaning of the agreement, for example, as to the extent of the possession which it grants, depend [sic] upon the intention of the parties, objectively ascertained by reference to the language and relevant background. The decision of your Lordships’ House in Westminster City Council v Clarke [1992] 2 AC 288 is a good example of the importance of background in deciding whether the agreement grants exclusive possession or not.

[page 16] There are a number of useful examples of the application of the approach now reaffirmed by the appeal courts: see Hayes v Seymour-Johns (1981) 2 BPR 9366; Streatfield v Winchcombe Carson Trustee Co (Canberra) Ltd [1981] 1 NSWLR 519 at 526–629; Australian Aggregates (NSW) Pty Ltd v Maxmin Pty Ltd (SC(NSW), Hodgson J, 16 May 1988, unreported); AG Securities v Vaughan [1990] 1 AC 417 (HL); and see Bretherton v Paton [1986] 1 EGLR 172; Ogwr Borough Council v Dykes [1989] 1 WLR 295 (CA); and Family Housing Association v Jones [1990] 1 WLR 779 (CA) (overruled by the House of Lords in Westminster City Council v Clarke [1992] 2 AC 288 but only in respect of particular legislation); and see All ER Rev 1989 pp 184–9; All ER Rev 1990 p 172; but compare Colchester Borough Council v Smith [1991] Ch 448 at 483–5; and see KJRR Pty Ltd v Commissioner of State Revenue [1999] 2 VR 174 (CA); and Wilebbed Pty Ltd v Parramatta Riverside Theatres Pty Ltd (SC(NSW), Hodgson J, 7 November 1995, unreported). The House of Lords again reaffirmed the decision in Street v Mountford in Westminster City Council v Clarke (and see Uratemp Ventures Ltd v Collins [2002] 1 AC 301 (HL)). In the absence of a written agreement the same principles apply, but the court must draw its own conclusions ‘as to whether there was or was not a right of exclusive possession from the circumstances and facts of the case in order to see whether the proper inference is that such a term was included by means of, and derived from a history of, such a right being recognised’: Smith v Northside Developments Ltd [1987] 2 EGLR 151 at 152 (CA); and see Ex parte Robert John Pty Ltd; Re Fostars Shoes Pty Ltd [1963] NSWR 419; 63 SR (NSW) 260, considered in Australian Aggregates (NSW) Pty Ltd v Maxmin Pty Ltd at p 46 of his Honour’s judgment. The process of construction adopted by the courts for determining whether exclusive possession has been granted is helpfully discussed by Young J in National Outdoor Advertising Pty Ltd v Wavon Pty Ltd (1988) 4 BPR 97,322. The facts of this case were not dissimilar to Claude Neon Ltd v Melbourne and Metropolitan Board of Works in that they raised the question whether an agreement for the placing of signs on the external wall of an hotel bottle shop was an agreement for lease. Young J said, at pp 9733–4:

It is quite plain from the decision of the High Court of Australia in Claude Neon Ltd v Melbourne & Metropolitan Board of Works (1969) 43 ALJR 69, that it is possible to create a leasehold interest in favour of an advertising company over portions of the external surface of a building for the purpose of advertising signs. The question in the instant case is whether, at least in equity, such an interest was created. When looking to this question one must see whether exclusive possession as a legal concept has been granted to the person who claims to be lessee. In dealing with this question one does not merely look to see whether the magic words ‘exclusive possession’ have been used in the document. But one looks at the whole of the document and, at least, if the document is ambiguous, one looks to the surrounding circumstances as well. I discussed the authorities which led to this result in Chaka Holdings Pty Ltd v Sunsim Pty Ltd (1987) NSW ConvR ¶55-367 at 57,295–57,306, and it is unnecessary [page 17] to repeat that analysis here. Indeed, it is clear from such cases as Radaich v Smith (1959) 101 CLR 209; [1959] ALR 1253 that members of the High Court did look at the surrounding circumstances, such as the fact that a milk bar business could only be carried on in reasonable convenience by persons having exclusive possession, when considering whether or not there was a lease or licence created by the document before them in that case. Again, for the reasons I considered in the Chaka case, above, where it is not a sham, one gives significance to the title or label that the parties have given to the document, as well as the words which they have used. In the instant case there are some words which are indicative of lease, for instance, the word ‘covenant’, the words ‘exclusive possession and quiet enjoyment’ in cl 12, and the phraseology of cll 1 and 2 themselves. Considerations that go the other way are the use of the word

‘agreement’ rather than the word ‘lease’, the absence of any words such as ‘grant’, the imprecision of all the consideration for the rights contained in the agreement and the premises over which those rights are granted, the imprecision of the word ‘owner’ and, indeed, the fact that the person who appears as owner was not the owner, but that the people in a commercial relationship obviously thought it was good enough to have a director sign rather than go through the formalities of searching titles, etc. Furthermore, the term ‘consideration’ is used, rather than the term ‘rent’. The term ‘agreement’ is employed rather than the term ‘lease’ so that of the indications one way or the other there are perhaps more indications in the document itself that it is not to be a lease conferring proprietary rights than the other way round. When one focuses on the rights that are granted one meets such great imprecision as seems to me that it is unlikely that the document is a lease. I have already dealt with the problems as to the parties to the document. So far as the demised premises are concerned, the document grants rights over ‘the area’. The evidence does not show whether the west wall is 10 ft by 5 ft or the south wall 20 ft by 10 ft. If that was not the dimensions of the wall then the area demised would only be part of the wall. I do not think this is fatal, however, because it seems to me that if there is the agreement to grant a lease over part of a wall, and before the suit for specific performance is brought that part of the wall is defined by agreement between the parties, then the court is able to grant specific performance and order the proprietor to grant a lease over the area that has then been defined: compare Talga Investments Pty Ltd v Tweed Canal Estates Pty Ltd (1974) 1 BPR 9675. However, the fact that the area is left imprecise tells against a lease. Again, there is a problem as to whether it is the surface of the exterior area which is given over to the plaintiff or whether it is the whole of the wall. This problem was adverted to by A H Simpson CJ in Eq in Brooks-Thornley v McMurtrie (1904) 21 WN (NSW) 127, particularly at 128–9. His Honour said that if the document was a lease it was difficult to say what the demised premises were and that assisted him to come to the view that the document in that case, which was the right to use a wall for display of a photographer’s showcase, was a

mere licence. The problem is also adverted to by the dissenting judgment of Kitto J in the Claude Neon case itself. The answer given to this submission is that it is quite possible to give a lease of the surface of the wall and grant ancillary contractual rights to insert bolts, etc, into the property of the hotel. Of course, it is quite possible to do it, but the question is whether cl 2(a) on its proper construction operates to give the same rights to the surface and the inner part of the wall or whether it purports to grant a lease of the surface and [page 18] mere contractual rights to the other parts of the wall. It seems to me that the better construction is that only one right is given and this is reinforced by the word ‘including’ in cl 2(a). This sits better as a licence than a lease. Parker J in Caltex Properties Ltd (in liq) v Love (1997) 95 LGERA 132; BC9702078 (SC(WA)) also emphasised that the critical factor is the legal right to exclusive possession rather than the fact of exclusive possession, but noting that in some cases the fact of exclusive possession may be indicative of a legal right to exclusive possession: see BC9702078 at 17–18. Although, as indicated above, the label the parties have given the particular instrument may be relevant to the construction process, it is well settled that courts will not regard themselves as otherwise bound by a label: see KJRR Pty Ltd v Commissioner of State Revenue [1999] 2 VR 174 (CA), particularly at 176 (Tadgell JA), referring to Wik Peoples v Queensland (1996) 187 CLR 1 at 152 and the cases there cited; and see [1.3]. And, in this respect, see Hydra Pty Ltd v Holmes & Holmes [2002] SASC 14 (FC) where it was held that an instrument in the form of a lease, which was found not to grant exclusive possession, did not confer more than rights in the nature of a licence, perhaps coupled with an interest, to lay and keep pipes in the ‘leased’ area; and which could not take effect as an easement in the absence of a dominant tenement: see Besanko J at [79] and [80], with whom Doyle CJ and Martin J agreed.

See also Australian Posters Pty Ltd v Wyuna Holdings Pty Ltd (1993) 15 Qld Lawyer Reps 22 (Dist Crt, Qld). As to rights with respect to common areas of shopping centres, see Arndale (Kilkenny) Pty Ltd v Gaetjens (1970) 44 ALJR 434 and Ergopax Pty Ltd v Meerkin and Appel (SC(Vic), Hedigan J, 12 December 1995, unreported) at 77–9; and in Hunts Refuse Disposals Ltd v Norfolk Environmental Waste Services Ltd [1997] 1 EGLR 16 (CA) a 21-year exclusive licence for the depositing of waste was held to be a licence rather than a lease because the grant’s only exclusive quality was that the grantor could not grant a competing right for the same site. Finally it should be noted, as indicated by Young J (above), by Lord Templeman in Street v Mountford ([1985] AC 809 at 826–7 (set out above)) and by the High Court in Radaich v Smith, that surrounding circumstances may be relevant in considering whether a particular document creates a lease or a licence. However, it would appear that this is merely a particular application of the general rules for the admission of extrinsic evidence (see Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337) rather than any exception to those rules; a position confirmed in Swan v Uecker (2016) 50 VR 74 (Croft J). Also, regard should be had to the general principle that courts should attempt to uphold agreements where possible: see Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429; Deneys v Delafotis (1992) V ConvR ¶54-433 and Rialta Pty Ltd v Handbags International Pty Ltd (1993) V ConvR ¶58-469. See also [6.3] as to construction of leases, more generally. The cases also indicate that the courts are concerned with substance and [page 19] not mere form: and see Lord Templeman, ‘Form and Substance’, Rationalizing Property, Equity and Trusts — Essays in Honour of Edward Burn, pp 130–4 (Ch 7). The nature of a licence is considered in [3.1]; see also [3.2] and [3.3] for a further discussion of the distinction between a lease and a licence.

Agreement and certainty [1.5] As in the case of other binding agreements, the basic terms of a lease must be agreed upon before the lease is capable of being enforced by any party to it. Thus a lease will not be enforceable unless at least the essential terms of such a lease have been agreed upon: see Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 90 ALJR 770, particularly at 780, [31] (French CJ and Kiefel and Bell JJ), referring to Thorby v Goldberg (1964) 112 CLR 597 at 607; Beattie v Fine [1925] VLR 363, referred to in Placer Development Ltd v Commonwealth (1969) 121 CLR 353 at 360. For example, the duration of the term, its date of commencement, the parties to it, and the subject matter of the demise must be agreed upon and must be capable of being ascertained with certainty. (In the case of a demise by deed, consideration consists of the seal.) If the grant of the term is effected by means other than a deed, then consideration must be provided by the lessee; this is usually done in the form of a reservation of rent (see [1.3], [4.8] and Chapter 11). Subject to agreement between the parties and usual conveyancing practice, creation of a written lease requires an exchange of documents executed by the lessor and the lessee: see Gobblers Inc Pty Ltd v Stevens (1993) 6 BPR 97,488; Budmore Pty Ltd v Johnson (1993) 6 BPR 97,486 at 13,576 (per Young J); and see Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 436 (per Deane J) for a summary of the usual New South Wales conveyancing practice in this respect. In Gobblers Inc it was held that execution of the lease by the lessor after the lessee had abandoned the leased premises was too late to create the intended lease, so no lease came into existence: see at 6 BPR 13,594 (per Cohen J). Where a lease or agreement for lease is agreed subject to certain preconditions, no lease or enforceable agreement for lease exists until they have been met: Budmore Pty Ltd v Johnson; and, similarly, where ministerial consent or compliance with other statutory formalities is required, see Graham v Moree Local Aboriginal Land Council [2004] NSWSC 1178; BC200408599; and see [4.1]. Generally, as to consents in conveyancing transactions, see Lewison, The Interpretation of Contracts (6th ed, 2015), para 14.10. An exchange may be prevented subject to further instruction or the happening of some future event by the holding of the documents in ‘escrow’ by, for example, a party’s own solicitor: see Budmore at

6 BPR 13,576, referring to Hooker Industrial Developments Pty Ltd v Trustees of the Christian Brothers [1977] 2 NSWLR 109 at 119 and Vincent v Premo Enterprises (Voucher Sales) Ltd [1969] 2 QB 609 at 620. As to the requirement of writing for the creation of leases, see [1.6] and [4.3] as to agreements for lease. [page 20] The date of the commencement of the term must be specified or be capable of being ascertained. Where no date is fixed for the commencement of the tenancy, it is usually taken to commence at the date of the document or act constituting the demise: see Woodfall’s Law of Landlord and Tenant, looseleaf, para 5.067, referring to Meskin v Hickford (1624) J Bridg 16; 123 ER 1167, and noting that this position may be negatived by internal evidence. If a deed of lease is delivered in escrow the date to be inserted is the date of delivery and rent expressed to run ‘from the date hereof’ will run accordingly: Alan Estates Ltd v W G Stores Ltd [1982] Ch 511. A lease may specify a commencement date prior to the date of its execution: Bradshaw v Pawley [1980] 1 WLR 10. The extent to which the obligations of the parties are effected from the earlier date until the date of execution depends on the terms of the lease; in some cases the earlier date may only be a reference point for fixing the expiry date; in others, obligations may be imposed. Megarry V-C said, in that case ([1980] 1 WLR at 15): I cannot see what there is to stultify an agreement in a lease to make payments in respect of past periods, or to require the court to construe a lease so as to prevent any agreement from relating to past periods unless compelled to it. It is by no means unknown for a lease not to be executed until after the prospective lessee has entered (usually with safeguards for the lessor), and for the lessee then to pay rent and observe the terms of the lease as from a date prior to the execution of the lease. If as a matter of construction the obligation is to pay rent at a specified rate from some date earlier than that of the execution of the lease, why should that not be enforceable? I think that some support for this view is provided by a dictum of Pollock CB in Shaw v Kay.

The report in the Exchequer Reports [(1847) 1 Exch 412] that was cited to me omits this, but it is to be found in the report of the case in the Law Journal Reports, Exchequer [17 LJ Ex 17 at 18]. Pollock CB said: A party may covenant to indemnify another from what has passed. I may demise premises to-day, and covenant to save my tenant harmless from what has happened six months before. On the same footing I do not see why, by suitable wording, a lease should not impose on one of the parties some liability for things past. Stamp duty considerations may limit the usefulness of this flexibility. It is sufficient if the commencement becomes certain by the time when the lease is to take effect in possession, and accordingly the term may be made to commence upon the happening of an uncertain event: Bishop of Bath’s case (1605) 6 Co Rep 34b; 77 ER 303; Clowes v Hughes (1870) LR 5 Exch 160; Terry v Tindale (1882) 3 LR NSW 444; Brilliant v Michaels [1945] 1 All ER 121 at 127–8; see also [2.2]. The period of the lease term must be fixed with certainty (and see [2.2]). As confirmed by the House of Lords in Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 this follows from the nature of a demise for years. Lord Templeman, with whom the other members of the House of Lords agreed, considered the ‘ancient authority’ in this respect (at 390, referred to at [1.2]) and the Law of Property Act 1925. Having done so his Lordship continued, at 391: [page 21] Ancient authority, recognised by the 1925 Act, was applied in Lace v Chandler [1944] 1 All ER 305; [1944] KB 368. A dwelling house was let at the rent of 16s 5d per week. Lord Greene MR (no less) said ([1944] 1 All ER 305 at 306; [1944] KB 368 at 370–1): Apart from one circumstance, there could be no question that this was an ordinary weekly tenancy, duly determinable at a

week’s notice. But the parties in the rent-book agreed to a term which appears there expressed by the words ‘furnished for duration’ — which must mean the duration of the war. The question immediately arises whether a tenancy for the duration of the war creates a good leasehold interest. In my opinion, it does not. A term created by a leasehold tenancy agreement must be a term which is either expressed with certainty and specifically, or is expressed by reference to something which can, at the time when the lease takes effect, be looked to as a certain ascertainment of what the term is meant to be. In the present case, when this tenancy agreement took effect, the term was completely uncertain. It was impossible to say how long the tenancy would endure. Counsel for the tenant in his argument has maintained that such a lease would be a good lease; and that, even if the term is uncertain at the beginning of the term, when the lease takes effect, the fact that at some future time it will be made certain is sufficient to make it a good lease. In my opinion, that argument is not to be sustained. I do not propose to go into the authorities on the matter; but in Foa on Landlord and Tenant, 6th ed, 1924, p 115, the law is stated in this way and, in my opinion, correctly stated: ‘The habendum in a lease must point out the period during which the enjoyment of the premises is to be had; so that the duration, as well as the commencement of the term, must be stated. The certainty of a lease as to its continuance must be ascertainable either by the express limitation of the parties at the time the lease is made, or by reference to some collateral act which may, with equal certainty, measure the continuance of it, otherwise it is void …’ Lord Templeman reviewed a number of other authorities and concluded (at 394–5): My Lords, I consider that the principle in Lace v Chandler [1944] 1 All ER 305; [1944] KB 368 reaffirming 500 years of judicial acceptance of the requirement that a term must be certain applies to all leases and tenancy agreements. A tenancy from year to year is saved from being

uncertain because each party has power by notice to determine at the end of any year. The term continues until determined as if both parties made a new agreement at the end of each year for a new term for the ensuing year. A power for nobody to determine or for one party only to be able to determine is inconsistent with the concept of a term from year to year: see Doe d Warner v Browne (1807) 8 East 165; 103 ER 305 and Cheshire Lines Committee v Lewis & Co (1880) 50 LJQB 121. In Charles Clay & Sons Ltd v British Railways Board [1971] 1 All ER 1007; [1971] Ch 725 there was no ‘clearly expressed bargain’ that the term should continue until the crack of doom if the demised land was not required for the landlord’s undertaking or if the undertaking ceased to exist. In the present case there was no ‘clearly expressed bargain’ that the tenant shall be entitled to enjoy his ‘temporary structures’ in perpetuity if Walworth Road is never widened. In any event principle and precedent dictate that it is beyond the power of the landlord and the tenant to create a term which is uncertain. A lease can be made for five years subject to the tenant’s right to determine if the war ends before the expiry of five years. A lease can be made from year to year subject to a fetter on the right of the landlord to determine the lease before the expiry of five [page 22] years unless the war ends. Both leases are valid because they create a determinable certain term of five years. A lease might purport to be made for the duration of the war subject to the tenant’s right to determine before the end of the war. A lease might be made from year to year subject to a fetter on the right of the landlord to determine the lease before the war ends. Both leases would be invalid because each purported to create an uncertain term. A term must either be certain or uncertain. It cannot be partly certain because the tenant can determine it at any time and partly uncertain because the landlord cannot determine it for an uncertain period. If the landlord does not

grant and the tenant does not take a certain term the grant does not create a lease. The decision of the Court of Appeal in Charles Clay & Sons Ltd v British Railways Board [1971] 1 All ER 1007; [1971] Ch 725 was taken a little further in Ashburn Anstalt v Arnold [1989] Ch 1. That case, if it was correct, would make it unnecessary for a lease to be of a certain duration. In an agreement for the sale of land the vendor reserved the right to remain at the property after completion as licensee and to trade therefrom without payment of rent: … save that it can be required by Matlodge Ltd [the purchaser] to give possession on not less than one quarter’s notice in writing upon Matlodge certifying that it is ready at the expiration of such notice forthwith to proceed with the development of the property and the neighbouring property involving inter alia the demolition of the property. The Court of Appeal held that this reservation created a tenancy. The tenancy was not from year to year but for a term which would continue until Matlodge Ltd certified that it was ready to proceed with the development of the property. The Court of Appeal held that the term was not uncertain because the vendor could either give a quarter’s notice or vacate the property without giving notice. But of course the same could be said of the situation in Lace v Chandler [1944] 1 All ER 305; [1944] KB 368. The cumulative result of the two Court of Appeal authorities, Charles Clay & Sons Ltd v British Railways Board [1971] 1 All ER 1007; [1971] Ch 725 and the Ashburn case, would therefore destroy the need for any term to be certain. In the present case the Court of Appeal was bound by the decisions in Charles Clay & Sons Ltd v British Railways Board and the Ashburn case. In my opinion both those cases were wrongly decided. A grant for an uncertain term does not create a lease. A grant for an uncertain term which takes the form of a yearly tenancy which cannot be determined by the landlord does not create a lease. See also Street v Mountford [1985] AC 809 (HL) at 818–19. The Prudential Assurance case and the authorities reviewed (including those

said to be wrongly decided) are considered in Sparkes, ‘Certainty of Leasehold Terms’ (1993) 109 LQR 93; and see All ER Rev pp 171–8 and 185–91. There are a number of particular examples of the application of this principle. A tenancy to continue during the time the tenant, a school-master, was stationed in a particular town: Morison v Edmiston [1907] VLR 191, and a lease to endure for the duration of the war: Anthony v Stanton [1943] VLR 179; Lace v Chandler [1944] 1 All ER 305; [1944] KB 368, have been held to be bad for uncertainty, and these are but [page 23] illustrations of the general rule that the term must be definite: Binions v Evans [1972] Ch 359 at 366; see also Cheshire Lines Committee v Lewis & Co (1880) 50 LJQB 121. By a lease dated 1 August 1945 the plaintiff leased premises to the defendant for a term of three years ‘computed from’ 1 July 1945, at an annual rent payable by quarterly instalments, the first payment to be made on 1 July 1945, and payments thereafter to be made on the first days of October, January, April and July in each year. It was held that the date of expiry of the lease was 30 June 1948: Box v Lock (1948) 65 WN (NSW) 291. The expression ‘for the term of 12 months from’ was considered in Forster v Jododex Pty Ltd (1972) 127 CLR 421; [1972–73] ALR 1303; see also [2.2]. See also EWP Ltd v Moore [1992] QB 460 at 468–9. It appears that there is no difficulty, in the absence of statutory provisions affecting the position, in granting a lease for life: see Borambil Pty Ltd v O’Carroll [1972] 2 NSWLR 302 (CA) (especially at 306–7, per Jacobs JA) and [1974] 1 NSWLR 1 (on appeal to the Privy Council). The Privy Council affirmed the Court of Appeal decision that a lease for life of land under the Real Property Act 1900 (NSW) was a lease within the Landlord and Tenant Amendment Act 1948. In Greco v Swinburne Ltd [1991] 1 VR 304 Gobbo J, saying that he was reinforced in his view by the discussions in these decisions, upheld an agreement for lease for the lifetime of the survivor of joint tenants. The grant of a lease for life or lives became impossible in England on the enactment of s 149(6) of the Law of Property Act 1925 which provides that any such grant has effect merely as a contract for a lease for 90 years

terminable by notice. These decisions appear to be consistent with Prudential Assurance Co Ltd v London Residuary Body (see, particularly, [1992] 2 AC 386 at 392–3). Any divergence from English law apparently flows from differences between the Law of Property Act and equivalent legislation rather than the common law. As to the position with respect to periodic tenancies, see [2.8] and [2.13]. In this respect see also EWP Ltd v Moore [1992] QB 460 at 468–70. The premises, the subject of the demise, and its boundaries must also be described with certainty. This requirement is satisfied if the description is one which enables the boundaries of the property to be ascertained or defined. In Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199; 3 ATR 546, Mason J held that part of the sea bed can be the subject matter of a demise if the boundary is described by reference to the surface as it exists from time to time, and the mere fact that the boundary may move is not fatal to the validity of the lease. See also Streatfeld v Winchcombe Carson Trustee Co (Canberra) Ltd [1981] 1 NSWLR 519 at 529; National Outdoor Advertising Pty Ltd v Wavon Pty Ltd (1988) 4 BPR 97,322 at 9734 (per Young J) and Brooks-Thornley v McMurtrie (1904) 21 WN (NSW) 127 at 128–9 (which is referred to by Young J in National Outdoor Advertising). On the question of certainty, see further [4.2], [6.3] and [14.3] and Chapter 6. [page 24]

Requirement as to writing [1.6] Any requirement that a lease be in writing is the result of statutory intervention rather than the application of any common law rule. The common law position is that a lease for any period of time may be created by oral agreement: see Alcova Holdings Pty Ltd v Pandarlo Pty Ltd (1988) 15 NSWLR 53 at 59 and Laserbem Pty Ltd v Gainsville Investments Pty Ltd [2004] VSC 62 at [30]–[34] (per Kaye J). Statutory intervention took place at various times but the provisions now generally applicable are to be found in derivatives of the relevant provisions of the Statute of Frauds 1677 (see [4.3]) and ss 52, 53 and 54 of the English Law of Property Act 1925 which are

repeated, with some minor variations, in the legislation of all states: and see, for some legislative history, Adamson v Hayes (1973) 130 CLR 276 (discussed at (1974) 48 ALJ 322 (RPA)) and Alcova Holdings Pty Ltd v Pandarlo Pty Ltd at 15 NSWLR 59, 60). Generally as to the operation of these provisions, see Farrand (ed), Wolstenholme and Cherry’s Conveyancing Statutes, pp 128–32; Stuckey, Conveyancing Act 1919–1969 [NSW], pp 42–50; and Robinson, Property Law Act (Victoria), pp 100–14. It is convenient to refer to Victorian ss 52, 53 and 54 which follow closely the structure and content of the English provisions upon which the corresponding legislation of other states is based. The provisions of s 52 of the Victorian Property Law Act render leases of land, except those that are not required by law to be in writing, void for the purpose of creating a legal estate unless made by deed: see Conveyancing Act 1919 (NSW) s 23B; Property Law Act 1974 (Qld) s 10; Law of Property Act 1936 (SA) s 28; Conveyancing and Law of Property Act 1884 (Tas) s 60(1); Property Law Act 1969 (WA) s 33. Except for Tasmania, all states have dispensed with the requirement for a seal, if the document bears the words ‘signed, sealed and delivered’: NSW s 38(3); Qld ss 45(2), 47; SA s 41(5); Vic s 73A; WA s 9(2), (4). Section 53 of the Victorian Act requires writing, in general terms, for the creation or disposition of any interest in land, a declaration of trust or the disposition of an equitable interest or trust: see NSW s 23C; Qld s 11; SA s 29; Tas s 60(2); WA s 34. These provisions are expressly subject to the provisions with respect to the creation of interests in land by parol; a reference to s 54 of the Victorian Act: see NSW s 23D; Qld s 12; SA s 30; WA s 35; Tas s 60(3), (4). Of particular relevance to leases is s 53(1) (Vic) which, subject to this general exception, provides that no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, by an agent lawfully authorised in writing so to do, by will or by operation of law. Section 54 of the Victorian Act (which reproduces s 2 of the Statute of Frauds) provides that all interests in land created by parol and not put in writing and signed by the persons creating the same, or by their agents lawfully authorised in writing, shall have, notwithstanding any consideration having been given for the same, the force and effect of interests at will only. Subsection (2), however, provides that: [page 25]

… nothing in the foregoing provisions of this Division shall affect the creation by parol of leases taking effect in possession for a term not exceeding three years (whether or not the lessee is given power to extend the term) at the best rent which can be reasonably obtained without taking a fine. [See NSW s 23D; Qld s 12; SA s 30; Tas s 60(3), (4); WA s 35.] If a lease is to fall within the ambit of s 54(2) it must also take effect in possession at the time the lease is actually made: see Long v Tower Hamlets London Borough Council [1998] Ch 197; and Laserbem Pty Ltd v Gainsville Investments Pty Ltd [2004] VSC 62 at [35]–[38] (per Kaye J). Thus the grant of a weekly tenancy under which possession is to be given at a future date is not a lease ‘taking effect in possession’ within s 54(2): Haselhurst v Elliot [1945] VLR 153. The lease falls within s 54(2) if it is for a term of three years from the making thereof, and not from a future day: Rawlins v Turner (1699) 1 Ld Raym 736; 91 ER 1392, or if it is for a term commencing on a future day and expiring on a day not more distant than three years from the making of the lease: Ryley v Hicks (1725) 1 Str 651; 93 ER 760; Kewley v Ball [1913] VLR 412. A lease is for a term not exceeding three years if at the time of the agreement it may last for less than three years, although it may also last for more: Ex parte Voisey; Re Knight (1882) 21 Ch D 442. Therefore, yearly: Hammond v Farrow [1904] 2 KB 332 at 335; Dennis & Copley v Eddie [1952] VLR 92 at 99, weekly: Haselhurst v Elliot [1945] VLR 153 and other periodic tenancies may be created verbally; compare the view expressed in Harrison, Cases on Land Law, pp 165–6. In Greco v Swinburne Ltd [1991] 1 VR 304 Gobbo J said, at 310, with reference to s 54(2): As to the three year provision, I am of the view that the claimants’ submission is a valid one. In my opinion, a lease exceeds three years if it must last longer than three years. If it provides for a period that may be less than three years then it is valid without any formalities, even though it is capable of lasting longer. Here the parol agreement for a lease for the lives of the lessors might have lasted less than three years. It was also to take effect in possession. See also Australian Posters Pty Ltd v Wyuna Holdings (1993) 15 Qld Lawyer Reps 21 (Dist Crt, Qld).

In Hand v Hall (1877) 2 Ex D 355 it was held, dealing with corresponding English provisions, that a lease for less than three years containing an option for a further three-and-a-half years was a lease for a term not exceeding three years; see also Roberts v Birkley (1888) 14 VLR 819 at 823–4; Gerraty v McGavin (1914) 18 CLR 152 at 163–4, to the same effect; see too 195 Crown Street Pty Ltd v Hoare [1969] 1 NSWR 193. As Misiaris v AFC Holdings Pty Ltd (1988) 15 NSWLR 231 indicates, the question is to be determined in some cases by the proper construction of the relevant statutory provisions (in that case Local Government Act 1919 (NSW) s 327AA(2)). As to construction, regard should be had to the words ‘(whether or not the lessee is given power to extend the term)’ which appear immediately after the words ‘for a term not exceeding three years’ in s 54(2) of the Victorian Property Law Act. The meaning of [page 26] these words in brackets does not appear to have been considered directly in the cases dealing with the issue whether or not a particular lease has taken effect in possession for a term not exceeding three years. The words in brackets are not referred to in the annotations to the Act in Robinson, The Property Law Act (Victoria), or in Wolstenholme and Cherry’s annotation of the English Law of Property Act 1925. Some reference is made to these words in the equivalent provisions of s 23D(2) of the Conveyancing Act 1919 (NSW) in Stuckey, Conveyancing Act 1919–1969, p 49. Stuckey comments with respect to the term to which the New South Wales equivalent (s 23D) applies as follows, at 49: Subsection (1), and ss 23B(1) and 23C(1)(a), apply where the term of the tenancy, together with any period by which it may be extended by the lessee, extended three years from its commencement. There is a footnote reference to this statement, namely: ‘cf Ex parte Voisey (1882) 21 Ch D 442 at 458’. It is not entirely clear whether the reference intended is to a discussion of the Statute of Frauds. In any event, the reference

to Ex parte Voisey; Re Knight at 458 appears to be to the discussion of the position with respect to a periodic tenancy. As to this, Brett LJ said: But if, at the time of the arrangement, the tenancy may last for less than three years, although it may last for more, it is not within that section of the statute at all. And it is obvious that the tenancy in this case, although it may last for more than three years, may last for less. A similar position is reached in other cases with respect to periodic tenancies of varying periods, see, for example, Haselhurst v Elliot [1945] VLR 153 as to a weekly tenancy and Dennis v Copley and Eddie [1952] VLR 92 at 99 with respect to a yearly tenancy (and see the cases referred to below). Nevertheless there appears to be some support for Stuckey’s view in Redfern and Cassidy, Australian Tenancy Practice and Precedents, [205], pp 1596–7, especially p 1596, n 19, referring to Alcova Holdings Pty Ltd v Pandarlo Pty Ltd (1988) 15 NSWLR 53. Although the wording of the New South Wales provision (s 23D(2)) is slightly different in this respect from the words of s 54(2) of the Victorian Act it seems that these words are equally explicable as having been inserted out of an abundance of caution to indicate that the period of any term available under an option to renew is to be disregarded. This is consistent with authorities to which reference has been made and, particularly, the position that until an option to renew is exercised no new or additional interest passes to the tenant: Gerraty v McGavin at 163; and see 195 Crown Street Pty Ltd v Hoare; and [14.5]. The question arises whether a lease for a period exceeding three years which gives the lessor an option to determine the lease at the end of any year is a lease for a term exceeding three years. In Kushner v Law Society [1952] 1 KB 264 it was held, distinguishing Ex parte Voisey; Re Knight (1882) 21 Ch D 442, that a lease for a term of 14 years containing a clause whereby the lessee could determine the lease at the end [page 27] of any year was a lease for a term exceeding three years within the meaning of the English provision corresponding to s 54(2) (that is,, Law of Property Act

1925 s 54(2)). Similarly, in Quinlan v Avis (1933) 149 LT 214, it was held that a lease was a lease for a term of not less than two years within the meaning of a provision similar to that to be found in the Landlord and Tenant Act 1958 (Vic) s 48 (a provision repealed as from 1 September 2012 — see LL&T Comparative Table), notwithstanding that the lessee had an option to determine it. In Kushner v Law Society Lord Goddard CJ said, at 273: It seems to me that we must apply to this document the same principle which has always been applied to the construction of s 4 of the Statute of Frauds, which provides that contracts not to be performed within a year must be in writing. The principle of law, which is now well established and was reaffirmed by the House of Lords in 1912 in Hanau v Ehrlich [1912] AC 39, is that, if a contract is for an indefinite term but can be determined by either party at reasonable notice within the year, the statute does not apply, but, if the contract is for a definite period extending beyond the year, though it may be concluded by notice within a year, the statute does apply. The agreement now before us purports to create a lease for 14 years with a provision that it may be determined earlier. Notwithstanding that provision, the lease is for a definite period. This passage suggests that it makes no difference whether the option to determine is given to the lessor or the lessee; in neither case will the presence of the option prevent the lease from being one which exceeds three years. In Quinlan v Avis (1933) 149 LT 214 at 215, Talbot J said: The object of Parliament was that at the time when the premises were decontrolled the tenant should have security for at least two years. That security is not in any way lessened by giving him an option to determine within a shorter period. The security is, of course, taken away if the landlord has an option to determine the lease. As can be seen, an oral lease taking effect in possession for a term of say, two-and-a-half years at the best rent which can be reasonably obtained without taking a fine, is good. But an oral agreement to create a weekly tenancy in the future is caught by the Statute of Frauds provisions (see [4.3]), so that unless there has been part performance, such an agreement is

unenforceable. Agreements for a lease are discussed in Chapter 4. On the question of part performance, see [4.5]. Where the manager of a company acting with due authority signs a lease in his or her capacity as manager, such writing satisfies s 54(1). In those circumstances, no written authority to the agent is necessary under that section because the manager was not executing the lease as an agent. Rather, the lease was executed by the company, its execution being authenticated by the manager’s signature: Richardson v Landecker (1950) 50 SR (NSW) 250. An oral agreement not to terminate a yearly tenancy before a date more than 12 months hence is not enforceable as it is an agreement not to be performed within a year under the Statute of Frauds: see Take Harvest Ltd v Liu [1993] AC 552 at 565–6. [page 28] Section 54(2) applies only if the rent is ‘the best rent which can be reasonably obtained without taking a fine’. The corresponding provisions in the other states are similarly phrased: see Conveyancing Act 1919 (NSW) s 23D(2); Law of Property Act 1936 (SA) s 30(2); Conveyancing and Law of Property Act 1884 (Tas) s 60(4); compare Property Law Act 1974 (Qld) s 12(2); Property Law Act 1969 (WA) s 35(2) which contain no proviso in relation to the rent. For a comprehensive review of the authorities on the nature of fines and premiums, see Burke v Gillett (1994) V ConvR ¶54-507 at 65, 816–21 (per Ormiston J); and see Whitemore Pty Ltd v O F Gamble Pty Ltd (1991) 6 WAR 110. A lease which does not fall within s 54(2), and is not made by deed, is void at law: see Long v Tower Hamlets London Borough Council [1998] Ch 197; and Laserbem Pty Ltd v Gainsville Investments Pty Ltd [2004] VSC 62 at [35]–[38] (per Kaye J). But if the lessee takes possession under a void lease, then at common law a tenancy at will arises (see [2.15], [2.17]); and, on payment of rent, a yearly or other periodic tenancy is created, on the terms of the void lease so far as they can be applied: Martin v Smith (1874) LR 9 Ex 50; [1874] 80 All ER Rep Ext 1903; Moore v Dimond (1929) 43 CLR 105; see further [2.9]–[2.15]. Moreover, in equity, under the doctrine of Walsh v Lonsdale (1882) 21 Ch D 9; [1881] 51 All ER Rep Ext 1690, the lessee under the void

lease is in the same position as regards the lessor as if a valid lease has been granted, provided that there is either a sufficient memorandum or some act of part performance; see further [4.5]–[4.8]. A lease under seal can be varied by an agreement not under seal: Plymouth Corporation v Harvey [1971] 1 WLR 549 at 554. In the New South Wales Conveyancing Act 1919, s 127(1) provides to the effect that ‘no tenancy from year to year shall be implied by payment of rent and … if there is a tenancy and no agreement as to its duration then it shall be deemed to be a tenancy determinable by either party by one month’s notice in writing expiring at any time’: see Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 26; and Gobblers Inc Pty Ltd v Stevens (1993) 6 BPR 97,488. Property Law Act 1974 (Qld) s 129(1) and the Property Law Act 1969 (WA) s 71 is the only equivalent legislation. See Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 248–50 and Australian Posters Pty Ltd v Wyuna Holdings Pty Ltd (1993) 15 Qld Lawyer Reps 22 (Qld, Dist Crt) with respect to the Queensland legislation. The effect of the corresponding New South Wales provisions to ss 52, 53 and 54 of the Victorian Property Law Act (and those of the other states, and England, see above) was considered and summarised by Jordan CJ in Dockrill v Cavanagh (1944) 45 SR (NSW) 78; and see Enkelmann v Glissan (1982) NSW ConvR ¶55-084; Alcova Holdings Pty Ltd v Pandarlo Pty Ltd and Wykes v Samilk Pty Ltd (1998) NSW ConvR ¶55-871 (CA). In Leask v Farlmist Pty Ltd [1999] ANZ ConvR 566 at 568; BC9806783 at 11 Sheller JA, with whom the other members of the New South Wales Court of Appeal (Beazley JA and Fitzgerald AJA) agreed, said that, where the appellant had gone into occupation as [page 29] a tenant at will at a particular rent per month and s 127 of the Conveyancing Act 1919 (NSW) applied, the tenancy at will was terminable by a month’s notice expiring at any time, referring to Dockrill v Cavanagh (1944) 45 SR (NSW) 78 at 84; and similarly Wykes v Samilk Pty Ltd (1998) NSW ConvR

¶55-871 (CA) at 56,827–8 (per Sheller JA, with whom Beazley and Stein JJA agreed); and see [2.19]. As to the corresponding Western Australian provisions, see Adamson v Hayes (1973) 130 CLR 276 at 298 (per Walsh J) and 306 (per Gibbs J); Redden v Wilks and the Registrar of Titles [1979] WAR 161; Ratto v Trifid Pty Ltd [1987] WAR 237 (FC); Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191 (FC); and Bayside Developments Pty Ltd v Copperart Pty Ltd (1994) 11 SR (WA) 316 (WA, Dist Crt) at 326–8. In Abjornson v Urban Newspapers Pty Ltd, Kennedy J considered the operation of these provisions (at [1989] WAR 199): Relevantly for the present purposes, the rules may be stated in summary form as follows, the references to sections being to sections of the Property Law Act: (1) A lease of land taking effect in possession for a term not exceeding three years may be made verbally, in writing or by deed (ss 35(2), 33(2)(d)). It has been held that the grant of a lease to commence at a future date does not fall within s 35(2) as a lease taking effect in possession: Haselhurst v Elliot [1945] VLR 153. Furthermore, the period of three years runs from the date of the making of the lease: Rawlins v Turner (1699) 1 Ld Raym 736; 91 ER 1392. (2) Subject to (1), a lease of land is required by s 33(1) to be by deed if it is to create a legal estate. (3) If a lease which does not fall within the terms of s 35(2) is not made by deed, it has, at law, the force and effect of an interest at will only. If, however, the lessee takes possession under a void lease, then, at common law, on payment of rent a tenancy from year to year is created and the lessee holds the land upon the terms and conditions of the lease, save in so far as they are inconsistent with a tenancy from year to year. Similarly, at common law, when a lessee takes possession and pays rent under an agreement to grant a lease in future, whether or not it is in writing, a tenancy from year to year is created: Chapman v Towner (1840) 6 M&W 100; 151 ER 338; Moore v Dimond (1929) 43 CLR 105, and in particular at 113–17. (But see now s 71).

(4) In equity, a lessee who takes possession under an agreement for a lease of which specific performance would be granted, provided that it is sufficiently evidenced in writing or there has been part performance, holds under the same terms as if the lease had actually been granted: Walsh v Lonsdale (1882) 21 Ch D 9; Manchester Brewery Co v Coombs [1901] 2 Ch D 608. (5) A lease falling outside the terms of s 35(2) and which is not made by deed is construed as an agreement for a lease and may be enforced as such: Parker v Taswell (1858) 2 De G & J 559; 44 ER 1106; Martin v Smith (1874) LR 9 Exch 50. For a most comprehensive review of the corresponding English legislation and authorities, see Long v Tower Hamlets London Borough Council [1998] Ch 197. [page 30] Consequently, the position may be summarised as follows: (1) A lease for a term not exceeding three years and which otherwise complies with s 54(2) of the Victorian Act and its equivalents may be made orally, in writing or by deed. (2) All other leases should be made by deed. If they are not so made, the lessee will be: (a) at law, at best a yearly (or other appropriate periodic) tenant upon the terms of the lease, so far as applicable; (b) in equity, a tenant for the appropriate term of years, provided that there is either a sufficient memorandum or a sufficient act of part performance; see further [4.3]–[4.8]. This should be compared to an agreement for a lease which must be in writing even if the contemplated demise is to be only for a month. This is so because of the operation of s 126 of the Instruments Act 1958 (Vic), which only applies to agreements for lease; unlike the provisions of ss 52–54 of the Victorian Property Law Act 1958 (and their equivalents) which have been

held to apply to leases and dispositions of property: see Laserbem Pty Ltd v Gainsville Investments Pty Ltd [2004] VSC 62, particularly at [33] (per Kaye J); and see [4.3]: NSW s 54A; Qld s 59; SA s 26; Tas s 36; WA: Statute of Frauds 1677 s 4 as amended by the Law Reform (Statute of Frauds) Act 1962. As to NSW s 54A and equitable estoppel, see Waltons Stores (Interstate) Ltd v Maher (1988) 62 ALJR 110 at 129, 135. In relation to the statutory requirements with respect to the sufficiency of the note or memorandum and what constitutes signature, see [4.4]. In Crago v Julian [1992] 1 WLR 372 (CA) (and see All ER Rev 1992 pp 233–4) it was held that on a true construction of ss 52 and 53 of the Law of Property Act 1925 (Eng) (which correspond with the same sections of the Victorian Act) an assignment of a leasehold interest was effective to pass the legal estate only if it was in writing and in the form of a deed: and see [15.17]. The relationship between the Statute of Frauds provisions and s 34(1)(a) of the Western Australian Property Law Act (see s 53(1)(a) of the Victorian Act) was considered in Ratto v Trifid Pty Ltd [1987] WAR 237 (FC) at 258 (per Brinsden J): ‘Section 34 of course is not a Statute of Frauds provision. Its very terms deny the creation of an interest in land unless the provisions of the section are complied with whereas the Statute of Frauds does not deny the legality of the contract but simply makes it unenforceable unless the Act is complied with … It has been held by Burt CJ in Redden v Wilks [1979] WAR 161 that s 34 does affect equitable as well as legal interests in land relying on the dictum of Gibbs J (as he then was) (at 304) and Stephen J (at 319–20) in Adamson v Hayes (1973) 130 CLR 276. I propose to follow Redden v Wilks.’ See also Mr Commissioner Murray (as he then was) in Blazey v Polletti (unreported, Supreme Court, WA, Commissioner Murray, 23 May 1989). [page 31] See also Bayside Development Pty Ltd v Copperart Pty Ltd at (1994) 11 SR (WA) 326–8. In Bayside Developments the differing requirements of s 34(1)(a)

of the Western Australian Property Law Act (see s 53(1)(a) of the Victorian Act) and the relevant Statute of Frauds provisions in that state as to the requirement that the authority of any agent to sign be properly authorised in writing was considered: see at (1994) 11 SR (WA) 329. Only the Victorian Statute of Frauds provisions contain provisions similar to those contained in s 53(1)(a) of the Property Law Act requiring the agent to be properly authorised in writing: see [4.3]. In any event an agent’s authority must be clear: see Showa Shoji Australia Pty Ltd v Oceanic Life Ltd (1994) 34 NSWLR 548 at 568–9. In the present context regard should be had to the provisions of Torrens title legislation of the various states, though this is not a text on land title generally, Torrens title or otherwise. As to the latter reference should be made to Woodman and Nettle, Baalman’s Torrens Title in New South Wales, and Robinson, Transfer of Land in Victoria. It follows, logically, that as the Torrens system is a registration system for written instruments then if a lease is to be registered it must be in writing and comply with the registration requirements. Robinson suggests that it follows, strictly, from s 40(1) of the Victorian Transfer of Land Act 1958 that an estate or interest in Torrens title land cannot arise other than on registration (see Robinson, Property Law Act (Victoria), pp 103–4; referring to Robinson, Transfer of Land in Victoria, Chapter 3). The practice as to the registration of leases of Torrens title land varies. All states provide for registration but in Victoria, for example, the practice is not to register leases and to rely upon the paramount interests exception to indefeasibility provisions of s 42(2)(e) of the Transfer of Land Act 1958 in favour of the interest of a tenant in possession of the land (but excluding any option to purchase): see, for example, Alcova Holdings Pty Ltd v Pandarlo Pty Ltd as to the equivalent provision of the Real Property Act 1900 (NSW) s 42(1)(d). It the tenant is not in possession or an option to purchase is to be protected then registration of the lease or a caveat or caveats (for both the leasehold interest and the interest under the option) may be required. Most tenants are in possession, either directly or by the possession of those deriving title from them. In many cases (but depending on the proper construction of the lease covenants) a tenant would be in breach of the terms of the lease not to be in actual possession — and carrying on the business. In states where registration of leases is the norm the express or implied agreement between the parties, in the lease or associated transactions (such as guarantees), may

require registration of the lease, hence a written lease which complies with the requirements of relevant Torrens title legislation: see, generally, Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 (especially at 27 (per Mason J)); Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; Chan v Cresdon Pty Ltd (1989) 168 CLR 242; Charmer Electrical Pty Ltd v Minda Inc (1990) 55 SASR 112 at 117–18; Australian Posters Pty Ltd v Wyuna Holdings Pty Ltd (1993) 15 Qld Lawyer Reps 22; Ashton v Hunt [1999] 1 Qd R 571 (CA); and see Redfern [page 32] and Cassidy, above, [2 10]–[2 35]; see also [14.5]. The Victorian authorities appear to indicate that where registration of a lease is not required (by statute or agreement in the lease or flowing from that contained in an associated transaction) unregistered leases (oral or written) are to be treated according to general law rules and as subject to the provisions of ss 52, 53 and 54 of the Property Law Act: but see Christensen, ‘Are Long-Term Leases Not in Registrable Form Void at Law and in Equity?’ (1994) 14 Qld Lawyer 227; referred to in Bayside Developments Pty Ltd v Copperart Pty Ltd at (1994) 11 SR (WA) 333–4. Registration of a lease under Torrens title legislation may have significant consequences in terms of saving the operation of an otherwise void instrument: see, for example, Karacominakis v Big Country Developments Pty Ltd (2000) 10 BPR 18,235; [2001] ANZ ConvR 513; [2001] ANZ ConvR 577 (CA) (per Giles JA (with whom Handley and Stein JJA agreed) at [101], referring to Telado Pty Ltd v Vincent (1996) NSW ConvR ¶55-786). The question whether a legal assignment of a lease must be by deed is discussed at [15.17].

Term and reversion [1.7] A tenant has an estate or interest in land carved out of the estate of his landlord: Keith v Twentieth Century Club (1904) 52 WR 554; see further [1.2]. The lease creates an interest for a term less than that which the grantor has:

Chelsea Investments Pty Ltd v Federal Commissioner of Taxation (1966) 115 CLR 1 at 8; [1966] ALR 929. The term must be certain: see Street v Mountford [1985] AC 809 at 818–19 and [1.5], [2.2]. The lease of an estate is in fact the sale of a partial interest in it: Re O’Shea [1957] VR 352 at 356. The interest which the lessor retains is known as the reversion. Ordinarily, an incident of the reversion is the right to receive from the lessee payment for the use of the land; reservation of rent is not, however, essential: see [1.12]. The reversion may be assigned, thereby creating the relationship of landlord and tenant between the assignee and the original lessee. The assignment of the term (which creates the relationship between the assignee and the lessor) is considered in [15.1]–[15.21]. The reversion is not necessarily freehold; where the reversioner is personally the holder of a mere leasehold interest, the lease carved out of that interest is called a sublease; see further [1.8].

Subleases [1.8] The power to grant leases is not confined to the owners of freehold estates: the holder of a leasehold interest may grant a lease. A lease granted by the holder of a leasehold interest is called an underlease or (more commonly) a sublease. In the same [page 33] way, the holder of the leasehold interest created by the sublease may grant a further lease, called a sub-underlease. Indeed, there is no limit to the number of lesser leasehold estates which may be carved out of the freehold estate. Two rules must, however, be borne in mind. In the first place, a tenancy at will is not an interest which permits of the creation of a sublease: Fink v McIntosh [1946] VLR 290 at 292–3. In the second place, if it is desired to create a sublease as opposed to effect the assignment of the term, some reversion, be it only a day, must be preserved; otherwise the purported sublease will amount to an assignment: White v Kenny [1920] VLR 290. For an example of the

retention of a reversion of one day upon the grant of a sublease by the holder of a 55 year building lease, see Re Automotive & General Industries Ltd’s Lease (SC(Vic), Adam J, 1 May 1970, unreported). A purported assignment of less than the whole term is a sublease: 409 Lonsdale St Pty Ltd v Carra [1974] VR 887 at 893. For the purpose of the rule that a purported sublease will take effect as an assignment, if it in fact transfers the whole of the interest of the supposed sublessor, a tenancy from year to year is regarded as a tenancy which continues until it is in fact determined; accordingly a tenant from year to year may grant a sublease from year to year or even for a term of years: Oxley v James (1844) 13 M & W 209; 153 ER 87; 409 Lonsdale St Pty Ltd v Carra at 893; W Skelton Ltd v Harrison & Pinder [1975] QB 361 at 367. This principle applies to other periodic tenancies, and a weekly tenant may sublet the premises from week to week: Woods v Moses [1953] ALR (CN) 1165. Subleases are further discussed in [15.2]–[15.6].

Concurrent leases [1.9] Where a lease is already in existence the lessor may grant a further lease, concurrent with the existing term. Such a lease is known as a concurrent lease. It is a lease for a term to commence in praesenti, subject to an existing lease: Stewart v Goldman & Co Pty Ltd (1947) 64 WN (NSW) 155. In Waterhouse v Waugh [2003] NSWCA 139 the Court of Appeal considered the effect of a purported immediate delivery of possession with the right to future rent in circumstances where there was already a weekly tenant in possession. As to its effect, Handley JA (with whom Giles JA and Young CJ in Eq agreed) said: [27] As Young CJ in Eq suggested during argument, the law can only give effect to this intention by treating the transaction as a concurrent lease, that is, as a tenancy at will from the brothers to the appellants of the reversion expectant on the tenant’s weekly tenancy. See Horn v Beard [1912] 3 KB 181, 187–8; and Conveyancing Act s 120A(5). The nature of a concurrent lease is described by Woodfall’s ‘Law of Landlord and Tenant’, 28th ed, 1978 at p 246:

A concurrent lease is one granted for a term which is to commence before the expiration or other determination of a previous lease of the same premises to another person. Such a lease is said to take effect in reversion expectant upon the earlier term, which may be either shorter or longer than the concurrent term. [page 34] But it should be observed that the concurrent term takes effect at once from the time limited for its commencement, and operates as an assignment of the reversion during such time as the two terms run concurrently … It entitles the lessee, as assignee of part of the reversion, to the rent reserved in the previous lease, and to the benefit of the covenants therein contained, which are to be respectively paid and performed during the then residue of the term granted by the first lease, and the continuance of the concurrent lease. [28] In the absence of a contrary intention a concurrent lease passes to the concurrent lessee the concurrent lessor’s accrued rights under the existing lease. See Cole v Kelly [1920] 2 KB 106 CA and London & County Ltd v W Sportsman Ltd [1971] Ch 764 CA, 781–2. … So a concurrent lease operates as an assignment pro tanto of the reversion: Land v Clyne (1968) 92 WN (NSW) 134. It may be defined as a lease of the reversion immediately expectant on an existing lease: Wordsley Brewery Co v Halford (1903) 90 LT 89; Carberry v Gardiner (1936) 36 SR (NSW) 559 at 577; Stewart v Goldman & Co Pty Ltd (1947) 64 WN (NSW) 155; Cook v Evans (1948) 49 SR (NSW) 83; Richardson v Landecker (1950) 50 SR (NSW) 250; Eureka Operations Pty Ltd v Viva Energy Australia Ltd [2015] VSC 648 (and [2016] VSCA 95 (Appeal dismissed)). A concurrent lease interposes the concurrent lessee between the existing lessor and lessee, the concurrent lessee becoming the landlord of the existing lessee: Buckby v Speed [1959] Qd R 30; Land v Clyne (1968) 92 WN (NSW) 134. The concurrent lessee is,

accordingly, the proper person to determine the existing lease, for example, by giving notice to quit, where this is an appropriate mode of determining it: Stewart v Goldman & Co Pty Ltd or by re-entry in an appropriate case: London and County (A & D) Ltd v Wilfred Sportsman Ltd [1971] Ch 764, in the headnote to which the second lease is wrongly described as a reversionary lease. It is the concurrent lessee who is entitled to possession on the termination of the existing lease and it is he or she who can maintain ejectment proceedings on the termination of that lease: Traynor v Thompson [1953] VLR 706 at 717. This is so even if the existing term is brought to an end prematurely, as by surrender: Neale v Mackenzie (1836) 150 ER 635 at 641. The concurrent term, while it must begin before the expiration of the earlier term, may end either before or after the earlier term. A concurrent lease is not a future lease, to be enjoyed only when the earlier term comes to an end. A concurrent lease gives forthwith a right to the rents arising from the existing lease and to the benefit of the tenant’s covenants therein contained: Re Moore & Hulm’s Contract [1912] 2 Ch 105; Cole v Kelly [1920] 2 KB 106; [1920] All ER Rep 537; Neale v Mackenzie (1836) 1 M & W 747; Noone v Traynar (1952) 69 WN (NSW) 33 at 35; Traynor v Thompson, above, at 716; Property Law Act 1958 s 149(5). A future, or reversionary, lease is one which is to commence in reversion, that is to say, which is not to take effect until some date in the future. Future leases are the subject of [1.10]. A tenant who has granted a sublease may grant a concurrent sublease: Woods v Moses [1953] ALR (CN) 1165. [page 35] Concurrent leases were used, until the legislation was amended and later repealed, as a device for evading the operation of s 85(1) of the Landlord and Tenant Act 1958 (Vic): see Cook v Evans (1948) 49 SR (NSW) 83; Kirsch v Auhl [1949] VLR 324.

Future or reversionary leases

[1.10] A lease may be granted to take effect in possession either at once or from some date in the future. Further, a lease may be made to commence from a date in the past: a large proportion, if not indeed the majority, of leases executed are of this kind. It is not possible, however, by a lease executed, say, in February 1970 to create a term beginning on 15 December 1969 in the sense of bringing into existence a term before the date of the execution of the lease. In such a case, the lease relates back to the date from which the term is expressed to commence only for the purpose of marking the duration of the lessee’s interest: its operation as a grant is merely prospective from the date of its execution: Shaw v Kay (1847) 1 Ex 412; 154 ER 175; King v McIvor (1883) 4 LR (NSW) 43; 4 ALT 153; Fernhill Railway Co v Mayor of Dunedin [1884] NZLR (SC) 86; Earl Cadogan v Guiness [1936] 2 All ER 29; [1936] Ch 515; Queensland Television Ltd v Federal Commissioner of Taxation (1969) 1 ATR 419; 119 CLR 167; Roberts v Church Commissioners for England [1972] 1 QB 278; Perpetual Trustee Co Ltd v Morley (1968) 121 CLR 659 at 662–3; Bradshaw v Pawley [1980] 1 WLR 10; Brikom Investments Ltd v Seaford [1981] 1 WLR 863 at 866–7. In relation to agreements for lease, see [4.1]. A lease granted to take effect in possession from some date in the future is a future lease; such leases, since they take effect in reversion, are also called reversionary leases. Future leases must not be confused with concurrent leases. An example of the confusion of the two kinds of lease is found in the headnote to London and County (A & D) Ltd v Wilfred Sportsman Ltd [1971] Ch 764, where a concurrent lease is misdescribed as a reversionary lease. A concurrent lease is a lease which is to take effect immediately in possession, subject to an existing lease. Further leases are leases in reversion: concurrent leases are leases of the reversion. See [1.9]. Although the expressions ‘future lease’ and ‘reversionary lease’ are generally treated as synonymous, the latter is by some reserved for those future leases in which the term commences after the determination of some earlier lease: Green v Bowes-Lyon [1960] 1 All ER 301; [1960] 1 WLR 176 at 181, as opposed to future leases where the date of commencement of the term is fixed in some other manner. An example of a reversionary lease in the narrow sense is found in Fuller’s Theatre & Vaudeville Co Ltd v Rofe [1923] AC 435 at 438.

By the doctrine of interesse termini, actual entry had to be made by the tenant in order to perfect his or her title. Until entry he or she had no estate in the land, but [page 36] only a right of entry, which was called interest in the term, or interesse termini: Joyner v Weeks [1891] 2 QB 31 at 47; [1891–4] All ER Rep Ext 1438. This doctrine has been abolished by statute: Property Law Act 1958 (Vic) s 149(1). The only limitation now in respect of the grant of future leases is that contained in s 149(3) of the Property Law Act 1958 (Vic), whereby a term, at a rent or granted in consideration of a fine, limited after the commencement of the Act to take effect more than 21 years from the date of the instrument purporting to create it shall be void, and any contract made after such commencement to create such a term shall likewise be void: Conveyancing Act 1919 (NSW) s 120a(3); Property Law Act 1974 (Qld) s 102(3); Property Law Act 1969 (WA) s 74(3). The subsection does not apply to any term taking effect under a settlement, or created out of an interest under a settlement, or under a power for mortgage, indemnity or other like purposes. The effect of this provision is considered in Re Strand and Savoy Properties Ltd [1960] 2 All ER 327; [1960] Ch 582; and Weg Motors Ltd v Hales [1961] 3 All ER 181; [1962] Ch 49.

Building leases [1.11] A building lease contains a covenant by the lessee to erect buildings on the demised land. The covenant may be either to erect a building on vacant land or to pull down old buildings and erect new ones in their place. A building lease is to be contrasted with a repairing lease: City of London v Nash (1747) 26 ER 1095 at 1096. The rent paid by the lessee under a building lease is known as ground rent: see [1.12].

Rent [1.12] The only necessary characteristic of any tenancy is that it should give the right of exclusive possession to the tenant for an ascertainable period of time; the reservation of rent is not essential: Weston v Ray [1946] VLR 373 at 377; Francis Longmore & Co Ltd v Stedman [1948] VLR 322 at 323; Burns v Dennis (1948) 48 SR (NSW) 266, and other authorities referred to and applied in Hayes v Seymour-Johns (1981) 2 BPR 9366 at 9369. The position was stated very clearly by Barry J in Francis Longmore and Co Ltd v Stedman [1948] VLR 322 at 323; [1948] 1 ALR 126 at 127: The only necessary characteristic of any tenancy is that it should give the right to exclusive possession to the tenant for an ascertainable period of time (Lace v Chantler, [1944] 1 KB 368, per Greene MR, at p 370); reservation of rent is not essential (Landale v Menzies, [1909] 9 CLR 89, per Griffith CJ, at p 100–p 101, per Barton J, at p 111; Commonwealth Life Assurance Co v Anderson, [1946] 46 SR (NSW) 47, at p 49; Burns v Dennis, [1948] 65 WN (NSW) 55, at p 56), and the subsequent arrangement by which the plaintiff relieved Stedman of the obligation to pay rent did not alter the character of the occupation. [page 37] See also Cuttle v Brandt (1947) 64 WN (NSW) 96; Western Australian Club Inc v Nullagine Investments Pty Ltd (1992) 6 WAR 441; [1993] ANZ ConvR 403; on appeal Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635; 116 ALR 26; BC9303589; and NZI Insurance Australia Ltd v Baryzcha (2002) 85 SASR 482; [2002] SASC 16; BC200200071. In NZI Insurance Australia Ltd v Baryzcha, above, issues arose in relation to whether a new lease agreement had been negotiated in the absence of final agreement as to rent. It was, consequently, not a case where, as in Francis Longmore, there were arguments as to whether the parties intended that rent should be payable at all but a case where a question of the existence, or enforceability, of a lease pending final agreement as to rent arose. In the

context, Mullighan J in NZI Insurance Australia Ltd v Baryzcha, above, considered the authorities at [50]–[57]: [50] As has been mentioned, the evidence establishes that by the end of May 2000 and probably agreement earlier had been reached on all matters, except the manner of rent review and the extent of the rentfree period. It is only in that respect that the ‘rent’ had not been agreed. Also, it must be acknowledged that the negotiations had always proceeded on the basis that the other terms and conditions of the lease would be the same as in the draft lease which were the same as in the expired lease. The lack of agreement about the manner of rent review and the rent-free period does not mean that there was a lack of agreement about rent. In Beer v Bowden there was a binding and valid lease for the period beyond the first five years even though the new rent had not been agreed and there was no agreement as to how the amount of the rent was to be fixed in the absence of an agreement. Despite the argument to the contrary, I think this decision is authority for the proposition that agreement as to rent is not essential for the existence of a lease. Mr Jenner sought to distinguish this decision on the basis that there was a lease in existence although the rent after the first five years had not been agreed. I do not regard that as a valid point of distinction. In the present case there was agreement about all matters except the rent review and the rent free period. I accept that in the absence of agreement as to the amount of the rent, the law will require a tenant to pay a reasonable rent which will be determined by the courts if the parties cannot agree. In Francis Longmore & Co Ltd v Stedman [1948] VLR 322 at 323 Barry J said: The only necessary characteristic of any tenancy is that it should give the right to exclusive possession to the tenant for an ascertainable period of time (Lace v Chantler [1944] 1 KB 368 at 370 per Greene MR); reservation of rent is not essential (Landale v Menzies (1909) 9 CLR 89 at 100–101 per Griffith CJ, per Barton J, at 111; Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47 at 49; Burns v Dennis (1948) 48 SR (NSW) 266 at 267), …

[51] Mr Jenner submitted that this decision has no application to the present case because it is concerned with particular regulations in force in the State of Victoria at the time. I reject that submission. The particular regulation did not bear upon the question which had to be decided, namely whether the relationship of landlord and tenant arose even though the premises were occupied under arrangements which did not involve payment of rent. [page 38] [52] Next it was submitted that the authorities relied upon by Barry J did not support the proposition that ‘reservation of rent is not essential’. I do not agree. While Landale v Menzies (1909) 9 CLR 89 was concerned with a tenancy at will between owners of adjoining properties regarding certain land and water at or near a fence, the judgment of Griffith CJ was referred to for the principle which he stated as follows (at 100–101): A contract for the exclusive occupation of land for a determinate period, however short, constitutes a lease: R v Morrish 32 LJMC, 245. It may be seen that there is no mention of rent, although the frequency of the payment of rent may determine when a tenancy at will may be terminated. In Landale v Menzies Barton J (at 111) referred to the definition of Woodfall (17th ed p 141) of a lease as ‘a contract for the exclusive possession of land or tenements for some certain number of years or other determinate period’. Again, there is no reference to rent. In Commonwealth Life (Amalgamated) Assurance Ltd v Anderson the Full Court of New South Wales was concerned with whether a weekly tenancy is a tenancy at will and, therefore, unassignable. Jordan CJ, with whom the other members of the court agreed, said (at 49): But the only essential characteristic of any lease is that it should give the right of exclusive possession of premises to a tenant. So long as the letting is of this character, and is for a specific

period, it is a lease for a term, however short the period or periods, continuous or discontinuous, during which it confers rights of exclusive possession; and it creates an estate in the land: R v St Martin-in-the-Fields [1842] 3 QB 204; Joel v International Circus and Christmas Fair (1920) 124 LT 459. In Burns v Dennis [1948] 65 WN (NSW) 55 the Full Court of New South Wales when considering whether an arrangement to occupy premises was a tenancy, said, at 56: It is true that no rent was to be paid for 12 months from the date of the document; but ‘the reservation of the rent is not of the substance of the lease, for a lease may consist without any reservation’: Knight’s Case (1588) 5 Co Rep 54b at 55a. It may be seen that in neither of the last two mentioned cases was reservation of rent regarded as essential. I regard all of these cases as supporting the principle stated by Barry J in Francis Longmore v Stedman. [53] The appellant also contended that if the parties had reached agreement that there was to be a lease in the same terms as the expired lease which included the preamble which in part is: … and the lessee accepts this lease for the term described in Item 6 of the Schedule and at the rent and payable in the manner set out in Item 7. [54] Item 6 contains the terms of the lease and renewals and Item 7 contains the annual rent and manner of payment. The obligation to pay the rent is set out in cl 2.1 which is an essential term of the lease pursuant to cl 4.1.1. [55] As I understand the submission, if the parties had reached an agreement that there would be a lease in those terms, the agreement could not be concluded until agreement had been reached about the amount of the rent and the additional matters of rent review and the rent-free period. [56] That submission is rejected. As has been mentioned, this form of lease specifically provides that only the obligation to pay rent is an

essential term and not the amount of the rent or the two other matters. The preamble to the expired lease does not establish [page 39] that agreement as to rent is an essential requirement for a lease. At all events, as has been mentioned, the parties had reached agreement about the rent. [57] Mr Jenner referred to observations of Dixon J in Turner & Ors v York Motors Pty Ltd (1951) 85 CLR 55 as authority for the proposition that agreement as to rent is essential for a lease. I do not understand these observations to support such a proposition. The Court was concerned with the legal consequences of the circumstances in which defendants entered into possession of land. Dixon J said as follows (at 68): The one position is an entry provisionally and without any agreement but pending negotiations for an agreement or a lease with a common intention that notwithstanding payment of compensation for the use of the land described as rent the occupier shall remain nothing but a tenant at will until a formal lease is executed or an agreement reached. The other position is that the parties agree on the main terms of a tenancy including rent and agree also that the transaction shall be carried out by a proper conveyancing document and that in the meantime the tenant shall hold in pursuance of the agreement. In the latter case at common law payment of rent established a tenancy of a periodical character (usually from year to year) coming to an end automatically with the effluxion of the agreed term: see Moore v Dimond (1929) 43 CLR 105, particularly at 112, 113. As can be seen these observations do not establish that reservation of rent is an essential requirement of a lease. Compare Street v Mountford [1985] AC 809 at 818–19, which was explained

in Ashburn Anstalt v Arnold [1989] Ch 1 (CA) on the basis that Lord Templeman could not have meant ‘no rent, no lease’ for this would be inconsistent with the Law of Property Act 1925 (UK) s 205(1)(xxvii): see Property Law Act 1958 (Vic) s 18(1). See also All ER Rev 1988 pp 176 and 185 (Ashburn Anstalt was said by the House of Lords in Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 to be wrongly decided, but with respect to other aspects of the Court of Appeal decision, see [1.5]). Accordingly, the Court of Appeal held that the reservation of a rent was not necessary for the creation of a tenancy; similarly, AG Securities v Vaughan [1990] 1 AC 417 (CA) (though reversed by the House of Lords on another point: [1990] 1 AC 417). See also the judgment of Windeyer J in Radaich v Smith (1959) 101 CLR 209 at 222, which was expressly approved in Street v Mountford at 826–7. The parties sometimes stipulate for a nominal rent in the mistaken belief that reservation of rent is essential to the creation of a tenancy. For an example of a peppercorn rent, see R v Registrar of Titles; Ex parte Commonwealth (1915) 20 CLR 379: see further, Chapter 11. Where money is payable under the lease a court will not infer that it is payable as rent if there is a more likely explanation: see Bostock v Bryant [1990] 2 EGLR 101 (where the payment of gas and electricity bills was characterised as a part payment of expenses). Rack rent is a rent of the full value of the holding, or near it: 2 Bl Com 43; Re Sawyer & Withall [1919] 2 Ch 333. Rack rent is to be contrasted with ground rent. The latter expression is sometimes loosely used. The context in which it appears may materially affect its meaning: Stewart v Alliston (1815) 1 Mer 26; 35 ER 587. Ground [page 40] rent is the rent at which land is let for the purpose of improvement by building. It carries with it the reversionary interest in buildings erected after the date of the lease. ‘The term ground rent is well understood and has a definite meaning; it is the sum paid by the owner or builder of houses for the use of land to build on, and is therefore much under what it lets for when it has been built on’: Bartlett v Salmon (1855) 43 ER 1142 at 1145.

Leaseholds as personalty [1.13] By an exception to the general rule that rights over land are regarded as real property, leasehold interests are held to be personal estate. Personal estate consists in part of chattels real and in part of chattels personal. Leaseholds are chattels real. As they are interests in land, they bear many analogies to realty: Union Bank of Australia v Harrison Jones & Devlin Ltd (1910) 11 CLR 492 at 526; Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 299. Although leasehold interests are personal property, the rule in Flureau v Thornhill (1776) 2 Wm Bl 1078; 96 ER 635; [1775–1802] All ER Rep 91, limiting the damages recoverable from a vendor of real estate who has acted in good faith and is unable to make title, applies to agreements to grant a lease; see [13.4].

Tenancy by attornment [1.14] At common law an assignment of the reversion could not be completed without an attornment by the tenant (Doe d Wright v Smith (1838) 112 ER 835 at 837), the attornment being the act of the tenant putting one person in the place of another as his or her landlord: Cornish v Searell (1828) 8 B & C 471; 108 ER 1118; Gerard Estates Pty Ltd v McGregor [1967] 2 NSWR 292; 86 WN (Pt 1) (NSW) 156. This situation has been remedied by statute; by s 151 of the Property Law Act 1958 (Vic) (and equivalents), the conveyance of the reversion is valid without any attornment of the lessee: see, for example, Conveyancing Act 1919 (NSW) s 125. As to whether this section applies to an oral lease, see Gerard Estates Pty Ltd v McGregor. The tenant may safely continue to pay rent to the previous landlord until he or she is given notice of the assignment. Notice of the assignment need not be given before bringing ejectment for breach of covenant other than a covenant to pay rent: Shaltock v Harston (1875) 1 CPD 106. The section has no application where at the time of the assignment the tenant has no interest in the land, as where he or she had assigned: Allcocks v Moorhouse (1882) 9 QBD 366. For the position where the assignee relies on s 79 of the Supreme Court Act 1986

(Vic) (see [19.3] for corresponding provisions in other states), and the halfyear’s rent accrued fell due partly before and partly after the date of the assignment, see Rickett v Green [1910] 1 KB 253. [page 41] In modern times the expression ‘attornment’ has come to be commonly used, not in the special sense of the acknowledgment of the tenant which was formerly necessary to complete an assignment of the reversion, but in the more general sense of any acknowledgment or admission of the existence of a tenancy. Attornment clauses, whereby the mortgagor or purchaser ‘attorns and becomes’ tenant to the mortgagee or vendor, are almost invariably inserted into mortgages and ‘terms’ contracts of sale of land. As to the position of a mortgagor in occupation of mortgaged land, whether under an attornment clause in the mortgage or otherwise, see Tyler, Young and Croft, Fisher and Lightwood’s Law of Mortgage, (3rd ed, 2014) [12.6]–[12.12]. At attornment clause operates to create a tenancy by estoppel if the facts are such that a true tenancy is not created: Cole on Ejectment, pp 219, 230; Partridge v McIntosh & Sons Ltd (1933) 49 CLR 453; Ex parte Jackson; Re Australasian Catholic Assurance Co Ltd (1941) 41 SR (NSW) 285; ANZ Bank Ltd v Strelitz [1964] NSWR 401; Regent Oil Co Ltd v J A Gregory (Hatch End) Ltd [1965] 2 All ER 90; [1966] Ch 402; City Mutual Life Assurance Society Ltd v Lance Creek Meat Works Pty Ltd [1976] VR 1; and see Tyler, Young and Croft, Fisher and Lightwood’s Law of Mortgage, (3rd ed, 2014) [12.11]. See further [20.8] and Cam & Sons Pty Ltd v Commissioner of Land Tax [1965] ALR 852; 1 12 CLR 139.

Leases created by estoppel [1.15] In addition to tenancies by estoppel created by an attornment clause in the circumstances referred to in the preceding paragraph ([1.14]), the courts have recognised the creation of leases by estoppel in other circumstances. In Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133 the

tenant took a lease for 28 years with an option for a further 14. In the belief that it had an option the tenant installed a lift at substantial cost but, unknown to both the landlord and the tenant, the option was void, not having been registered under the Land Charges Act 1925 (UK). It was held that the landlord was estopped from asserting the invalidity of the option on the basis of representations made as to the validity of the option and also because the landlord had encouraged one of the plaintiffs to incur expenditure and alter their position irrevocably by taking additional premises on the basis that the option was valid. The tenant in Andrews v Colonial Mutual Life Assurance Society Ltd [1982] 2 NZLR 556 had expended a substantial sum of money in refurbishing and recarpeting the premises. The work took place with the landlord’s knowledge and agreement, the landlord having confirmed that they were prepared to offer the tenant a new lease for three or six years. It was held that the plaintiffs were entitled to succeed on the basis of proprietary estoppel. After reviewing the authorities (see 567–9) Barker J said (at 570): Whether or not the defendant considered there to be a contract for a new lease, its conduct throughout was such as to give rise to an action based on proprietary estoppel. [page 42] When the defendant learned of the extensive refurbishing to be undertaken by the plaintiffs, the defendant should have concluded that the plaintiffs were undertaking this work in the belief that they were to have a new lease on the terms of the letter. Yet, the defendant did nothing to disabuse them of that view. Similar issues arose in the High Court in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. In summary, the facts were that Mr and Mrs Maher purchased land in the commercial centre of Nowra for commercial development. A substantial brick building and two dilapidated buildings stood on the land. After negotiations with Waltons it was agreed that the Mahers would replace those buildings with a new building, designed specifically to suit Waltons’ requirements, which would be leased to Waltons for six years

with a six year option. Waltons’ solicitors sent an agreement for lease and draft lease to the Mahers’ solicitors on 21 October 1983. Some amendments were required, which were incorporated in fresh documents which were prepared by Waltons’ solicitors. On 11 November the Mahers’ solicitors forwarded the executed documents ‘by way of exchange’ to Waltons’ solicitors. Demolition work then began on the new brick portion of the old building. In early January building work, in accordance with the plans and specifications approved by Waltons, commenced. On 19 January, when the building work was approximately 40% completed, Waltons’ solicitors informed the Mahers’ solicitors that Waltons did not intend to proceed, the contracts not having been exchanged. The appeal was dismissed, the High Court being of the view that Waltons was estopped from denying that a concluded agreement existed. Mason CJ and Wilson J, in a joint judgment, said (at 407–8): The second factor of importance is that the respondents executed the counterpart deed and it was forwarded to the appellant’s solicitor on 11 November. The assumption on which the respondents acted thereafter was that completion of the necessary exchange was a formality. The next their solicitor heard from the appellant was a letter from its solicitors dated 19 January, informing him that the appellant did not intend to proceed with the matter. It had known, at least since 10 December, that costly work was proceeding on the site. It seems to us, in the light of these considerations, that the appellant was under an obligation to communicate with the respondents within a reasonable time after receiving the executed counterpart deed and certainly when it learnt on 10 December that demolition was proceeding. It had to choose whether to complete the contract or to warn the respondents that it had not yet decided upon the course it would take. It was not entitled simply to retain the counterpart deed executed by the respondents and do nothing: cf Thompson [Thompson v Palmer (1933) 49 CLR 507 at 547]; Olsson v Dyson (1969) 120 CLR 365 at 376. The appellant’s inaction, in all the circumstances, constituted clear encouragement or inducement to the respondents to continue to act on the basis of the assumption which they had made. It was unconscionable for it, knowing that the respondents were exposing themselves to detriment by acting on the basis of a false

assumption, to adopt a course of inaction which encouraged them in the course they had adopted. To express the point in the language of promissory estoppel the appellant is estopped in all the circumstances from retreating from its implied promise to complete the contract. [page 43] An estoppel may arise in a variety of ways. An equitable estoppel may arise in favour of a subtenant in the event of forfeiture of the head lease in circumstances where s 146(4) of the English Law of Property Act 1925 (or its equivalents) cannot be called in aid: see Hammersmith and Fulham London Borough Council v Top Shop Centres Ltd [1990] Ch 237 at 252 and following (and see the discussion of the dictum of Denning MR in Moorgate Mercantile Co Ltd v Twitching’s [1976] QB 225 at 241–2; compare Walton’s Stores); discussed at All ER Rev 1989 pp 194–6; see also [19.6]. In S and E Promotions v Tobin Bros (1994) 122 ALR 637 an estoppel was established with respect to the exercise of an option under a sublease; see also Zacharia v Ajay Investments Pty Ltd and Chan (1982) ANZ ConvR 651 (SC(SA), Mitchell J); Osborne Park Co-operative Society Ltd v Wilden Pty Ltd (1989) 2 WAR 77; and Gobblers Inc Pty Ltd v Stevens (1993) 6 BPR 97,488 at 13,596–7 (per Cohen J); cf Scandi International Pty Ltd v Varga Group Investment (No 8) Pty Ltd [2001] NSWSC 21 where a tenant was estopped from denying that a monthly tenancy arose on the same conditions as the original lease as a result of the exercise of an option to renew the lease where the landlord believed that the option was being exercised by the original tenant, whereas the true position was that a receiver and manager had been appointed to the original tenant. However, in circumstances where a lease is agreed subject to certain preconditions, an estoppel does not arise merely because the tenant is let into possession where the preconditions are not met: Budmore Pty Ltd v Johnson (1993) 6 BPR 97,486 at 13,580 (per Young J). As to leases binding on mortgagors in favour of their tenants and binding on mortgagees in favour of mortgagors and tenants, see Tyler, Young and Croft, Fisher and Lightwood’s Law of Mortgage, (3rd ed, 2014) [12.17], [12.20]; and as to feeding the estoppel with respect to leases granted by purchaser-mortgagors after contract but before completion,

see Abbey National Building Society v Cann [1991] 1 AC 56 (HL); and Tyler, Young and Croft, Fisher and Lightwood’s Law of Mortgage, (3rd ed, 2014) [12.21]. For a case where forfeiture was allowed where the power to determine the lease by re-entry was not activated, but the landlord acted on an impression created by the tenant’s conduct that it was abandoning the premises thereby raising an equitable estoppel, see Leda Commercial Properties v DHK Retailers Pty Ltd (1992) 111 FLR 81 (SC(ACT)). In any event, even if a representation as to the granting of a lease can be established, reliance on that representation for the purposes of an estoppel must be shown to be reasonable: see Venza Corp Pty Ltd v Allsop (SC(NSW), Bryson J, 4 December 1996, unreported (BC9605912)). Where an estoppel by representation is being relied upon it is, of course, necessary to establish that a relevant representation was actually made: see Wykes v Samilk Pty Ltd (1998) NSW ConvR ¶55-871 (CA). Further, any representation must ordinarily be clear and unambiguous if it is to be effective in founding an estoppel: see Kellow-Falkiner Motors Pty Ltd v Nimorakiotakis (2000) V ConvR ¶54-620 (CA) at 64,444, [41] (Charles JA, with whom Ormiston and Buchanan JJA agreed); and see Fush v McKendrick & Co Pty Ltd (2004) V ConvR [page 44] ¶54-686 (CA). See also the discussion of the authorities in this respect by the High Court in Crown Melbourne Ltd v Comopolitan Hotel (Vic) Pty Ltd (2016) 90 ALJR 770. Various aspects of the judgments of the High Court in Waltons Stores have been discussed and applied in subsequent decisions of courts. In particular the High Court itself has moved further towards unification of the principles of common law and equitable estoppel in Foran v Wight (1989) 168 CLR 385 and Commonwealth v Verwayen (1990) 170 CLR 394. Without attempting any detailed discussion of these principles and developments it is useful to refer to a few decisions in which they have been applied or explained in relation to, or with particular relevance, to leases and agreements to lease.

In S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd (1994) 122 ALR 637 the Full Federal Court (Neaves, Gummow and Higgins JJ) applied Waltons Stores with respect to the need to exercise any option under a proposed new sublease. In a joint judgment the principles established by Waltons Stores and subsequent decisions were considered (at 652–4): In approaching the matter in this way, the primary judge sought to apply the six matters which are stated in the judgment of Brennan J in Waltons Stores, supra, at CLR 428–9; ALR 542, as necessary to establish an equitable estoppel. Brennan J there said: In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. In Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 at 615–16, Priestly JA spoke as follows of the above passage in Brennan J’s judgment: It may be that those tests do not represent the view of a majority of the court, but even if not, they are useful as a check; if the facts of the case did not measure up to those tests, it would be necessary to think thoroughly about why not. If they do comply with those tests, that is some reason for thinking my conclusion right.

See also Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97 at 116–17; 111 ALR 649, per Hill J. For his part, in Austotel (at 610) Priestley JA offered the more succinct proposition: For equitable estoppel to operate there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed or an interest granted to the plaintiff [page 45] by the defendant, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable. The circumstance that Priestly JA dissented from the result on that appeal does not detract from the cogency of this passage. It will be noted that, like Priestly JA, Brennan J had been speaking of ‘an equitable estoppel’. The argument on the present appeal proceeded on that footing. In Waltons Stores Brennan J, together with Mason CJ, Wilson J and Gaudron J, had accepted the proposition that, whilst they share many ideas, common law and equitable estoppel are distinct doctrines; see the analysis of the High Court judgments by the New South Wales Court of Appeal in Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 at 472, 476; and see also Commonwealth v Verwayen (1990) 95 ALR 321; 170 CLR 394 at 422 (Brennan J), 454 (Dawson J), 499–501 (McHugh J), and Roebuck v Mungovin [1994] 1 All ER 568 at 574–5 (Lord Browne-Wilkinson). This is important in the present case. The price of equitable relief may be the imposition of terms upon the successful party, on the footing that because it seeks equity it must be prepared to do equity. There is no comparable common law precept of such wide application. As already indicated, Tobin Brothers accepts that the imposition of such terms may be involved in the reformulation of orders in its favour.

It also should be noted that in her judgment in Waltons Stores Gaudron J indicated some qualification to proposition (4) in the formulation by Brennan J. That proposition is that the defendant knew or intended that the plaintiff would act or abstain from acting in reliance on the assumption or expectation induced by the defendant. It was applied by Young J in Milchas Investments Pty Ltd v Larkin (1989) 96 FLR 464 at 474. However, in Waltons Stores Gaudron J held (164 CLR at 462; 76 ALR at 567) that the appellant was not estopped, in relation to the respondents’ assumption that contracts had been exchanged, on the basis that it knew of and failed to correct this mistaken assumption. But her Honour then said that this was not the end of the matter. Gaudron J continued: Whatever the actual knowledge or belief of the appellant as to the state of mind of the respondents once it came to the appellant’s knowledge that demolition work had commenced it ought then to have been aware that there was a real possibility or likelihood that the respondents had commenced work in the reasonable expectation that exchange would take place. That being so, the appellant came under a duty to inform the respondents that the situation had materially changed. An expectation by the respondents that exchange would take place was eminently reasonable in the light of all the facts known to them … Against that background the appellant must have known that an expectation of exchange was reasonable on the facts known to the respondents, but was not reasonable in light of the appellant’s changed attitude. At that stage prudence was required. It was not forthcoming. Where imprudence is ‘a proximate cause of the other party’s adopting and acting upon the faith of the assumption’ (emphasis added), the justice of an estoppel is made out: Thompson v Palmer (1933) 49 CLR 507 at 547; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 676. That test requires no knowledge as to the other’s state of mind. Nor does the test require that imprudence should have caused the assumption to be made. It is sufficient that

[page 46] imprudence is ‘a proximate cause’ of the assumption being adopted and acted upon. Whatever may have caused the respondents to make their assumption that exchange had taken place, the evidence clearly supports the inference that the failure of the appellant to inform them that its attitude had changed was a proximate cause of their adopting and acting upon the faith of that assumption. Indeed such a finding is implicit in the finding of Kearney J that ‘by the [appellant’s] action in doing nothing to complete the exchange [respondents] were lulled into a sense of false security’. The references by Gaudron J to the two earlier High Court decisions are, of course, to the well-known judgments of Dixon J. In addition, in their joint judgment in Waltons Stores (164 CLR at 406–7; 76 ALR at 525) Mason CJ and Wilson J describe the ‘crucial question’ as being whether the appellant was ‘entitled to stand by in silence when it must have known that the respondents were proceeding on the assumption that they had an agreement and that completion of the exchange was a formality’. Their Honours concluded that the appellant was under an obligation to communicate with the respondents within a reasonable time after receiving the executed counterpart lease, bearing in mind several factors. One was that after they had executed the counterpart lease and it had been forwarded to the solicitors for the appellant, the respondents had acted on the assumption that completion of the necessary exchange of counterparts was a formality. Deane J also held that the appeal should be dismissed, even if the evidence had established no more than that by its conduct the appellant had led the respondents mistakenly to assume that exchange of contracts would take place as a matter of course and that the appellant, knowing of the falsity of the assumption, had remained silent when aware that the respondents were acting to their detriment by acting upon it (164 CLR at 446).

Further, as to proposition (5) in the formulation by Brennan J, it is sufficient for the representee to establish that reliance caused it to lose a real chance of avoiding the detriment: Austral Standard Cables Pty Ltd v Walker Nominees Pty Ltd (1992) 26 NSWLR 524 at 540, per Handley JA. His Honour supported that proposition by citation of Foran v Wight (1989) 88 ALR 413; 168 CLR 385 at 413, 431–2, 436–7, 454. The contrary was not suggested. See also Kellow-Falkiner Motors Pty Ltd v Nimorakiotakis (2000) V ConvR ¶54-620 (CA) and Commonwealth of Australia v Clarke [1994] 2 VR 333 (FC) for a comprehensive review of the authorities on promissory estoppel. In Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 (CA) (Starr v Barbaro (1986) 4 BPR 9137 at first instance) the Waltons Stores principles as formulated by Priestley JA (at 472), with whom the other members of the court agreed, were applied in circumstances where owners of land had executed a memorandum of lease (which was not registrable by reason of s 327AA of the Local Government Act 1919 (NSW)) and subsequently entered into a contract to sell the whole of the land, including the leased land. At first instance and on appeal the plaintiff occupier was successful. As to the effect of the estoppel, it appears from the judgment of Priestley JA that an equitable interest arose at the time of the circumstances giving rise to the unconscionable conduct [page 47] (see at 475). It is also clear that his Honour was referring to an equitable interest (properly so called) and not to a mere personal equity: see Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265. It followed that the priority of the third party purchaser was to be determined on the basis of the rules dealing with competing equitable interests according to the rule in Rice v Rice (1853) 2 Drew 73; 61 ER 646. The priorities position in Silovi was liable to be affected by the operation of s 43A of the Real Property Act 1900 (NSW). However, the purchaser was unable to take advantage of its protection and thereby obtain priority by registration as the purchaser had notice of the prior unregistered interest of the plaintiff at settlement. As to the effect of an equitable estoppel Leopold says (above, at 54):

If an equitable estoppel is made out, then the plaintiff actually has an equitable right, in the sense that the court of equity will grant to the plaintiff substantive relief in whatever form seems, in the court’s discretion, to be the most appropriate in all the circumstances [In Waltons Brennan J said that the successful plaintiff has ‘an equity created by estoppel’; (1988) 164 CLR at 416; 76 ALR at 532; see also Inwards v Baker [1965] 2 QB 29 at 38]. For example, the plaintiff in Corpers (No 664) Pty Ltd v NZI Securities Australia Ltd [(1989) NSW ConvR ¶55-475 (58,450)] obtained an order for damages under s 68 of the Supreme Court Act 1970 (NSW) (which substantially re-enacts s 2 of Lord Cairns’ Act). In terms of consequences it should be kept in mind that the equitable interest produced by the unconscionable conduct upon which the estoppel is founded exists before any relief (which may be described as consequential relief in this sense) is granted by a court of equity: see Silovi at 475 (per Priestley JA). As Dorney comments (op cit, 39): ‘The Court of Equity need only make a declaration as to the representee’s entitlement which gives effect to that equitable interest: Dillwyn v Llewellyn [(1862) 4 De GF & J 517]; Ramsden v Dyson [(1866) LR 1 HL 129].’ The principles of proprietary estoppel were considered in Hollier v Australian Maritime safety Authority (1998) V ConvR ¶54-581 where Sundberg J said (at 66,948): If the owner of land requests or allows another to incur expenditure or otherwise prejudice himself under an expectation created or encouraged by the owner that he will obtain an interest in the land, that raises an equity in the other which will be satisfied in whatever is the most appropriate way. The best known of the cases illustrating this proposition are Dillwyn v Llewelyn (1862) 4 De G F & J 517, Ramsden v Dyson (1866) LR 1 HL 129 and Plimmer v Wellington Corporation (1884) 9 App Cas 699. The nature of proprietary estoppel, and its relationship with other estoppels, was examined by the High Court in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 403–404 per Mason CJ and Wilson J and at 416–417 and 419–420 per Brennan J. There are three conditions which a claimant must satisfy. The first is

that he believed that he would obtain an interest in the land. The second is that that belief must have been encouraged by the owner, either actively or passively. The third is that the claimant must have acted in reliance on the encouragement, so that were the owner to insist on his strict legal rights, the claimant would suffer detriment. The extent of the equity is to have made good the expectation which the owner has encouraged. If the equity is [page 48] established, effect is given to it in whatever is the most appropriate way: Waltons Stores at 419. Sometimes it will be sufficient to dismiss the owner’s action to enforce his legal rights. In other cases the owner may be restrained from asserting his rights. The claimant’s reward may be a lien on the property for his expenditure or for the value of any improvements: Raffaele v Raffaele [1962] WAR 238. In some cases the appropriate remedy is the grant of the interest the claimant believed he would obtain, such as a perpetual easement or a licence to use the land as his home for as long as he desires. See, for example, Ward v Kirkland [1967] Ch 194 and Inwards v Baker [1965] 2 QB 29. Or it may appear that the claimant has already had sufficient satisfaction for his expenditure, and so is entitled to no relief: Attorney-General v Baliol College, Oxford (1744) 9 Mod 407 at 412. The range of relief that may be granted is expounded in Snell’s Equity 29th ed (1990) 577–578. See also Waltons Stores at 419. The plaintiff’s case failed in Hollier because it was found on the evidence that he was aware that AMSA was not in a position to commit itself to longterm occupancy. Following on from these statements of Sundberg J in Hollier, it is helpful to note that Brennan J made particular reference in Waltons Stores to the distinction between a contract and an equity created by estoppel; a distinction which explains and emphasises that the consequence of establishing an equitable estoppel is only to attract the ‘minimum equity’, that is equitable relief only insofar as is necessary to assuage the consequences flowing from the

unconscionable conduct of the representor as a result of failing to meet the expectations created. Thus Brennan J said (at (1988) 164 CLR 425): … A contractual obligation is created by the agreement of the parties; an equity created by estoppel may be imposed irrespective of any agreement by the party bound. A contractual obligation must be supported by consideration; an equity created by estoppel need not be supported by what is, strictly speaking, consideration. The measure of a contractual obligation depends on the terms of the contract and the circumstances to which it applies; the measure of an equity created by estoppel varies according to what is necessary to prevent detriment resulting from unconscionable conduct. And see Redder Than Red Tomato Co Pty Ltd v AB & SM Rawlings Pty Ltd [1999] SASC 30; BC9900143 (per Burley M); and Vella v Wah Lei Investments (Aust) Pty Ltd (2004) 12 BPR 22,671 at 22,676–7, [169] (per Campbell J), and see below. In a similar vein, and with reference to the promissory and proprietary estoppel dichotomy, Nettle J said in Crown Melbourne Ltd v Comopolitan Hotel (Vic) Pty Ltd (2016) 90 ALJR 770 at 810–11; 333 ALR 384 at 434–5, [217]–[218]: [217] The foundational principle on which equitable estoppel in all its forms is grounded is that equity will not permit an unjust or unconscionable departure by a party from an assumption or expectation of fact or law, present or future, which that party has caused another party to adopt for the purpose of their legal relations.258 Consequently, the notion that there is or should be some a priori distinction between the degree of objective certainty required to found a promissory estoppel compared to a proprietary estoppel runs counter to principle. The idea of “one overarching doctrine of estoppel rather than a series of independent rules”259 may not yet have “won general [page 49] acceptance”.260 But, in as much as the recognised categories of equitable estoppel are instances of the operation of the more general

foundational principle, the determination of whether it is unconscionable for the charged party to depart from an assumption or expectation created in the mind of the claimant must always depend on the particular facts and circumstances of the case. The recognised applications of established categories of promissory estoppel are not necessarily exhaustive of the cases in which equity will intervene261 and, even if they were, it would not follow that because it has been found in the context of one relationship that a designated level of certainty was required, the same degree of certainty would be necessary in the context of a different relationship or in different circumstances. [218] Finally on this aspect of the matter, as Warren CJ emphasised, since the object of equitable estoppel in all its forms is to prevent the detriment which a representee would suffer if the representor were unjustly or unconscionably to depart from the assumption or expectation created in the mind of the representee, relief should be accorded only to the extent of the minimum content of the assumed state of affairs from which it would be unjust or unconscionable for the representor to depart.262 Frequently, that may not extend to compelling the representor to fulfil the assumption or expectation as opposed to compensating the representee for the detriment suffered.263 Hence, although an equivocal or objectively ambiguous representation would be incapable of forming a binding contract, it may yet found a promissory estoppel. The equivocal or objectively ambiguous nature of the representation is but one, albeit important, consideration in the determination of whether and to what extent the assumption or expectation is fairly and reasonably to be attributed to the representation and thus the measure of relief which is to be accorded.264 (Footnotes omitted) Agreements or arrangements ‘subject to contract’ (which probably translates in this context as ‘subject to preparation and signing of a formal lease’) may not give rise to an estoppel. In the ordinary course of events a party is not bound by an agreement ‘subject to contract’: see A-G of Hong Kong v Humphreys Estate (Queens Garden) Ltd [1987] 1 AC 114; and Masters v Cameron (1954) 91 CLR 353; and see [4.1]. It follows that prior to exchange of

contracts for the sale of land or the signing (and possible exchange or ‘delivery’) of the lease each party will be free to withdraw as there is then no intention to create legal relations (see Austotel Pty Ltd v Franklins Selfserve Pty Ltd) and in the absence of a further ingredient there is no basis for an estoppel. The further ingredient is unconscionability in the event that a party decides not to proceed with the transaction. Waltons Stores and other cases discussed have provided some examples of conduct on the part of the party seeking to withdraw that is to be regarded as unconscionable and giving rose to an estoppel — in Waltons Stores treating the ‘exchange’ as a mere formality, not affecting a pre-existing agreement. Similarly if the parties to an ‘agreement’ deliberately do not reach agreement on an essential term of that agreement, the inference may be drawn that they did not intend to be bound by any agreement and hence no estoppel will arise: see Austotel Pty Ltd v Franklins Selfserve Pty Ltd at 16 NSWLR at 525 (per Kirby P) and at 620 (per Rogers AJA). As the cases indicate, an essential element in a claim based on estoppel is reliance, together with consequential detriment: see Waipara Pty Ltd v Police Association (1998) V ConvR [page 50] ¶54-583 (CA). It followed in the circumstances of that case that there was no reliance on pre-lease negotiations where the parties had entered into a written arrangement subject to a lease ‘approved by both parties’ and subsequently proceeded to negotiate the terms of a formal lease which they had entered into (and see M Redfern, ‘Estoppel and Masters v Cameron’ (1998) 6 APLJ 278). An estoppel may also arise with respect to the assignment of a lease in circumstances which, in effect, amount to the creation of a new lease by estoppel in favour of the person actually in possession of premises, though that person may be styled as an ‘assignee’. This situation arose in Vella v Wah Lei Investments (Aust) Pty Ltd (2004) 12 BPR 22,671 at 22,676–7, where Campbell J said: [167] The caselaw recognises that, where land has been leased to one person, and another person has entered into possession of the land, the

lessor, and the lessee, can both become estopped from denying that there has been an effective assignment of the lease: Rodenhurst Estates, Ltd v W H Barnes, Ltd [1936] 2 All ER 3; Tichborne v Weir (1892) 67 LT 735; Official Trustee of Charity Lands v Ferriman Trust, Ltd [1937] 3 All ER 85; Williams v Heales (1874) LR 9 CP 177; Brown & Root Technology Ltd v Sun Alliance and London Assurance Co Ltd [2001] Ch 733. Precisely what estoppels exist depends in part upon precisely what representations have been made between the landlord and the person claiming to be an assignee. Mere payment of rent, and taking of possession, is not enough to amount to a representation by a person in possession that he was assignee of the lease (as opposed to a sub-lessee), and hence is not enough to establish that the person in possession is liable to the landlord on the covenants of the lease, although it is enough to establish an estoppel against the person in possession from denying the title of the landlord: Official Trustee of Charity Lands v Ferriman Trust, Ltd [1937] 3 All ER 85. There can be circumstances where a person in possession cannot deny that he is a tenant, and therefore bound to pay rent to the landlord, but can deny that he is bound by all the covenants of the original lease: Tichborne v Weir (1892) 67 LT 735. However, if the representation by a person in possession is that he is tenant on the terms of a particular lease, then he can be estopped from denying that he is liable to pay damages for breach of covenants, such as to repair, contained in the lease: Williams v Heales (1874) LR 9 CP 177. If someone requests a landowner to consent to an assignment of a lease to him, and thereafter goes into possession and pays rent, that is a representation of being in possession on the terms of the lease: Official Trustee of Charity Lands v Ferriman Trust, Ltd [1937] 3 All ER 85 at 90–91, explaining Rodenhurst Estates, Ltd v W H Barnes, Ltd [1936] 2 All ER 3. [168] Whether an estoppel exists also depends upon whether there has been any detrimental reliance on a representation. Thus, even if a person in possession has represented that it is an assignee of a lease, before that person is estopped from denying that there has been an effective assignment of the lease, and that it is bound by all the covenants of the lease, it is necessary for the landlord to have acted to

its detriment on the basis of that representation: Brown & Root Technology Ltd v Sun Alliance and London Assurance Co Ltd [2001] Ch 733. Conversely, even if a landlord has represented that there has been an assignment of a lease to a particular person, before the landlord is estopped from denying that there has been an effective assignment of the lease, it is necessary for that particular person to have acted to his detriment on the basis of that representation. [page 51] [169] Further, the fact that, as at one point of time, two such parties are estopped from denying that there has been an effective assignment of lease does not necessarily mean that that estoppel will endure indefinitely into the future. If one party, who has encouraged another to act on the basis that a particular state of affairs exists, gives notice that that state of affairs should no longer be regarded as existing then, unless the other party has already irretrievably prejudiced himself by acting on the assumption that that state of affairs exists, the estoppel will cease to bind, either immediately or after the other party has been given reasonable notice. This is the result of the principle that the relief which is appropriate to give effect to an estoppel is the minimum relief which would prevent the injustice arising by the person estopped departing from the assumption or expectation which has been induced: The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 413, 429, 442–3, 487 and 501; Giumelli v Giumelli (1999) 196 CLR 101 at 113–14 and 119; Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475 at 516–518. In the event it was found that no estoppel of this kind was established and that the occupant of the premises operated the tavern business conducted on the premises under an implied licence: and see Vella v Wah Lei Investments (Aust) Pty Ltd [2006] NSWCA 18, where the appeal from this decision was dismissed. On appeal reliance was placed on conventional estoppel. See [8] and [26] of the judgment of Hunt AJA on appeal. Conventional estoppel requires an assumption of fact which one party has

caused another to adopt or accept for the purpose of their legal relations. It is essential for the party claiming the benefit of such an estoppel to establish that ‘the departure from the assumption would turn the action or inaction [by the claimant] into a detrimental change of position’: see Novell Holdings Pty Ltd v Adjo Pty Ltd (SC(WA), Full Court, 5 February 1999, unreported (BC9900193)), referring to Dixon J in Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674–6. The requirements of a common assumption or conventional estoppel, in light of recent authorities, are encapsulated in the following paragraph in the judgment of Hunt AJA (with whom Mason P and Bryson JA agreed) in Vella v Wah Lei Investments (Aust) Pty Ltd [2006] NSWCA 18: [23] The essential requirements of an estoppel by common assumption were discussed in MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39, where Hodgson JA said (at para [72]): However, I do not accept Mr Newlinds’ submission that reliance and detriment are not essential for the existence of conventional estoppel. The passage from Con-Stan [Con-Stan Industries v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226] refers inter alia to Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641, in which Dixon J makes it clear that the relevant principle is that ‘the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations’ (at 674), this involving both (1) action such that the party relying on the estoppel would suffer a detriment if the other party [page 52] were afterwards allowed to set up rights inconsistent with the assumption; and also (2) that the party against whom the estoppel is asserted ‘must have played such a part in the adoption of the assumption that it would be unfair or unjust if

he were left free to ignore it’ (at 675). See also Thompson v Palmer (1933) 49 CLR 507 at 547. In my opinion, common law estoppel by representation or conventional estoppel still requires that the party relying on the estoppel must have ‘placed himself in a position of significant disadvantage if departure from the assumption be permitted’: see Verwayen [Commonwealth v Verwayen (1990) 170 CLR 394] at 444. And see Easts Van Villages Pty Ltd v Minister Administering the National Parks and Wildlife Act [2001] NSWSC 559; (2001) Aust Contract R ¶90-132 (per Mathews AJ) at [72] and following, particularly [78]. A tenancy at will may arise where a prospective tenant enters into possession and pays rent while negotiations for the terms of the lease proceed: see Javad v Aqil [1991] 1 WLR 1007 (CA); Wykes v Samilk Pty Ltd (1998) NSW ConvR ¶55-871 (CA); and Kellow-Falkiner Motors Pty Ltd v Nimorakiotakis (2000) V ConvR ¶54-620 (CA); and see [2.16]. A lease which is unregistered in accordance with Torrens land registration legislation may, nevertheless, create an equitable term of years and tenure by estoppel: see National Australia Bank Ltd v Golden Sea Dragon (Hobart) Pty Ltd (1992) 4 Tas R 250. In general it is the exceptional case that a lease, or other agreement, arises on the basis of an estoppel; the cases indicate that it is not to be taken to be the norm: see Milchas Investments Pty Ltd v Larkin (1989) ATPR 50,431 at 50,438 (per Young J); Capital Market Brokers Pty Ltd v Hamelyn UPC Ltd (SC(NSW), Young J, 2 May 1989, unreported); and Gobblers Inc Pty Ltd v Stevens. It is not the purpose of this work to examine estoppel in any detail. The reader is referred to the leading texts: Heydon, Leeming and Turner, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, 5th ed, and Finn (ed), Essays in Equity. See also Prindable, ‘An Examination of the Process of Negotiating and Contracting Commercial Leases in Light of the Remarks of Deane J in Waltons Stores (Interstate) Ltd v Maher’ (1994) Qld Law Soc J 221; Dorney, ‘The New Estoppel’ (1991) 7 Aust Bar Rev 19; and Leopold, ‘Estoppel: A Practical Appraisal of Recent Developments’ (1991) 7 Aust Bar Rev 47.

Abolition of doctrine of interesse termini [1.16] By the doctrine of interesse termini, actual entry had to be made by the lessee in order to perfect his or her title. Until entry, he or she had no estate in the land, but only a right of entry which was called interest in the term, or interesse termini: Joyner v Weeks [1891] 2 QB 31 at 47; [1891–4] All ER Rep Ext 1938. The doctrine did not apply to a lease for life: Ecclesiastical Commissioners for England v Treemer [1893] 1 Ch 166. [page 53] An interesse termini was assignable, and on death passed to the lessee’s personal representative: Doe v Walker (1826) 5 B & C 111. Until the lease was perfected by entry, the lessee could not maintain an action for trespass, for this action is based on actual possession: Ryan v Clarke (1849) 14 QB 65 at 73; he or she might, however, bring ejectment: Doe d Parsley v Day (1842) 2 QB 147, or maintain an action against his or her landlord for not putting him or her in possession: Wallis v Hands [1893] 2 Ch 75; [1891–4] All ER Rep 719. As to this doctrine generally, see (1960) 24 Conveyancer 462. The doctrine has been abolished by statute: see Conveyancing Act 1919 (NSW) s 120A(1); Property Law Act 1974 (Qld) s 102(1); Law of Property Act 1936 (SA) s 24B; Property Law Act 1958 (Vic) s 149(1); Property Law Act 1969 (WA) s 74(1).

[page 55]

2 Kinds of Tenancy The five kinds of tenancy [2.1] If the tenancy at sufferance is regarded as a tenancy, there are five principal kinds of tenancy: (1) tenancy for a fixed term; (2) tenancy from year to year; (3) periodic tenancy for less than a year; (4) tenancy at will; (5) tenancy at sufferance. For a recent discussion of various kinds of tenancy and their incidents, see Hammersmith and Fulham London Borough Council v Monk [1992] 1 AC 478 (HL); see also Moore v Dimond (1929) 43 CLR 105; and Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 (HL). In addition to the five kinds of tenancy listed there remains the possibility of a lease for life in jurisdictions where there is no equivalent of the English Law of Property Act 1925 s 149(6): see Greco v Swinburne Ltd [1991] 1 VR 304; see also Prudential Assurance Co Ltd v London Residuary Body, above; and see [1.5]. It is proposed to say something as to the nature and incidents of each of these in turn.

Tenancy for a fixed term — certainty [2.2] This is a lease for a fixed period of time and the period must be fixed with certainty: see [1.5]. The term will often be several years, but it may be any fixed period, for example, six months: Box v Attfield (1886) 12 VLR 574, or even six days. In Thorn v Martin (1960) 77 WN (NSW) 301, the lease was for a term of one week, a circumstance adverted to by Maguire J in Ex parte Monters Pty Ltd; Re Webster [1960] [page 56] NSWR 521; [1961] SR (NSW) 354. A lease for a ‘term of years’ (which must be for two years at least: Land Settlement Association Ltd v Carr [1944] 2 All ER 126; [1944] 1 KB 657; compare Re Land at Liss [1971] Ch 986), is an example of a lease for a fixed term, but parties may fix any period they please, provided that they comply with the rule which requires that a certain period be fixed: see Street v Mountford [1985] AC 809 at 818–19; Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 at 390–1 and 394–6; and see [1.5]. A tenancy to continue during the time the tenant, a schoolmaster, was stationed in a particular town: Morison v Edmiston [1907] VLR 191, and a lease to endure for the duration of the war: Anthony v Stanton [1943] VLR 179; Lace v Chandler [1944] 1 All ER 305; [1944] KB 368, have been held to be bad for uncertainty, and these are but illustrations of the general rule that the term must be definite: Binions v Evans [1972] Ch 359 at 366. A lease for life may be a lease for a fixed term within the meaning of a statute: Borambil Pty Ltd v O’Carroll (1974) 3 ALR 391; and see Greco v Swinburne Ltd [1991] 1 VR 304; and Australian Maritime Safety Authority v Quirk (1998) NSW ConvR ¶55-858. As to the general requirement that the relevant terms of the lease must be capable of being ascertained with certainty, see [1.5]. The commencement of the term must be certain, but it is sufficient if the commencement becomes certain by the time when the lease is to take effect in possession, and accordingly the term may be made to commence upon the happening of an uncertain event: Bishop of Bath’s case (1605) 6 Co Rep 34b; 77 ER 303; Clowes v Hughes (1870) LR 5 Exch 160; Terry v Tindale (1882) 3

LR NSW 444; Brilliant v Michaels [1945] 1 All ER 121 at 127–8. By a lease dated 1 August 1945 the plaintiff leased premises to the defendant for a term of three years ‘computed from’ 1 July 1945, at an annual rent payable by quarterly instalments, the first payment to be made on 1 July 1945, and payments thereafter to be made on the first days of October, January, April and July in each year. It was held that the date of expiry of the lease was 30 June 1948: Box v Lock (1948) 65 WN (NSW) 291. The expression ‘for the term of 12 months from’ was considered in Forster v Jododex Pty Ltd (1972) 127 CLR 421.

Automatic expiration [2.3] A lease for a fixed term expires automatically at the end of that term: Cobb v Stokes (1807) 8 East 358; 103 ER 380; see also [16.5]. Similarly, a lease will automatically come to an end upon the happening of an event upon which it is expressed to determine: Right d Flower v Darby (1786) 99 ER 1029 at 1030–1; Swift v Macbean [1942] 1 KB 375. It may have been agreed between the parties, however, that the tenancy is to continue after the expiration of the term until a stated notice is given, and in such a case the tenancy will continue until it is determined by the requisite notice: Brown v Trumper (1858) 26 Beav 11; 53 ER 800. It must be emphasised that, unless the parties have agreed that a tenancy on certain terms is to exist after the expiration of the fixed period, the lease will automatically come to an end upon the [page 57] expiration of the fixed period; in other words, a lease for a fixed term is determined by effluxion of time without the need for any notice to quit or other act. If a lessee for a fixed term remains in possession after the expiration of that term, he or she may, unless there is something in the facts warranting the conclusion that a new tenancy has been created, be ejected without notice; the mistaken view that notice to quit is required in such circumstances

is thought to have its origin in the former predominance of ‘prescribed’, or rent controlled, premises and the operation of legislation such as Pt V of the Landlord and Tenant Act 1958 (Vic) (provisions repealed as from 1 September 2012 — see LL&T Comparative Table), whereby ‘lessee’ was defined as including an overholding tenant: s 43(2), and notice to quit on a prescribed ground was a prerequisite to the recovery of possession from a lessee: s 82. Similarly, it is thought that the erroneous notion prevalent in some quarters that the giving of notice to quit is the usual means of forfeiting a lease for breach of covenant has the same origin.

Provision for notice — overholding clauses [2.4] Reference has already been made to the fact that, while ordinarily a lease for a fixed term automatically comes to an end upon the expiration of that term, the parties may agree that the lease is to continue until determined by notice. So a lease for a fixed term may itself provide that, if notice is not given to determine the lease at the end of the term the tenancy shall continue as a yearly tenancy: Brown v Trumper (1858) 26 Beav 11; 53 ER 800. In such a case the provision for the continuance of the lessee’s interest or the creation of some new interest in the lessee is contained in the lease itself. This must be distinguished from the case where a lessee holds over after the expiration of the lease and pays rent and there is attributed to the parties the intention of creating a new tenancy, often a tenancy from year to year (but note the New South Wales, Queensland and Western Australian legislation referred to in [2.14]): see, for example, Christopher v Wright [1949] VLR 145 at 147; but where the requisite intention is lacking the result may be a tenancy at will, or a mere licence, see [2.15]. The case of the overholding clause must also be considered. While an overholding clause may be drawn in terms which show an intention that a new tenancy shall arise upon the expiration of the original term, it will ordinarily be in a form which does not speak on the question whether a new tenancy is to arise after the expiration of the term and which is intended only to secure that, if a new tenancy is created by the conduct of the parties, that new tenancy shall be determinable by a short period of notice (often one month). See Hamilton v Porta [1958] VR 247 at 250–1, and contrast Ex parte Monters Pty Ltd; Re Webster [1960] NSWR 521; [1961] SR (NSW)

354; see also Di Torio v Zollo [1977] VR 547. The decision at first instance and on appeal in Guss v Ajax Technology Centre Pty Ltd (2000) V ConvR ¶54-612 (CA) illustrates the importance of properly recording any agreement to vary overholding provisions previously agreed, whether contained in the lease terms or in a further agreement. [page 58] In that case the alleged agreement to vary overholding provisions contained in the lease was found to be no more than ‘an agreement to negotiate’, the tenant desiring to achieve a reduced rent for the overholding. Additionally, occupation after the end of the lease term must be referable to the original lease so that occupation of further premises together with the premises which were the subject of the lease cannot be subject to the overholding provisions of that lease: see Marquette v Doherty [2002] NSWSC 580. As the Marquette case demonstrates, the proper characterisation of the nature of any occupancy, as under the overholding provisions of the original lease or otherwise, may be significant in relation to the liability of guarantors of the tenant’s obligations under the lease or any overholding, depending upon the terms of the guarantee. As to the terms on which an overholding tenant holds the premises, see [7.13]; see also [2.9]–[2.11].

Fixed terms and notices to quit [2.5] A lease for a fixed term will not ordinarily be determined by notice to quit. The parties may agree, however, that it shall be so terminable, and such agreement is effective. It is well settled that the incorporation into a lease for a fixed term of a right to terminate the lease on giving certain notice is not bad for repugnancy. See for example, Porter v Williams (1914) 14 SR (NSW) 83. The lease may provide for the giving of what may perhaps be described as notice to quit in either of two types of case; on the question of terminology see Foa on Landlord and Tenant, 8th ed, p 586 note (c). In the first place, the

lease may confer upon the landlord, or the tenant, or both, an option to determine it before the expiration of the agreed term. This right may be made exercisable only at a specified time, for example, at the end of the fifth year of the term, or in a specified event, for example, if the landlord requires the premises for a certain purpose. Occasionally, the right to determine is given without its being limited either by the fixing of a time at which it is to be exercised or the naming of events upon which it is to arise. It is usual to require the party exercising his or her option to determine the lease to give a certain period of notice to the other. In the cases so far discussed the right to determine the lease has not been connected with any default by the other party. A well drawn lease for a fixed term will confer upon the lessor the right to determine the lease in the event of a breach of covenant on the part of the lessee and in certain other events, ordinarily being events which reflect upon the solvency of the lessee. This provision usually empowers the lessor to determine the lease by re-entry, and re-entry does not require the giving of any notice to quit. Occasionally, a poorly drawn lease is found which empowers the lessor, in the case of a breach of covenant or the occurrence of one of the other specified events, [page 59] not to re-enter, but to give notice to quit of a short period specified in the lease; to require the giving of some specified period of notice as opposed to mere re-entry has nothing to commend it from the point of view of the lessor. It may be observed in passing that, just as leases occasionally stipulate for the giving of notice to quit instead of re-entry as the means of effecting a forfeiture, so tenancy agreements creating periodic tenancies occasionally provide not only for the giving of notice to quit, but also for determination without notice by way of forfeiture; see [17.1]. The provision occasionally found in leases whereby the giving of a period of notice instead of re-entry is stipulated for as a means of forfeiting the lease must not be confused with the reference frequently made in well drawn leases to the giving where appropriate of the notice required by the Conveyancing Act 1919 (NSW) s 129; Property Law Act 1974 (Qld) s 124; Landlord and Tenant Act 1936 (SA)

s 10; Conveyancing and Law of Property Act 1884 (Tas) s 15; Property Law Act 1958 (Vic) s 146; Property Law Act 1969 (WA) s 81.

Ejectment of overholding tenant [2.6] Where one who has been a lessee of premises and whose term has come to an end remains in possession against the will of his or her landlord, that person is a trespasser: Fry v Metzelaar [1945] VLR 65 at 67. Where such a person remains in possession without either the assent or dissent of his or her landlord, that person is a tenant at sufferance (Fry v Metzelaar, above, at 67). The distinction is without importance so far as the recovery of possession is concerned, for even if the former lessee has remained in possession without the dissent of the lessor and so become a tenant at sufferance, he or she may be ejected without any previous notice to quit or demand of possession: Natural Gas & Oil Corporation Ltd v Byrne (1951) 68 WN (NSW) 207 at 213. Except in the case where the lease itself provides for the creation of some further tenancy, the lessor is accordingly, where the lessee remains in possession after his or her term has come to an end, entitled to recover possession without notice to quit or demand of possession, unless there has been some subsequent creation of a further tenancy either by express agreement or by conduct from which an agreement is to be inferred; see also [2.4].

Character of tenancy from year to year [2.7] A tenancy from year to year, also known as a yearly tenancy, is merely an example of a periodic tenancy. In the case of a periodic tenancy, there is not a new tenancy with the beginning of each recurring period, but a tenancy which continues indefinitely until termination: Amad v Grant (1947) 84 CLR 327 at 336; [1947] ALR 191; Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47; Gleeson v Richey [1959] VR 258 at 261; Bernays v Prosser [1963] 2 All ER 321; [1963] [page 60]

2 QB 592; see also Moore v Dimond (1929) 43 CLR 105 at 113 and 116–8; Dockrill v Cavanagh (1944) 45 SR (NSW) 78 at 80; Chan v Cresdon (1989) 168 CLR 242 at 248; Javad v Aqil [1991] 1 WLR 1007; Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 at 392 and following; and Take Harvest Ltd v Liu [1993] AC 552 (PC).

Creation and determination of yearly tenancies [2.8] The creation (see also [2.9]) and termination of yearly tenancies was considered by the High Court in Chan v Cresdon (1989) 168 CLR 242 at 248 as follows: It is well settled that entry into occupation followed by payment of rent under an agreement for a future lease brings into existence a common law tenancy from year to year, so long as the payment of rent is referable to a yearly tenancy, as where it is for an aliquot part of a year: Dockrill v Cavanagh [(1944) 45 SR (NSW) 78 at 80]. Such a tenancy determines on the expiration of the lease agreed upon and it is on the terms and conditions of the agreement so far as they are consistent with a tenancy from year to year (Moore v Dimond [(1929) 43 CLR 105 at 113, 118–122]; York House Pty Ltd v Federal Commissioner of Taxation [(1930) 43 CLR 427 at 436]; Progressive Mailing House Pty Ltd v Tabali Pty Ltd [(1985) 157 CLR 17 at 25–26]). At common law the tenancy from year to year was liable to termination by notice to quit before the expiration of the term contracted for: Moore v Dimond [(1929) 43 CLR at 113]. A similar tenancy from year to year arises from entry into occupation and payment of rent under an informal lease, including an unregistered lease of land under the provisions of the Act: Moore v Dimond [(1929) 43 CLR at 113–114]; Carberry v Gardiner [(1936) 36 SR (NSW) 559 at 570]. This tenancy is an implied or imputed tenancy. As Patteson J noted in Doe d Thomson v Amey [(1840) 12 Ad & E 476 at 480 [113 ER 892 at 893–894]]: ‘[T]he terms upon which the tenant holds are in truth a conclusion of law from the facts of the case, and the terms of the articles of agreement.’ In Moore v Dimond [(1929) 43 CLR at 114],

Knox CJ, Rich and Dixon JJ cited this statement with evident approval. The judgment of Knox CJ, Rich and Dixon JJ in Moore v Dimond, above, examined the basis for the creation of a yearly tenancy by ‘entry into occupation and payment of rent under an informal lease’, and indicated the extent of the relevant presumptions of law: see also Javad v Aqil [1991] 1 WLR 1007 (CA). Their Honours said, at 43 CLR 116–17: In Preston’s edition of Watkins’ Principles of Conveyancing (1820) he says: ‘All leases made generally and not for any particular period, are, by construction of law, leases from year to year.’ This was recognized by Cozens-Hardy J in Low v Adams [(1901) 2 Ch 598 at 601]: ‘A general occupation of land was, as long ago as the Year-Books, held to be an occupation from year to year.’ In principle there appears to be no reason why the circumstances that the rent paid under an agreement for a term of five years is weekly should displace this presumption in favour of the yearly tenancy. The doctrine which justifies reference to the period of the rent in order to ascertain the term no doubt is that the rent is a compensation for the land, and the parties have so understood it. A quarterly payment thus implies a yearly tenancy because it is part of the compensation for a year’s holding. When the parties agree for a five years’ holding with weekly [page 61] payments of the compensatory rent, their intention is not that each week’s rent shall represent a distinct and therefore terminable holding of a week. The weekly rent is part of the compensation for the entire period. Where the intention of the parties is to hold for a greater duration than a yearly tenancy would give them, and this intention fails because of its want of appropriate expression or of formal demise, the presumption or assumption that a general holding is from year to year supplies the term. It should, perhaps, be added that the conclusion which has been

thus reached appears to be supported by the views adopted in four of the Australian States in relation to the implication of tenancies from year to year. (See Ex parte Murphy [(1856) 2 Legge (NSW) 976]; Bloomfield v Bloomfield [(1893) 9 NSW WN 188]; Bank of Victoria v M’Hutchison [(1881) 7 VLR (L) 452]; Box v Attfield [(1886) 12 VLR 574; 8 ALT 45]; Morison v Edmiston [(1907) VLR 191; 26 ALT 148]; Beattie v Fine [(1925) VLR 363; 47 ALT 19]; Marshall v Coupon Furnishing Co [(1916) SR (Q) 120 at 125]; Styles & Co v Richardson [(1915) 17 WALR 81].) It follows that at law, whatever may be the position in equity, the respondent would be considered a tenant from year to year. As the last sentence of this passage indicates the position at law and the position in equity may be quite different. An agreement for lease may have produced a lease for a fixed term in equity (see [4.1] and following) though at law it is a yearly tenancy: see also 43 CLR 112, and [2.15]. As to the creation of yearly tenancies, see also [2.9]–[2.12]. A landlord (and, it follows, a tenant) cannot covenant not to give a notice to quit at all, though a covenant not to give a notice for a fixed, certain, period of time is valid: Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 at 393–5; and see [1.5]. See also Take Harvest Ltd v Liu [1993] AC 552; and [1.6]. A tenancy from year to year differs from the lesser periodic tenancies in that the period of notice required for its determination is not the recurring period (a year), but only half a year: Landale v Menzies (1909) 16 ALR 217; 9 CLR 89 at 101. The notice must expire at the end of a year of the tenancy, but this requirement is regarded as satisfied, not only in cases where the tenant is in terms required to quit on the last day of the year, but also in cases where he or she is required to quit on the anniversary of the commencement of the year, provided that in the latter case no language is used which will not permit the notice to be construed as requiring the tenant to quit at the first moment of the anniversary. See Sidebotham v Holland [1895] 1 QB 378; Bathavon Rural District Council v Carlile [1958] 1 All ER 801; [1958] 1 QB 461, and the other decisions cited in [20.5] in relation to the lesser periodic tenancies. Section 32(2) of the Landlord and Tenant Act 1958 (provisions repealed as from 1

September 2012 — see LL&T Comparative Table), whereby in the case of the summary proceedings to recover possession in a magistrates’ court under Pt IV of the Act a notice to quit shall not (unless otherwise expressly agreed) be invalid by reason only of the fact that it expires on a day other than the day of expiry of a recurring period, has no application to tenancies from year to year; the provision applies only to periodic tenancies the [page 62] recurring period of which does not exceed one month: see Conveyancing Act 1919 (NSW) s 127; Landlord and Tenant Act 1899 (NSW) s 22A; Property Law Act 1974 (Qld) ss 129, 131, 133(2); Property Law Act 1969 (WA) s 72.

Yearly tenancy presumed where tenant holds over [2.9] A lessee who remains in possession after the expiration of a lease for a term without the assent or dissent of the lessor is a tenant at sufferance: Natural Gas & Oil Corporation v Byrne (1951) 68 WN (NSW) 207: and see Longrigg, Burrough and Trounson v Smith [1979] 2 EGLR 42 (CA). In certain circumstances the lessee will, once rent is accepted by the lessor, become a tenant from year to year (but see the New South Wales, Queensland and Western Australian legislation referred to in [2.14]). Unless the parties have agreed otherwise, the notice required to determine a yearly tenancy is half-ayear’s notice expiring at the end of a year of the tenancy: Landale v Menzies (1909) 16 ALR 217; 9 CLR 89 at 101. For these reasons, an overholding clause is inserted in well drawn leases. In Hamilton v Porta [1958] VR 247 the lease contained a clause in the following terms: Provided always that no overholding … shall be construed as creating a tenancy from year to year, but that notwithstanding the failure of the tenant to vacate the premises upon expiration of the paid term or of the landlord to require possession at such expiration or payment and receipt of rent by the landlord and tenant respectively the tenant’s

occupancy or possession of the leased premises after the expiration of the said term may be determined by either the landlord or the tenant at any time upon one month’s written notice … Herring CJ stressed that this clause did not speak on the question whether a new tenancy was to be inferred after the expiration of the term. That was a question which could be determined only by reference to the intention of the parties, with regard to which no help could be derived from the terms of the clause. The effect of the clause was merely that in the event of an overholding after the expiration of the term from which a new tenancy was to be inferred, such new tenancy would, in the absence of any agreement to the contrary between the parties, be terminable on a month’s notice on either side. The possibility of the existence of a yearly tenancy is in practice often overlooked in proceedings for the recovery of possession from a tenant who has held over after the expiration of a lease for a fixed term; see also [2.4].

Holding over after short terms [2.10] The authorities conflict on the question when a yearly tenancy is created as the result of the tenant’s holding over. It is clear that the doctrine of a presumed yearly tenancy applies not only where the term was for a period of years, but also where it was for a year certain: Bank of Victoria v M’Hutchison (1881) 7 VLR (L) 452; Box v Attfield (1886) 12 VLR 574; Adler v Blackman [1952] 2 All ER 41; [1953] 1 QB 146. [page 63] In Box v Attfield the Full Court expressed the opinion that it was ‘sufficiently plain’ that the doctrine applied where the tenant held over after the expiration of a term of six months. In Solomon v Bray (1873) 7 SALR 128 the Full Court of South Australia held that to make a tenant holding over and paying rent a tenant from year to year, the original letting must have been for a year or an aliquot part of a year, or at a yearly rent; therefore, a letting for a period of 18 months at a weekly rental was not a letting from year to year, and where a

tenant held over beyond such period, and continued to pay rent as before, he or she was merely a weekly tenant. Cussen J in Beattie v Fine [1925] VLR 363 at 374, spoke of a yearly tenancy’s being implied ‘where a tenancy extends over one year or a number of years’: see also [2.4].

Holding over where weekly rent reserved [2.11] The second question which arises is whether a yearly tenancy is to be presumed only if the rent is paid by reference to a year, or at least an aliquot part of a year. Here the authorities undoubtedly conflict. In Adler v Blackman [1952] 2 All ER 41; [1953] 1 QB 146 the Court of Appeal held that it was essential to the presumption of a yearly tenancy that the rent should be expressed as an annual sum, though it might be payable half yearly, quarterly, monthly or even weekly. There was no presumption of a yearly tenancy where the rent was stated as a rent per week and not as an instalment of the rent fixed for a year. In that case the Court of Appeal applied the dictum of Maugham J in Ladies’ Hosiery & Underwear Ltd v Parker [1930] 1 Ch 304 at 328; [1929] All ER Rep 667, and disapproved the decision of Macnaghten J in Covered Markets Ltd v Green [1947] 2 All ER 140. Similarly, in Ball & Huntley v Laffin (1876) 10 SALR 6 at 12, Stow J said that whether the tenancy was created by entry under a void lease or an agreement for a lease, or by holding over after the expiration of a tenancy, and by payment of rent, in either case the question was whether the rent was paid with reference to a yearly holding, and that where the payment was a weekly one the tenancy ought not to be held to be from year to year. In Rowston v Sydney County Council (1954) 92 CLR 605 at 616, the Full High Court, in what would seem to be a mere dictum, said: As between the claimant council and the defendant appellant the rent has always been payable as a weekly sum not apparently referable to a year. If no more appeared it would be impossible at common law to regard the tenancy as one from year to year … But it must be borne in mind that the rent reserved by the reddendum in the lease was expressed as a yearly rent of £443 and so in proportion for any less period than a year payable by weekly payments of £8 l0s 5d to be

made in advance. If the £8 l0s 5d is considered as nothing but an instalment of a rent calculated as a yearly rent then the inference would at least be open, if not inevitable, that a tenancy from year to year was implied between the claimant council and the defendant. It is to be noted that £8 l0s 5d a week is not a true instalment of the rent of £443. A rent at the rate of £8 l0s 5d [page 64] a week calculated for 365 days would give a yearly rent of £444 6s. That perhaps is not a very important consideration. The South Australian Full Court has held that to make a tenant holding over and paying rent a tenant from year to year the original letting must have been for a year or an aliquot part of a year, or at a yearly rent. Therefore, a letting for a period of 18 months at a weekly rental, the tenant to pay rates and taxes, is not a letting from year to year, and where a tenant holds over beyond such period, and continues to pay rent as before, he or she is merely a weekly tenant: Solomon v Bray (1873) 8 SALR 128. In other cases it has also been said that for a yearly tenancy to be presumed the rent must be paid by reference to a year or an aliquot part of a year. See Dennis & Copley v Eddie [1952] VLR 92 at 99 where Sholl J referred to the question whether there must be payment of rent by reference to a year or an aliquot part of a year without expressing any opinion upon it. Such cases occur where a tenant overholds. In such cases payment or acknowledgment of rent constitutes evidence of the establishment of a tenancy, and the fact that the rent is paid by reference to a year, or aliquot part of a year, affords evidence of a tenancy from year to year: Moore v Dimond [1930] ALR 341, 43 CLR 105 at 114 (per Knox CJ, Rich and Dixon JJ). Similarly, in Re Weigall & Dawes’ Lease [1942] VLR 49, a case of a lease for three years at an annual rent payable monthly, O’Bryan J said, at 54, that the obligation imposed by a covenant in the lease did not rebut ‘the inference which would otherwise be drawn from mere continuance in possession and payment of rent by reference to an aliquot part of a year, viz, that the tenancy intended was one from year to year …’.

In Beattie v Fine [1925] VLR 363, Cussen J said, at 374: After a consideration of all these cases it is sufficient for me to say that where a tenancy extends over one year or a number of years, the agreement providing that the rent shall be payable in relation to some period which (though there is no word like ‘year’ or ‘annual’ used directly in connexion with the rent) is in fact an aliquot part of a year eg, monthly or quarterly and, the tenancy having expired, the tenant holds over with the consent of the landlord, and rent is paid and received in respect of such periods, the implication of law is, unless there is something to rebut it, that the tenant holds over as a tenant from year to year … I might be justified in stating the rule in wider terms, such as those used in some of the cases, but this is enough here. This judgment was referred to by Kitto J in Turner v York Motors Pty Ltd (1951) 85 CLR 55 at 93; [1951] ALR 1054. In the same case Dixon CJ said, at CLR 66: There is little resemblance between such a case and the very many instances in which a person has been let into, or has retained, possession of land without any express contract, and the question is whether he is a tenant, and if so, for a term of what duration. Such cases occur when a tenant overholds; when a tenant for life has granted a lease in excess of his power and dies before its determination, and the remainderman allows the lessee to retain possession; when a mortgagor has granted a lease without statutory or other power; and when the terms of entry are too vague or uncertain to be [page 65] ascertainable. In such cases payment or acknowledgment of rent constitutes evidence of the establishment of a tenancy, and the fact that the rent is paid by reference to a year, or aliquot part of a year, affords evidence of a tenancy from year to year. The existence and duration of the tenancy in such a case were, however, questions of fact.

Webb J at CLR 86 referred to the creation of a tenancy from year to year where a tenant held over and paid rent: see further Permanent Custodian Trustees v Payne [1964] NSWR 1098; Queensland Television Ltd v Federal Commissioner of Taxation (1969) 1 ATR 419; 119 CLR 167 at 175. If a yearly tenancy will be implied only where rent is paid by reference to a year or an aliquot part of a year, then, since a week is not an aliquot part of a year (Dennis & Copley v Eddie, above), there will be no presumption of a tenancy from year to year where a lessee holds over and continues to pay rent after the expiration of a lease reserving a weekly rent. In Edwards v Horrigan; Ex parte Horrigan [1923] St R Qd 8, the tenant held over after the expiration of a void lease for five years at the rent of 18s per week. It was held by the Full Court of Queensland that, though a tenancy from year to year could arise by implication of law only in cases where the rent was payable with reference to a yearly tenancy, yet in the instant case the rent was clearly payable with reference to such a tenancy because the agreement provided clearly that the weekly rent was to be payable throughout the five years. In Bank of Victoria v M’Hutchison (1881) 7 VLR (L) 452, there was a lease for one year at a rent of 30s per week. The tenant held over after the expiration of the term at a weekly rent, which was raised to 40s shortly after the expiration of a second year. The court held, rejecting the argument that the rent must be payable for periods referable to a year or an aliquot part of a year, that the justices were at liberty to infer a tenancy from year to year. Five years later the Full Court held, following Bank of Victoria v M’Hutchison, above, that if, after the expiration of a tenancy for a year certain at a weekly rent, the tenant is allowed to remain in possession, still paying the same rent, the presumption is that the continuing tenancy is a yearly one: Box v Attfield (1886) 12 VLR 574. It may be noted that in Moore v Dimond (1929) 43 CLR 105; [1930] ALR 341, Isaacs J at CLR 122, expressly approves Bank of Victoria v M’Hutchison and Box v Attfield, and Knox CJ, Rich and Dixon JJ, at CLR 117, refer to the decisions with apparent approval. Note also, however, that a passage in the joint judgment, at CLR 114, suggests that the presumption of a yearly tenancy arises only where the rent is paid by reference to a year or an aliquot part of a year. In Fitzgerald v Button (1890) 16 VLR 561, a tenant for life granted a lease for 21 years at a yearly rent payable weekly. Upon his death the

representatives of the remainderman, not knowing the terms of the lease, and being refused inspection thereof, wrote to the tenant asking him to pay the rent weekly to them, and he continued thereafter to do so for a considerable time, until the representatives gave him a week’s notice to quit. Holroyd J dismissed an action for the recovery of the premises, on the ground that, assuming the lease to have terminated upon the death of the tenant for life, the receipt [page 66] of rent by the representatives had constituted a tenancy from year to year between them and the lessee. This decision was affirmed by the Full Court: (1891) 17 VLR 52. It should be noted that in this case the lease reserved a yearly rent of £234, payable by weekly payments of £4 l0s. Accordingly, even on the view of the law taken by the Court of Appeal, a yearly tenancy might have been presumed; for in Adler v Blackman, it was recognised that, provided that an annual rent is reserved, the fact that the rent is payable weekly will not prevent the presumption of a yearly tenancy from arising. The case of Fitzgerald v Button is therefore of little assistance for present purposes although one observation made during the argument at first instance is of interest. Counsel for the defendant made the following submission: Upon the death of the tenant for life that lease terminated, but the tenancy was allowed to continue upon the same terms precisely. It must therefore be presumed to be a tenancy from year to year, the fact of the rent being payable weekly not affecting the presumption: Bank of Victoria v M’Hutchison, followed Box v Attfield, which also shows that the same presumption applies where the lease was originally for an aliquot part of a year. This moved Holroyd J to remark, ‘I do not think there is the slightest doubt of those two cases being correct’: (1890) 16 VLR 561 at 563. The decisions of the Full Court in Bank of Victoria v M’Hutchison and Box v Attfield were cited to the Court of Appeal in Adler v Blackman [1952] 2 All ER 41; [1953] 1 QB 146 at 148. The Court of Appeal did not find it necessary to

consider its decision, and, indeed, did not even call upon counsel for the respondent. The result is that there is conflict between two decisions of the Full Court and a later decision of the Court of Appeal. This conflict was referred to by Adam J in Marshall v Burman (No 2) [1961] VR 161 at 166–7, his Honour finding it unnecessary to choose between the two lines of authority. For a discussion of the current status in Australia of decisions of the English (and other) courts, see (1987) 61 ALJ 263.

No presumption in absence of necessary intention [2.12] Where the restrictions of landlord and tenant rent control legislation, such as those which were imposed by Pt V of the Landlord and Tenant Act 1958 (Vic) apply (provisions repealed as from 1 September 2012 — see LL&T Comparative Table), if a landlord takes no steps to oust the tenant at the expiration of the term, but merely leaves the tenant in possession and accepts rents after the expiration of the term, no inference is to be drawn against the landlord that he or she intends to create a tenancy from year to year, for it cannot be said that he or she has voluntarily abstained from turning the tenant out: Morrison v Jacobs [1945] KB 577; Bowden v Rallison [1948] 1 All ER 841 at 843; Christopher v Wright [1949] VLR 145; Hamilton v Porta [1958] VR 247; Arnold v Mann (1957) 99 CLR 462; [1957] ALR 1207: and see Javad v Aqil [1991] 1 WLR 1007 at 1016–18 and Easts Van Villages Pty Ltd v Minister Administering the [page 67] National Parks and Wildlife Act [2001] NSWSC 559; (2001) Aust Contract R ¶90-132. These decisions apply where no more appears than that the lessor might or might not have left the lessee in possession, not because he or she intended to create a tenancy from year to year, but because the lessee’s rights were restricted by legislation; the decisions have no application where it appears that the landlord’s reason for leaving the lessee in possession was not

the existence of the statutory restrictions on eviction: Dennis & Copley v Eddie at 100; see also [2.4].

Periodic tenancy for less than a year [2.13] The tenancy from year to year, which is one example of a periodic tenancy, has been dealt with in [2.7]–[2.11]. Periodic tenancies are tenancies having a recurring period; they are tenancies for a series of indefinite periodic terms, and continue indefinitely until they are determined: Bootes v Staples & Co [1916] GLR 530; Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47; Fink v McIntosh [1946] VLR 290 at 292; see also [2.7]. However, a periodic tenancy must be determinable and it is not possible for either party to covenant not to give a notice to quit at all as the result is an uncertain lease term: see Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 at 393–5; and see [1.5]. Subject to express agreement, a periodic tenancy does not determine upon the tenant’s death: Youngmin v Heath [1974] 1 WLR 135. The periodic tenancies for less than a year which are commonly found are tenancies from quarter to quarter, tenancies from month to month and tenancies from week to week. A fortnightly tenancy may be created (Munro v Dare [1934] St R Qd 332; Foenander v Dabscheck [1954] VLR 38), as may a daily tenancy (Butcher v Bowen [1964] NSWR 36; 80 WN (NSW) 1520) and a half-yearly tenancy (Re Midland Railway Co’s Agreement [1970] 1 Ch 568, affirmed [1971] 2 WLR 625). Similarly, there may be a letting for successive periods of 364 days: Land Settlement Association v Carr [1944] 1 KB 657; [1944] 2 All ER 126; and see EWP Ltd v Moore [1992] QB 460 at 468–9. The parties may, it would seem, select any period they please. A monthly tenancy properly so called is a tenancy the recurring period of which is a calendar month, not a lunar month of 28 days: for example, the monthly periods might extend from the 25th day of one month to the 24th of the next month: Amad v Grant (1947) 74 CLR 327 at 348; [1947] ALR 191; Willshire v Dalton (1948) 65 WN (NSW) 54. A monthly tenancy in the accepted sense is not to be confused with a tenancy the recurring period of which is only 28 days. Such a tenancy may be described as a lunar monthly tenancy, or as a tenancy from four weeks to four weeks: Bootes v Staples & Co [1916] GLR 530, or as a four-weekly tenancy:

Lemon v Lardeur [1946] KB 613; [1946] 2 All ER 329; Rae v Clifford (1893) NZLR 257. In the case of a weekly tenancy it will often be found that the tenant pays rent every four weeks. Where a weekly rent is reserved, and the rent is by express or implied agreement payable every four weeks, the tenancy may be a mere weekly tenancy, or a [page 68] weekly tenancy determinable by four weeks’ notice, or a lunar monthly tenancy. The distinction between a weekly tenancy determinable by four weeks’ notice and a lunar monthly tenancy is a somewhat fine one. A weekly tenant who pays rent monthly in advance is entitled to a month’s notice: Cohen v Milner [1960] VR 499 at 503.

Kind of periodic tenancy dependent upon intention [2.14] What kind of periodic tendency has been created is a question to be answered by reference to the intention of the parties, and is one of fact: Fitzgerald v Button (1891) 17 VLR 52 at 53. If nothing more appears than that a weekly rent is paid, the inference is that the tenancy is a weekly tenancy: Adams v Cairns (1901) 85 LT 10; 17 TLR 662; Burnham v Carroll Musgrove Theatres Ltd (1928) 41 CLR 540 at 550. This is an example of a more general rule whereby the period by reference to which rent is fixed affords some evidence of the nature of the tenancy. Although entry into possession and payment of rent calculated by reference to a year, a month or a week are not legally conclusive of a yearly, monthly or weekly tenancy and amount only to evidence of such a tenancy, they are facts which according to circumstances may afford such evidence that any other conclusion would be unreasonable: Turner v York Motors Pty Ltd (1951) 85 CLR 55 at 66; [1951] ALR 1054; (per Dixon J); compare the remarks of Williams J at CLR 81, and Kitto J at CLR 90; Cohen v Milner [1960] VR 499; D’Silva v Lister House Development Ltd [1971] 1 Ch 17; [1970] 1 All ER 858.

New South Wales, Queensland and Western Australia have enacted a special provision to deal with the implication to be made where a lease is implied by payment of rent. Conveyancing Act 1919 (NSW) s 127(1) provides: No tenancy from year to year shall, after the commencement of this Act, be implied by payment of rent; if there is a tenancy, and no agreement as to its duration, then such tenancy shall be deemed to be a tenancy determinable at the will of either of the parties by one month’s notice in writing expiring at any time. Property Law Act 1974 (Qld) s 129(1) and Property Law Act 1969 (WA) s 71 are in similar terms. An example of the application of the Queensland provision is provided by Palmdale Insurance Ltd v Sprenger [1988] 1 Qd R 414; and see Leitz Leeholme Stud Pty Ltd v Robinson (1977) 2 NSWLR 544. There is also an equivalent provision in New Zealand (Property Law Act 2007 s 210) which is discussed in Beattie v Lyttleton Borough [1966] NZLR 65.

Tenancy at will [2.15] A tenancy at will, though called a tenancy, is unlike any other tenancy except a tenancy at sufferance, to which it is next of kin. The tenancy is terminable at the will of either party: see [2.19]. It has properly been described as a personal relation [page 69] between the landlord and his or her tenant; it is determined by the death of either of them or by any one of a variety of acts, even by an involuntary alienation, which would not affect the subsistence of any other tenancy. It is true that in some cases the relation of tenant at will may be expressly created by contract (Manfield & Sons Ltd v Botchin [1970] 2 QB 612; 3 All ER 143) but that is an exceptional case, and usually the tenancy at will is founded on an implied contract: Wheeler v Mercer [1957] AC 416 at 427; [1956] 3 All ER 63D. There are very many decisions on particular facts dealing with the

question whether a tenancy at will has been created by implied agreement. In practice it is at times necessary to make a choice between five possible relations. The relationship may be that only of licensor and licensee or there may have been created a tenancy at sufferance, a tenancy at will, one of the lesser periodic tenancies or a tenancy from year to year. The choice is often not an easy one. The fact that the rent was reserved at an annual rate was held to override the expressed intention of the parties to create a tenancy at will in Manfield v Botchin. Whether in modern times the tenancy at will has suffered a change in its purpose and function was considered in Heslop v Burns [1974] 1 WLR 1241 at 1253. A tenancy at will arises where there has been an agreement for a lease and an occupation without payment of rent which subsists until it is determined or the tenant pays rent, at which time he or she becomes a tenant from year to year: Moore v Dimond (1929) 43 CLR 105 at 112–13. Although the position in equity may be otherwise (see [4.1]) it seems that this represents the position at law. This is made clear in Moore v Dimond at 43 CLR 112 (per Knox CJ, Rich and Dixon JJ): As the agreement for a lease was not a demise, but an executory contract to grant a lease, it could not operate to create an interesse termini [as to which, see [1.16]] and, immediately upon the effluxion of the prior term, the respondent became at law (although of course not in equity) a tenant at will only. A tenancy at will may also arise as a result of a failure to comply with the statutory requirements as to writing applicable to leases: see [1.6], and see Wykes v Samilk Pty Ltd (1998) NSW ConvR ¶55-871 (CA). In Kellow-Falkiner Motors Pty Ltd v Nimorakiotakis (2000) V ConvR ¶54-620 the Victorian Court of Appeal found, in circumstances where the parties had been negotiating a formal lease but had not finally agreed its terms, that a tenancy at will only had arisen: see [2.16]. It is not necessarily inconsistent with a tenancy at will for an intending tenant holding at will to pay compensation to the owner for the use and occupation of the land: see the principle in this respect as stated by Dixon J in Turner v York Motors Pty Ltd (1951) 85 CLR 55 at 65–6, referred to in National Mutual Life Nominees Ltd v Travellers (NSW) Pty Ltd [1997] ANZ ConvR 249 (CA(NSW)); BC9604670 and in Leask v Farlmist Pty Ltd [1999] ANZ ConvR 566 (CA(NSW)) at 568; BC9806783 at 11 (per Sheller JA); and see Kellow-

Falkiner Motors Pty Ltd v Nimorakiotakis (2000) V ConvR ¶54-620; and also [2.16]. The judgment of Mahoney ACJ in National Mutual [page 70] Life Nominees Ltd v Travellers (NSW) Pty Ltd indicates that the courts may now be more likely to take a more liberal approach to the whole question of entitlement to compensation, rent or payments analogous to rent for use and occupation of land in light of the trend towards viewing leases more as contractual arrangements rather than proprietary interests (see BC9604670 at 3 and 4). In any event it was decided by all members of the court (the other members of which were Sheller and Clarke JJA) that no tenancy at will arose as between the landlord and the occupant as its possession was as a suboccupant from the tenant only. For a consideration of the authorities in relation to actions for use and occupation of land more generally, see Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd [2006] VSCA 6; BC200600331, discussed in Croft, Retail Leases Victoria, [130,075]. The position at law and in equity also diverged in Todburn Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 97,333. In that case an option to renew the lease had been exercised but no formal lease entered into as a result of its exercise. The tenant remained in possession, paying rent. It was held that a lease in equity for a term of three years was created in the same terms as though the lease had been formally renewed. The position at law was that the tenant had contractual rights and a tenancy at will determinable on one month’s notice. A tenancy at will may also be created as a result of a failure to obtain consent of the appropriate person as required by a statutory power of leasing or subleasing: see Palmdale Insurance Limited v Sprenger [1988] 1 Qd R 414; and also [15.16].

Entry during negotiations for a lease [2.16] Two frequently recurring situations are where one party is permitted

to go into occupation during negotiations for a lease and where a purchaser under a contract of sale is allowed to go into occupation prior to final settlement. In Turner v York Motors Pty Ltd (1951) 85 CLR 55 Dixon CJ said (at 65): The first of these five views [that the defendants may have been tenants at will only] is based upon the notion that the defendants went into possession of the premises provisionally pending agreement upon and the execution of a lease and that from beginning to end the defendants’ possession remained of this character so that no fixed or periodical term arose and the defendants held as tenants at will only. If an intending lessor lets the intending lessee into occupation of the premises in anticipation of an agreement for a lease or of a lease, simply so that he may temporarily occupy while they proceed to negotiate concerning the conditions upon which the intending tenant shall hold, it is of course true that in the meantime the intending lessee holds as a tenant at will only. It is not inconsistent with the intending lessee’s continuing so to hold that he pays the landowner some compensation for the use of the land and indeed if it is not intended that his occupation of the land shall be gratuitous the owner may recover from him upon a quantum valebat for use and occupation. But the reservation and receipt of a periodical rent as such affords strong evidence of the creation of a periodical term. ‘Where parties enter under a mere agreement for a future lease they [page 71] are tenants at will; and if rent is paid under the agreement, they become tenants from year to year, determinable on the execution of the lease contracted for, that being the primary contract’ per Littledale J in Hammerton v Stead (1824) 3 B & C 478 at 483; 107 ER 811 at 813. The case where the parties have not actually reached an agreement for a future lease depends upon the same principle, that is upon the implication from the receipt of a compensation for the use of

the land, but the inference to be drawn from the circumstances may be less certain. And see Leask v Farlmist Pty Ltd [1999] ANZ ConvR 566 at 568; BC9806783 at 11 where this passage was applied by Sheller JA, with whom the other members of the New South Wales Court of Appeal (Beazley JA and Fitzgerald AJA) agreed. Nevertheless, there is no presumption in this respect. The proper characterisation of the kind of tenancy created depends on the intention of the parties. Where parties are negotiating for a proposed lease and the prospective tenant is allowed into possession on payment of rent pending negotiations, the result may not be a periodic tenancy if this is merely an interim measure and lease terms are not agreed: see Javad v Aqil [1991] 1 WLR 1007 at 1012–13 where it was held that a tenancy at will was created. Similarly, in KellowFalkiner Motors Pty Ltd v Nimorakiotakis (2000) V ConvR ¶54-620 the Victorian Court of Appeal found, in circumstances where the parties had been negotiating a formal lease but had not finally agreed its terms, that a tenancy at will only had arisen; absent agreement and any equitable estoppel: as to the latter, see also [1.15] and, for a discussion of the decision and as to the extent to which statutory and general law requirements in relation to good faith in negotiations may be applicable, see (2000) 8 APLJ 172 (Redfern). The difficulty for a person in occupation of premises negotiating formal lease terms where there is no ‘preliminary’ agreement for lease applying between them is highlighted in the judgment of Charles JA (with whom Ormiston and Buchanan JJA agreed) in the Kellow-Falkiner Motors case (at 64,443–4): [39] In this Court, and also before the trial judge, Mr Porter placed great reliance upon the decision of the Court of Appeal in Javad v Aqil [[1991] 1 WLR 1007]. In that case the plaintiff entered into negotiations to lease his premises to the defendant, who had lost his place of business and needed to store stock elsewhere for his leather goods manufacturing business. The plaintiff allowed the defendant to move into possession on payment of £2,500, being one quarter’s rent in advance, even though the terms of the lease had not been agreed. Negotiations continued between the parties on the terms of the proposed lease and the defendant paid a further two quarters’ rent in

the interim. The parties were unable to agree on the terms of the lease and the plaintiff gave the defendant two weeks’ notice to quit. The defendant refused to leave, claiming that he had a periodic tenancy arising out of his payment of the rent and the plaintiff’s acceptance of it. [40] The plaintiff brought proceedings claiming possession, which was ordered to be given up by the trial judge. The defendant appealed. Dismissing the defendant’s appeal, Nicholls, LJ (with whom Mustill and Ralph Gibson, LJJ agreed) made the following observations [[1991] 1 WLR 1012–3], all of which bear on the present dispute — Where parties are negotiating the terms of a proposed lease, and the prospective tenant is let into possession or permitted to remain in possession in advance [page 72] of, and in anticipation of, terms being agreed, the fact that the parties have not yet agreed terms will be a factor to be taken into account in ascertaining their intention. It will often be a weighty factor. Frequently in such cases a sum called ‘rent’ is paid at once in accordance with the terms of the proposed lease; for example, quarterly in advance. But, depending on all the circumstances, parties are not to be supposed thereby to have agreed that the prospective tenant shall be a quarterly tenant. They cannot sensibly be taken to have agreed that he shall have a periodic tenancy, with all the consequences flowing from that at a time when they are still not agreed about the terms on which the prospective tenant shall have possession under the proposed lease, and when he has been permitted to go into possession or remain in possession merely as an interim measure in the expectation that all will be regulated and regularised in due course when terms are agreed and a formal lease granted.

Of course, when one party permits another to enter or remain upon his land on payment of a sum of money, and that other has no statutory entitlement to be there, almost inevitably there will be some consensual relationship between them. It may be no more than a licence determinable at any time, or a tenancy at will. But when and so long as such parties are in the throes of negotiating larger terms, caution must be exercised before inferring or imputing to the parties an intention to give to the occupant more than a limited interest, be it licence or tenancy. Otherwise the court would be in danger of inferring or imputing from conduct, such as payment of rent and the carrying out of repairs, whose explanation lies in the parties’ expectation that they will be able to reach agreement on the larger terms, an intention to grant a lesser interest, such as a periodic tenancy, which the parties never had in contemplation at all. See also Hagee Ltd v A B Erikson & Larson (A Firm) [[1976] QB 209 at 217]. [41] I agree, with respect, with the observations of Nicholls, LJ in Javad. In the context of an alleged tenancy by estoppel, this cautious approach is also consistent with the well-established proposition that for a representation to be effective in founding an estoppel it must ordinarily be clear and unambiguous: Low v Bouverie [[1891] 3 Ch 82]; Woodhouse A C Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [[1972] AC 741, per Lord Hailsham of St Marylebone LC at 755–6]; Olga Investments v Citipower Ltd [[1988] VR 485 at 499]. See further [2.17] in relation to entry under a contract of sale and, in relation to tenancies at will more generally, [2.15].

Entry under contract of sale [2.17] In the case of sales of land, the purchaser under a ‘cash’ contract is at times let into possession prior to settlement, and in such cases it is necessary to consider the particular facts in order to determine the nature of the

relationship; sometimes there is a special condition in the contract of sale; at other times the agreement rests upon correspondence and conversations between the respective solicitors for the parties. ‘Terms’ contracts of sale usually contain an attornment clause which expressly creates a periodic tenancy. Similarly, where the purchaser under a ‘cash’ contract is let into [page 73] possession pending settlement, it is common for a weekly or other periodic tenancy to be expressly created. In the absence of an attornment clause or some other express provision creating a periodic tenancy, a purchaser who is let into possession under a contract of sale of land becomes at law a tenant at will to his or her vendor, and cannot be ejected by his or her landlord without a previous demand of possession. The tenant has at the same time an equity which will not allow his or her vendor to determine the tenancy at will except by converting it into an estate in fee simple, or pursuant to some term of the contract itself, or by exercising a right to rescind the contract at law: Sandhurst Mutual Permanent Investment Building Society v Gissing (1889) 15 VLR 329 at 331; Nicholas v Smith [1956] VLR 416; Kinleyside v Irwin [1961] WAR 169. In Wheeler v Mercer [1956] 1 QB 274 at 284; [1955] 3 All ER 455, Denning LJ (as he then was), made the following observation concerning an argument of counsel: He took the case of a person who goes in under a treaty for purchase, and then the sale goes off. Such a person has been stated in the old books to be a tenant at will. Is he to be entitled to the benefit of the Act? I think not, for the simple reason that such a person is not a tenant at will at all. He is only a licensee: see Errington v Errington and Woods [1952] 1 KB 290, 297; 1 All ER 149. On appeal, this observation did not find favour, and, in the course of making the leading speech, Viscount Simonds said ([1957] AC 416 at 425) said: For there must be many cases, for example, where a purchaser has been let into possession before completion without any special

stipulation and is therefore at law a tenant at will, where it would be manifestly unjust to grant any tenancy. I must observe that, notwithstanding the observation of Denning LJ and the reference to Errington v Errington I cannot but regard the example that I have given as a typical case of a tenancy at will. A contract of sale which entitles the purchaser to immediate possession creates a tenancy at will: Tropical Traders Ltd v Goonan (1964) 111 CLR 41; [1964] ALR 585 at 591. As to whether a person who is permitted to occupy premises under a contract of sale or in anticipation of the grant of a lease is a tenant at will, see further Kater v Kater (1960) 77 WN (NSW) 873; on appeal (1960) 104 CLR 497; [1960] ALR 418; Baikie v Fullerton-Smith [1961] NZLR 901; Barraclough v Konnecke [1962] NSWR 1262; 79 WN (NSW) 821. As to whether, in the absence of agreement, a purchaser who is let into possession prior to completion of the contract of sale is liable to pay rent, see [11.13].

Encroachments by lessee [2.18] Where the tenant, during the currency of his or her tenancy takes (adverse) possession of land, whether or not immediately adjacent to the demised premises and whether or not the land is waste or belongs to the landlord or a third party, there is a presumption that the land so taken is part of the holding belonging to the landlord unless the tenant, during the term, communicates to the landlord some disclaimer of the landlord’s title: Smirk v Lyndale Developments Ltd [1975] Ch 317. The [page 74] old authorities dealing with encroachments by the tenant onto land other than that of the landlord, are discussed by Pennycuick V-C in the above case.

Termination of tenancy at will

[2.19] A tenancy at will is terminable at the will of either party: Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 299; Binions v Evans [1972] Ch 359; Greco v Swinburne Ltd [1991] 1 VR 304 at 313; Colchester Borough Council v Smith [1991] Ch 448 at 481–3; Javad v Aqil [1991] 1 WLR 1007 (CA). The authorities in relation to the termination of a tenancy at will were very usefully considered by Parker J in Caltex Properties Ltd (in liq) v Love (1997) 95 LGERA 132; BC9702078 at BC 21–24 (SC(WA)): It was submitted by counsel for the plaintiff that if I found a tenancy that was determinable only on reasonable notice then the tenancy was not a tenancy at will as a tenancy at will is one that is determinable instanter. I was referred to Landale v Menzies (1909) 9 CLR 89 in this regard. In Landale v Menzies the court was concerned with ascertaining the rights of the parties under an agreement relating to a ‘give and take’ fence between two pastoral properties separated by a watercourse. The headnote to the decision could be taken as suggesting that three members of a four member court agreed that a tenancy determinable on reasonable notice can be a tenancy at will. A careful reading of the reasons given by the members of the court reveal, however, that is not entirely accurate. Both Griffith CJ at 99 and Barton J at 111 held the agreement had an implied term that it was determinable only on reasonable notice, but only Barton J at 112–113 was unequivocal in finding the tenancy was one at will. It is apparent from Griffith CJ’s reasons at 102, 103 that he preferred the view that the agreement was a tenancy at will, but his Honour’s reasons must be taken as leaving it open whether the tenancy was one at will or one from year to year. At 102 his Honour said: For the reasons I have given I am of opinion that the plaintiff was, in point of law, lessee (whether at will or from year to year) … O’Connor J at 119 held that the agreement was a tenancy at will but was subject to a distinct undertaking that the will to terminate would only be exercised after reasonable notice had been given. Isaacs J at 130 held that is was a contradiction to speak of a tenancy at will determinable on reasonable notice. The view taken by Isaacs J has

been accepted as correct by Dixon J in Amad v Grant (1947) 74 CLR 327 at 345. Griffith CJ’s preference for the view that the agreement was a tenancy at will was no doubt based on historical notions of a tenancy at will. At 100–101 his Honour said: A contract for the exclusive occupation of land for a determinate period, however short, constitutes a lease: R v Morrish 32 LJMC 245. A period determinable at the will of either party is such a period. In such a case the lease is called at lease at will. And, in one sense, and perhaps in strictness every lease which is not for a term certain is a lease at will, although of late years the phrase is ordinarily used to describe a tenure under which the lessor may determine the lease instanter. But this was not the original idea of a lease at will. Griffith CJ then continued with a recitation of the historical development of a tenancy at will. In support of his conclusion that at a tenancy determinable on reasonable notice [page 75] is not a tenancy at will Isaacs J cited a nineteenth century case, Doe d Nicholl v McKaeg (1830) 10 B & C 721 [109 ER 618] at 723. The reasons of both Griffith CJ and Isaacs J reveal that the concept of a tenancy at will has not remained static. At the time Landale v Menzies was decided a tenancy at will had already evolved to the stage where it was considered to be determinable instanter: see Woodfall’s Law of Landlord and Tenant 17th edn (1902) at 252, so much was recognised by Griffith CJ in the passage cited above. It is for that reason that the preferable view is that expressed by Isaacs J. The views of the court in Landale v Menzies provide little guidance, however, in determining what is meant by a tenant at will in s 9 of the Limitation Act 1935. The terms of [the] section itself provide no guidance. The section, however, is almost identical to s 7 of the Real

Property Limitation Act 1833 (UK) (3 & 4 Will 4 c27). When an act, or a provision of an act, is enacted in similar terms to an English statute it is assumed the legislature knew of judicial interpretation of that statute or provision and intended that is should be interpreted the same way in Australia: National Phonograph Co of Australia Ltd v Menck (1908) 7 CLR 418 at 529 per O’Connor J; Townsville Harbour Board v Scottish Shire Line Ltd (1914) 18 CLR 306; Pearce v Kitchin (1931) 26 Tas LR 38. It is apparent from the discussion of the equivalent English provision in Woodfall’s Law of Landlord and Tenant 17th edn (1902) at 256–258 and the cases referred to therein, that in the English provision a tenant at will has been understood to mean a tenant holding under a tenancy determinable instanter; also see Colchester Borough Council v Smith [1991] Ch 448 at 483 per Ferris J. In my view that is the meaning which should be applied to s 9 of the Limitation Act 1935 for the reasons given. As indicated earlier in these reasons, implicit in the occupation agreement is a term that the agreement can be determined only on reasonable notice. Such a term is inconsistent with the notion of a tenant at will within the meaning of s 9 of the Limitation Act. That alone would also be sufficient to dispose of the defendants’ claim based s 9 of the Limitation Act. It is not possible for either party to agree not to give a notice of termination at all as the result would be an uncertain lease term: see Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 at 393–5; and see [1.5]. No period of notice is necessary for its determination (Stevenson v Mayor of North Melbourne (1890) 16 VLR 314 at 318), although, on termination by the landlord, the tenant has a reasonable time to enter and remove his or her goods, but not a right to exclusive possession for the purpose: Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47. However, in Leask v Farlmist Pty Ltd [1999] ANZ ConvR 566 at 568; BC9806783 at 11, Sheller JA, with whom the other members of the New South Wales Court of Appeal (Beazley JA and Fitzgerald AJA) agreed, said that where the appellant had gone into occupation as a tenant at will at a particular rent per month and s 127(1) of the Conveyancing Act 1919 (NSW) applied (as to this and corresponding provisions in other states, see [1.6]) the

tenancy at will was terminable by a month’s notice expiring at any time, referring to Dockrill v Cavanagh (1944) 45 SR (NSW) 78 at 84; and similarly Wykes v Samilk Pty Ltd (1998) NSW ConvR ¶55-871 (CA) at 56,827–8 (per Sheller JA, with whom Beazley and Stein JJA agreed); and see Simmons v Liristis Holdings Pty Ltd (SC(NSW), Smart AJ, 7 February 2000, unreported (BC200000160)), [page 76] particularly at [58]–[67], referring to Burnham v Carroll Musgrove Theatres Ltd (1928) 41 CLR 540; and see [2.15]. A tenancy at will may be determined by the lessor by an act inconsistent with the existence of the tenancy, as by demising the premises to a third person. Such an act, if done upon the land, is effective whether or not it is brought to the knowledge of the lessee; but if the act is done off the land it must be brought to the lessee’s knowledge: Griffin v Dunn (1878) 4 VLR (L) 419; Martin v Elsasser (1878) 4 VLR (L) 481. A tenancy at will is determined by the death of either party: Commonwealth Life (Amalgamated) Assurance Ltd v Anderson; Wheeler v Mercer [1957] AC 416 at 427. The tenancy is not an interest which is capable of being assigned or sublet, and a purported assignment or subletting by the tenant which comes to the knowledge of the landlord will terminate the tenancy: Fink v McIntosh [1946] VLR 290 at 292– 3. It would seem that the issue, or possibly the issue and service, by the lessor of a writ claiming possession will suffice to determine a tenancy at will so as to enable possession to be recovered in the action commenced by the writ (Martinali v Ramuz [1953] 1 WLR 1196; City Mutual Life Assurance Society Ltd v Lance Creek Meat Works Pty Ltd [1976] VR 1); nonetheless, it would be prudent to make a demand of possession before issuing the writ: see Martin v Individual Homes Pty Ltd (FCA, Full Court, 18 May 2000, unreported (BC200003377)); see also [17.12].

Tenancy at sufferance

[2.20] The so-called tenancy at sufferance is not truly a tenancy. It cannot be created by contract and arises by implication of law; it wants the essential characteristics of all real tenancies and is, indeed, a mere fiction of the law: Fry v Metzelaar [1945] VLR 65 at 67; Burnham v Carroll Musgrove Theatres Ltd (1928) 41 CLR 540 at 550. A tenant on sufferance is one who entered by a lawful title and, after that has ceased, wrongfully continues in possession without the assent or dissent of the person entitled to the property. The tenancy arises, for example, where a tenant for a fixed term holds over after the expiration of the term without either the assent or the dissent of his or her landlord: Wheeler v Mercer [1957] AC 416; [1956] 3 All ER 631. But where one who has been a lessee of premises and whose term has come to an end remains in possession against the will of his or her landlord, he or she is not a tenant on sufferance, but a trespasser. See Fry v Metzelaar [1945] VLR 65 at 67; Anderson v Bowles (1951) 84 CLR 310 at 319; [1951] ALR 913; Natural Gas & Oil Corporation Ltd v Byrne (1951) 68 WN (NSW) 207 at 212–13.

Vesting of tenancy on death [2.21] Prima facie, a periodic tenancy or a term of years vests in the tenant’s personal representative upon his or her death: Mellows v Low [1923] 1 KB 522 at 525; [1923] All ER Rep 537; Youngmin v Heath [1974] 1 WLR 135; Francis Longmore & Co Ltd v Stedman [1948] VLR 322; see also [5.18].

[page 77]

3 Licences Nature of licences [3.1] A mere licence passes no interest in land, but only makes an action lawful which without it would have been unlawful: Thomas v Sorrell (1673) 124 ER 1098 at 1109; Banks v Transport Regulation Board [1968] ALR 445 at 448–9. It operates as a bare permission to do what would otherwise be an invasion of the licensor’s rights: Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 at 630; [1937] ALR 273. The rights which are created are merely personal rights between the parties to a contract; such personal rights are binding solely upon the parties to the contract and do not run with the land: Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 300; [1944] ALR 89; and see [1.3] and [1.4] It follows that contractual doctrines apply; for example, the doctrine of frustration: Krell v Henry [1903] 2 KB 740; see National Carriers Ltd v Panalpina Ltd [1981] AC 675 at 693–4, 713–4; and see [6.10]. There are all sorts of licences, but basically each is an authority which prevents the individual to whom it is granted from being regarded as a trespasser on someone else’s property. Every licence is a limited permission both as to how long it will inure and as to what it allows to be done on the premises. It is contractual in origin and may be upon express or implied terms. It is a purely personal and temporary permission, a permissive occupation: Baikie v Fullerton-Smith [1961] NZLR 901 at 906. A licence to use premises for a particular purpose does not carry with it an implied warranty that the premises are fit for the agreed purpose: Morris-Thomas v Petticoat Lane Rentals

Ltd (1986) 53 P & CR 238 (CA). Nevertheless a court is not precluded from implying terms as to fitness or suitability for purpose of premises wherever necessary to give business efficacy to the contract granting the licence: Wettern Electric Ltd v Welsh Development Agency [1983] QB 796; and see [8.6], [10.1]. Something in the nature of a covenant for quiet enjoyment may be implied in favour of a licensee: Smith v Nottinghamshire County Council (1981) Times, 13 November (CA). [page 78] Considerable confusion of thought has resulted from the tendency to regard a licence as something having an existence apart from the contract creating it; as a proprietary right akin to but less than an interest in land. This tendency makes it easier to accept the view that it involves some interest in land which of itself will attract equity’s protection. In fact the word ‘licence’ merely epitomises certain rights arising under certain types of contract whereby permission is given to do something which would otherwise be unlawful: Dudgeon v Chie (1953) 55 SR (NSW) 450; proceedings on appeal are reported in (1954) 55 SR (NSW) 477, and (1955) 92 CLR 342. The contractual nature of licences may have significant consequences. For example, the courts will imply a term as to fitness or suitability for purpose of premises into contracts creating a licence to occupy land, but not into contracts for the sale of land or the grant of a lease: see Wettern Electric Ltd v Welsh Development Agency, above, and see [10.1].

Licence distinguished from lease [3.2] Unlike a licence, which does not create any estate or interest in the land: Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 300; [1944] ALR 89, a lease is not only a contract, but also that by which an estate or interest in the land demised is created: London and Northern Estates Co v Schlesinger [1916] 1 KB 20; [1914–15] All ER Rep 593; see further [1.2]. Sixty years ago it appeared to be settled that in order to determine whether what

had been granted was a lease (which created an estate or interest in the land) or a licence (which did not) it was necessary and sufficient to determine whether exclusive possession of the land had been given to the supposed lessee. A number of English decisions given in the course of the last 30 years unsettled the position, but since the House of Lords decision in Street v Mountford [1985] AC 809, it appears settled that exclusive possession is the touchstone of a lease; a position reaffirmed in Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 (HL), but, contrary to Australian authority, not necessarily with any requirement that it have a proprietary rather than mere personal aspect: see [1.2]. This test applies to both residential and business premises: see London and Associated Investment Trust plc v Calow [1986] 2 EGLR 80, but the indicia may vary as between residential and business tenancies: Dresden Estates Ltd v Collinson [1987] 1 EGLR 45. The authorities are discussed in [1.3], [1.4]; see further [3.3].

Matters not decisive [3.3] Often pains are taken by the parties, or at all events the party on whose behalf the instrument is drawn, to declare the nature of the relationship created. This declaration frequently takes the form of a statement to the effect that nothing in the document amounts to a demise. Such declarations are of very limited use. The use by [page 79] the parties of words like ‘rent’ and ‘tenancy’ is not decisive: Barnes v Barratt [1970] 2 QB 657; 2 All ER 483. Where persons were admitted to occupy suites of rooms in a house on the basis of a written agreement which provided, inter alia, ‘this licence does not constitute the relationship of landlord and tenant between the owner and the occupier and it is expressly agreed that no such relationship of landlord and tenant exists or shall exist by virtue of this agreement between the parties hereto’, it was held that the relationship between the owner and occupiers was not that of lessor and lessee: McCombe v

Smith (1950) 52 WALR 12. On the other hand, in many cases the characterisation of the relationship adopted by the parties in their agreement has been rejected by the court. For example, in Birt & Co Pty Ltd v Leichhardt Municipal Council (1951) 18 LGR 78, a deed which was described as a licence was held to exhibit a plain intention to confer upon the occupier the exclusive occupancy of the subject premises and to constitute a lease, despite the fact that the deed provided that nothing contained therein should amount to or be construed as a demise or as an agreement to demise the premises or any part thereof. For other cases in which it has been held that there was a lease despite the use of the word ‘licence’, see Wynyard Investments Ltd v Metropolitan Water Board (1953) 19 LGR 26; Addiscombe Garden Estates Ltd v Crabbe [1958] 1 QB 513; [1957] 3 All ER 563; Butcher v Bowen [1964] NSWR 36; 80 WN (NSW) 1520. The relationship is determined by the law, and not by the label which the parties choose to put on it: Addiscombe Garden Estates Ltd v Crabbe (QB) 528. In Danita Investments Pty Ltd v Rockstrom [1963] NSWR 1275; 80 WN (NSW) 1287, Ferguson J was confronted with an agreement which described the parties as licensor and licensee and provided that nothing which it contained should be deemed to constitute a tenancy between the parties or to constitute the relationship of landlord and tenant. His Honour held that the document was a lease, saying at NSWR 1277; WN 1288–9: Whether the document is a lease or a licence depends upon the intention of the parties to be gathered from its terms. For the claimant it is submitted that that intention is clearly evidenced by the use of the words licensor and licensee, and by the express terms of cl (4) above referred to. But in determining questions of this sort the court is not concerned with the legal relationship that in law arose from what they intended to do, which is a very different thing. This approach has been reaffirmed recently in Lewis v Bell (1985) 1 NSWLR 731 and by the House of Lords in Street v Mountford [1985] AC 809; see also Rental Bond Board v Bayman Development Pty Ltd (1985) 3 BPR 9670; National Outdoor Advertising Pty Ltd v Wavon Pty Ltd (1988) 4 BPR 97,322; Hamilton Island Enterprises Ltd v Croycom Pty Ltd [1998] ANZ ConvR 615; Q ConvR ¶54-509 (SC(Qld), Thomas J); Caltex Properties Ltd (in liq) v Love

(1997) 95 LGERA 132; BC9702078 (SC(WA), Parker J); and KJRR Pty Ltd v Commissioner of State Revenue [1999] 2 VR 174; see also the authorities and discussion at [1.3] and [1.4]. [page 80] An agreement which gave a person exclusive right of occupation of premises and all goods and chattels therein on payment of certain specified sums constituted that person a tenant in respect of the period of occupancy notwithstanding that the occupancy was stated to be ‘as caretaker’: Holden v Nuttall [1945] VLR 171. A lease may exist despite the fact that there are restrictions on the user: Glenwood Lumber Co v Phillips [1904] AC 405 at 408; [1904–7] All ER Rep 203; Radio Theatres Pty Ltd v City of Coburg [1948] VLR 84; Castor v Brisbane City Council [1955] St R Qd 348; ICI Alkali (Aust) Pty Ltd (in vol liq) v Federal Commissioner of Taxation [1977] VR 393; 6 ATR 271; 9 ATR 373. Similarly, the right of user may be restricted to certain times. Authority for this proposition is Radio Theatres Pty Ltd v City of Coburg, above, where a municipal council demised the messuage and premises, known as the concert hall, situated in its town hall, to hold the same unto the lessee for a period of three years for the purpose of using the demised premises as a theatre on six nights in each week, during the term granted, for night performances, and also on Saturday afternoons and public holidays for matinees. Provision was made for the lessee’s limiting its user to three nights a week together with matinees. By way of the grant of a ‘licence for occupancy’, the lessee covenanted to permit the council on giving notice to use and occupy the demised premises for its own purposes 12 times a year. There were covenants by the lessee to repair, to permit entry by the council and to yield up in good and tenantable repair, and there was a provision for a weekly tenancy at the expiration of the term. A lease was held to have been created. In Burns v Shire of Woorayl [1944] VLR 166, an instrument entitling the grantee to use a hall between 12 noon and 12 midnight on Tuesdays, Thursdays and Saturdays for a period of five years was held to be a mere licence; see further Pepper v District Council of Stirling [1948] SASR 344.

Lodgers [3.4] As a general rule a lodger is not a tenant because, although he or she may be the occupier of a room or rooms, the lodger has not the right to exclusive occupation of that part of the house, and is a licensee only. In Porter v Busch [1974] 1 NSWLR 593, Samuels J held that all that is necessary for the relationship of licensor and lodger to exist is some form of contract or agreement by which the former agrees to accept the lodger in that capacity. Such a contract or agreement does not require to be evidenced by some form of consensual arrangement made before the lodger entered into occupation, but may come into being at some later stage, and may then govern, not only the future relationship of the parties, but their relationship retrospectively from the date when occupation commenced. The contract or agreement may be evidenced by the acts and conduct of the parties. There is a presumption, where an owner is living in a house, that another occupier is a lodger rather than a tenant: Burnett v Guice [1946] VLR 257 at 259–60 (per Martin J): [page 81] … the question remains whether they occupied as tenants or as licensees. If as tenants, then the National Security (Landlord and Tenant) Regulations apply … Although the agreement was for specific rooms with the right to use the kitchen and other conveniences, there was no provision in it for attendance or services to be rendered by the plaintiff … The chief debate hinged on whether or not the defendants had exclusive possession of the part occupied by them. It is common ground that the plaintiff at no time entered their rooms, but if he retained the power of control, the fact that he did not exercise such power does not matter … There is no conclusive evidence that the plaintiff retained control of the whole house, in the sense that, for example, he could eject a trespasser from the bedroom occupied by the defendants, nor is there

any that the defendants had exclusive possession of the part occupied by them. Until quarrels occurred the plaintiff and the defendants appear to have used all the rooms, other than their respective bedrooms, in common and without objection. The border between lease and licence is not always easily apparent, and I do not consider either party had adduced evidence which enables me to say with any certainty that the plaintiff had or had not retained dominion of the whole house. But it is urged that there is a presumption, where an owner is living in a house, that another occupier is a lodger rather than a tenant; and the judgments of Collins MR in Kent v Fittall [1906] 1 KB 60 at 70; [1904–7] All ER Rep Ext 1308, and of Cozens-Hardy MR in Douglas v Smith [1907] 2 KB 568 at 575; [1904–7] All ER Rep Ext 1166, were cited in support of this contention … I accept the position that there is such a presumption and, as there is nothing to rebut it in the evidence, judgment will go for the plaintiff for possession of that part of the house occupied by the defendant. See too, Purbrick v Rybar [1951] VLR 275, and Varella v Marsicovetere [1954] VLR 550 to the same effect. But this presumption is one of fact only, which may operate where otherwise the evidence is insufficient to lead to a conclusion either way. It cannot prevail where there is sufficient evidence to enable the court to determine the question: Torrisi v Oliver [1951] VLR 380; Downie v Taylor [1954] VLR 603; Helman v Horsham & Worthing Assessment Committee [1949] 2 KB 335. See Lewis v Bell (1985) 1 NSWLR 731 and the House of Lords decision in Street v Mountford [1985] AC 809 at 823 where the distinction between a letting and a licence was considered in detail and the authorities reviewed; see also the discussion at [1.4]. Any inference that may be drawn from the statement of Lord Templeman (Street v Mountford, above, at 823) — that a person who enjoys exclusive occupation may be a lodger or a tenant — appears to be unjustified in view of the context of the judgment and the express adoption of the judgment of Windeyer J in Radaich v Smith (1959) 101 CLR 209 at 222; [1985] AC 809 at 827; a view supported by Hadjiloucas v Crean [1988] 1 WLR 1006 at 1019–20; and in the speech of Lord Templeman

himself in AG Securities v Vaughan [1990] 1 AC 417 at 465 and see Westminster City Council v Clarke [1992] 2 AC 288 (HL); All ER Rev 1989 pp 184–9; but see Uratemp Ventures Ltd v Collins [2002] 1 AC 301 (HL). [page 82] The application of the authorities in the case of occupation of premises by more than one person is usefully considered in the latter cases, the possibilities being two separate licences or a joint tenancy (see, particularly, AG Securities v Vaughan [1990] 1 AC 417 at 472–3). In determining whether an arrangement is one of letting or of licence the fact that the subject premises form part of the lessor’s own personal house is very strong evidence negativing an intention on the lessor’s part to create a tenancy: Stuart v Marshall (1958) 75 WN (NSW) 252. The question depends on whether the owner of the house resides upon the premises, retaining his or her quality of master, and reserving to himself or herself the general control and dominion over the whole. If the owner does this, the inmate is a mere lodger: Frieze v Unger [1960] VR 230 at 237. As to the meaning of ‘lodger’, see too Freeman v Wells [1909] VLR 361. The lessee of a dwelling house was accustomed to let a room to each of two persons with the right to use, in common with herself, the kitchen, bathroom, laundry and garage; and, in the event of any occupants ceasing to occupy, she let the room to other occupants successively. It was held that there was no relationship of landlord and tenant created: Harper v Fairbrother [1951] ALR 951. Where the keeper of a lodging house was asked by the defendant whether he could give accommodation to six persons, and he made available two partly furnished rooms, provided the linen, sometimes made the beds and provided other services, but retained the keys to the doors of the rooms, it was held in Sauter v Sangster (1950) 68 WN (NSW) 74, that the defendant was a mere licensee. The position of the occupier of a serviced room was also considered in Appah v Parncliffe Investments Ltd [1964] 1 WLR 1064. Persons may be lodgers despite the existence of a ‘rent book’ and the fact that they have exclusive possession of their bedrooms: Pearch v Gyucha (1953) 71 WN (NSW) 123. Compare

Walliker v Deveaux (1961) 78 WN (NSW) 409 and Psaltis v Collins [1961] NSWR 375; 78 WN (NSW) 424. The owner of a building comprising ‘flatettes’ entered into a ‘licence agreement’ with the defendant and another in relation to a ‘flatette’ comprising two rooms. Under the terms of the agreement, the ‘licensees’ were jointly and severally given the right to occupy the two rooms and to use certain furniture and cooking facilities therein and certain amenities of the establishment on payment of a weekly sum per person. The agreement gave each of the licensees the right, independently of the other, to ‘leave’ on seven days’ notice. The owner was given the right to give seven days’ notice to either ‘licensee’ to ‘leave’ and if the owner so chose to put, without the consent of the other, a stranger in her stead; and to fix rules for the house and to give reasonable directions to the ‘licensees’ governing their use of the premises. The ‘licensees’ agreed that their visitors or guests would not remain on the premises overnight. The relationship created was that of licensor and licensee: Nash v Johnsen [1965] NSWLR 1193. A family was permitted by the owner of a house to live in the house with him and to have exclusive possession of certain rooms and the use of other rooms with him. [page 83] The family paid certain periodical sums for such accommodation. Some seven years after the arrangement commenced the owner went to a convalescent home, where he died 18 months later, having done nothing about his home or the family occupying it. In an action of ejectment brought by the executor of the owner, it was held that the defendants had raised a triable issue as to whether a tenancy existed: Stephenson v Morgan (1963) 80 WN (NSW) 1719. A family arrangement for the sharing of a house created no tenancy in Armstrong v Armstrong [1970] 1 NSWR 133.

Employees [3.5] Where the occupier of premises has been let into occupation by his or

her employer, a further test is available for determining whether the arrangement is one of licence or of lease. If it can be said that the occupation is ascribable to the relationship of master and servant, and not to that of landlord and tenant, then there is a mere licence. This will be so if the occupation is subservient to and necessary to the service rendered: HA Warner Pty Ltd v Williams (1974) 73 CLR 421 at 429; Francis Longmore & Co Ltd v Stedman [1948] VLR 322 at 323. Generally, the courts are reluctant to infer the grant of a tenancy where no rent is paid and a domestic or other like relationship exists: Heslop v Burns [1974] 1 WLR 1241. The owner of a dwelling house gave to a married couple a right to occupy the house, jointly with himself, in return for services. No rent was ever fixed, and the arrangement could have been terminated by either party at any time. There was no such exclusive possession as would create a tenancy, and the arrangement, dependent on personal service by the occupiers to the owner, terminated on the death of the owner; what was created was a mere licence, and not a tenancy within the meaning of the relevant Fair Rents Act: McCann v Annett [1948] NZLR 116. Reservation of rent is not, however, essential to the creation of the relationship of landlord and tenant, and where an employee was placed in occupation of the premises in order to give him or her the benefit of a dwelling house as a concession, and the employee’s occupation was not subservient to or necessary to the service rendered by him or her, a tenancy was created: Francis Longmore & Co Ltd v Stedman; and see [1.12]. A fireman, with his partner and children, occupied a flat belonging to his employer. The flat was allotted to him at his own request, but the purpose of his occupying it was that he might the better perform his duties; he was not allowed to occupy as part of the remuneration for his services. No tenancy was created: Metropolitan Fire Brigades Board v Tait [1949] VLR 231. The fact that no rent was specified to be payable, that the supposed lessor could not grant a lease without breaking a covenant in the lease under which he himself held and the fact that the employment was liable to be determined on two weeks’ notice were regarded as pointing towards a licence in Warder v Cooper [1970] Ch 495; 1 All ER 1112. For other cases of a servant occupying premises owned by his or her master, see Rowlands v Producers and Citizens Cooperative Assurance Co Ltd

[page 84] (1950) 51 SR (NSW) 164; E & W Hackett Ltd v Oliver [1953] SASR 19. See also the House of Lords decision in Street v Mountford [1985] AC 809; Royal Philanthropic Society v County [1985] 2 EGLR 109; Norris v Checksfield [1991] 1 WLR 1241 (CA), and the comments in [3.4].

Miscellaneous cases [3.6] In Moss v Glebe Municipal Council (1947) 48 SR (NSW) 208, it was held that the relationship of landlord and tenant did not exist between a municipal council resuming land and the occupiers of the land. A tennis club occupying courts and a clubhouse was regarded as holding a lease, not a licence: Addiscombe Garden Estates Ltd v Crabbe [1958] 1 QB 513; [1957] 3 All ER 563. As to the standing of a purchaser who takes possession of the subject property before the completion of the contract of sale, see [2.17]. A right to prospect and mine for coal was considered in Mittagong Shire Council v Mittagong Anthracite Coal Co Ltd (1957) 3 LGRA 290. As to mining leases, see Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199; ICI Alkali (Aust) Pty Ltd (in vol liq) v Federal Commissioner of Taxation [1977] VR 393; 6 ATR 271; 9 ATR 373. In KL Distributors Pty Ltd v Jacob [1949] Tas LR 123, A granted to B the right to use and occupy a portion of the ground floor of business premises for the storage of goods. A’s employees at all times had access to the area occupied by B, and A paid for electric current consumed thereon. Some time after B had commenced to occupy the area, he asked for the key of the premises, which A refused. Later, A took possession of portion of the premises occupied by B, without seeking the permission of B, who merely acquiesced. B was held to be a licensee. On the question of lease or licence, see further Dudgeon v Chie (1955) 92 CLR 342 (share-farming agreement); Cody v Martyr (1954) 71 WN (NSW) 109 (tenant’s invalid son and his wife having exclusive possession of certain rooms); Marshall v Commonwealth Hostels Ltd [1953] VLR 503 (migrant in Commonwealth hostel); Shell-Mex and BP Ltd v Manchester Garages Ltd [1971] 1 All ER 841; [1971] 1 WLR 612 (service station); Hardwick v Johnson [1978] 1 WLR 683

(informal family arrangements). As to whether an advertising sign agreement constitutes a lease or licence, see Claude Neon Ltd v Melbourne and Metropolitan Board of Works (1969) 43 ALJR 69; National Outdoor Advertising Pty Ltd v Wavon Pty Ltd (1988) 4 BPR 97,322; and see [1.4].

Agreement for a licence [3.7] An agreement for a licence is not required to be evidenced in writing, for it is not an agreement for the creation of an interest in land: Wells v Kingston-Upon-Hull Corporation (1875) LR 10 CP 402. [page 85]

Determination [3.8] A licence is at once determined by the grantor’s ceasing to own the property over which it is exercised: Sharman v McIntosh (1951) 68 WN (NSW) 16; Frieze v Unger [1960] VR 230 at 240. A licence to occupy premises granted in return for personal services to be rendered to the licensor will terminate on the death of the licensor or licensee: McCann v Annett [1948] NZLR 116 at 120; Frieze v Unger at 240. This rule evidently applies to all revocable licences: Sharman v McIntosh; Butlin v Cox (1955) 73 WN (NSW) 44 at 48; Noblett v Manley [1952] SASR 155; ALR 673. One co-owner may terminate a licence, even without the consent of the other or others: Annen v Rattee [1985] 1 EGLR 136 (CA); and see [5.15]. Whether notice is required to determine a licence agreement depends upon the interpretation of the agreement, haying regard to the ordinary rules applied to the construction of contracts. An express provision about notice can be in any form which the parties care to adopt. If the term is that a contract is to terminate six months (or a reasonable time) after notice given, the notice need amount to no more than an election to terminate. It will automatically take effect after the expiry of six months (or of such period as the court subsequently determines to be

reasonable). On the other hand, an express term can prescribe the form and content of any notice to be given and then a notice in the wrong form or with insufficient content will be bad. If the contract is, as here, entirely silent about notice and a term has to be implied, the nature and requirements of the term to be implied must be settled according to the ordinary rules governing the implication of a term. The question then will be whether the necessary implication extends beyond that of a simple notice, to embrace a notice in a particular form or with a particular content: Australian Blue Metal Ltd v Hughes [1963] AC 74 at 100–1; [1962] 3 All ER 335. See also Lewis v Bell (1985) 1 NSWLR 731 where the termination of a licence to use a number of horse-boxes and other facilities which expressly provided for termination on one month’s notice was considered. If a licensee is entitled to reasonable notice and notice is given which is unreasonably short, the licensor will nonetheless succeed in an action to recover the premises from the licensee if in fact a reasonable time had elapsed by the date of the institution of the proceedings: Minister of Health v Bellotti [1944] 1 All ER 238; [1944] KB 298. In the well-known case of Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; [1937] ALR 273 at 281, Dixon J said at CLR 630–1: A licence which is not coupled with or granted in aid of an interest is revocable at law. It operates as a bare permission to do what would otherwise be an invasion of the licensor’s rights. If the permission is terminated, further continuance of the acts [page 86] it authorised becomes wrongful. A licensee does not become a trespasser until he has received notice that the licence is countermanded and until a reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance of the licence (Cornish v Stubbs [(1870) LR 5 CP 334]). But, if he then refuses to leave the premises, he cannot complain of his forcible removal.

See too Fowler v Begg (1953) 53 SR (NSW) 451. The revocation of a licence to occupy a bungalow was considered in Warder v Cooper [1970] Ch 495; 1 All ER 1112. In Wallshire Ltd v Advertising Sites Ltd [1988] 2 EGLR 167 (CA) it was held that letters written by the owners did not constitute notice to terminate the licence according to its terms as they stated that the licence was already terminated. The question whether equity will restrain the wrongful revocation of a licence has been much discussed in recent years in consequence of certain observations made by the House of Lords in Wintergarden Theatre (London) Ltd v Millenium Productions Ltd [1948] AC 173; [1947] 2 All ER 331. In Cowell’s case, the High Court had held that a licence given to enter upon land and view horse races, although granted for value, did not create a proprietary interest in the land, but created a contractual right only, and was revocable at common law, and that equity did not preclude the licensor from effectively revoking the licence or relying upon its revocation. The essence of the principle applied in Cowell’s case is that a licence may be determined and the licensee transformed into a trespasser even if the determination involves a breach of contract: Porter v Hannah Builders Pty Ltd [1969] VR 673 at 678. On the question whether Cowell’s case is still good law, see Brennan v Thomas [1953] VLR 111 at 120; Marshall v Commonwealth Hostels Ltd [1953] VLR 503 at 510; Adamson v Busch [1955] VLR 450 at 458; Baikie v FullertonSmith [1961] NZLR 901; Playgoers’ Co-operative Theatres Ltd v Workers Educational Association of NSW (1955) 72 WN (NSW) 374; Porter v Hannah Builders Pty Ltd; Hounslow (London Borough Council) v Twickenham Garden Developments Ltd [1970] 3 All ER 326; [1970] 1 Ch 233. Cowell’s case has been applied in New Zealand: Mayfield Holdings Ltd v Moana Reef Ltd [1973] 1 NZLR 309; see further Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93; and Tynec Pty Ltd v Geekie [2005] NSWSC 938. The question was considered again recently in Chaka Holdings Pty Ltd v Sunsim Pty Ltd (1987) NSW ConvR ¶55-367 and the authorities reviewed. Young J said (at 57,305–6): I turn now to the question as to whether relief against forfeiture can be given in respect of a contractual licence. It would seem to me that as a result of decisions such as Legione v Hateley (1983) 152 CLR 406 I can

do this though it would only be in exceptional cases that I would in fact do it, those cases involving situations where there was a trivial breach but great prejudice to the person seeking relief (see eg per Mason and Deane JJ at p 449. See also Shiloh Spinners Ltd v Harding [1973] AC 691). Not only does the [page 87] making of such an order seem open as a matter of principle, but, in this court, Hodgson J has already held in Proctor v Milton (1987) NSW ConvR ¶56,959 at 56,965 that this court can give such relief against forfeiture. His Honour said at that page that ‘relief will generally be granted only where the conduct of the party effecting the forfeiture can be described as unconscionable’. The defendant says that if the interest is a licence then equity should not intervene at all. This view may have been right many years ago but it seems to me that in the light of cases such as Verrall v Great Yarmouth Borough Council [1981] QB 202 and Rojain Pty Ltd v Ambrose [1986] VR 449, 455 [successfully appealed as McMahon v Ambrose [1987] VR 817, but this does not, for present purposes, detract from the citation] it does not represent the current law. It is true, as counsel for the defendant points out that the great majority of the cases in which equity has given relief by way of injunction in respect of licences with respect to land have been in connection with licences over public halls and arenas, see eg Heidke v Sydney City Council (1952) 52 SR (NSW) 143; Playgoers’ Cooperative Theatres Ltd v Workers Educational Association (NSW) (1955) 72 WN (NSW) 374; Alonso v Leichhardt Municipal Council (1975) 1 BPR 9368 and Verrall v Great Yarmouth Borough Council [1981] QB 202. The reason for this may well be that in such cases it is easier to demonstrate that damages are not an adequate remedy. There are examples of the use of the remedy outside the public hall situation which reinforces the view that the remedy is not limited to those situations: see, for example, Vinden v Vinden [1982] 1 NSWLR 618 where a bare licence

to occupy a private house was protected by injunction because the defendant’s conduct made it unconscionable not to do so. The defendant also submitted that if the court gave relief in respect of a contractual licence, it was opening up a whole new area of reversing breaches of contract. I think this may be true as a matter of theory, but the circumstances in which relief may be given will not, in practice, open the floodgates, see, for example, Megaloconomos v MGM Ltd (1953) 54 SR (NSW) 275. I have already referred to the decision of Hodgson J in Proctor v Milton (1987) NSW ConvR ¶56,959. This decision has the effect that equity will in the appropriate cases grant relief against forfeiture where the plaintiff’s interest is a licence appears to be consistent with principle (see, for example, note by Butt (1987) 61 ALJ 369–73). In any event even if I had reservations about the decision (which I do not) in comity I should follow it. The grounds for giving relief against forfeiture are that it would be unconscionable for the defendant to take advantage of the situation. The grounds may be those set out in the judgment of Mason and Deane JJ in Legione v Hateley (1983) 152 CLR 406 at 449 but this is clearly not intended as anything more than a guide (see pp 448–9 and McArthur v Stern (1986) 5 NSWLR 538 at 554). [See Stern v McArthur (1988) 81 ALR 463.] Thus what must be asked is how it is unconscionable for the defendant to rely on the fact that at law the plaintiff’s interest has terminated? When considering this question, particular attention must be paid as to the nature of the breach, the loss of the plaintiff, the gain of the defendant and any involvement of the defendant in the circumstances which constituted the plaintiff’s breach. In Australian Aggregates (NSW) Pty Ltd v Maxmin Pty Ltd (SC(NSW), Hodgson J, 16 May 1988, unreported) it was held that the New South Wales statutory provisions [page 88]

which provide for relief against forfeiture when the right to renew a lease has been lost by some breach of covenant do not apply to licences: see [14.6].

Recovery of possession [3.9] Where a mere licence is granted and the licensee refuses to depart from the premises after his or her licence has been determined, summary proceedings may not be available in the lower courts. Sometimes it is not possible to assert with confidence the nature of the relationship which formerly existed between the occupier of land and the person who gave permission to occupy; the agreement may have been a mere licence, or it may have created a tenancy at will or a periodic tenancy: see [2.15] (and see [2.19] in relation to the termination of a tenancy at will). Proceedings may be available in the lower courts if a tenancy did exist, whatever the nature of the tenancy; but if there is a possibility that the parties were merely licensor and licensee it may, depending on the particular legislation and court rules, be unsafe to proceed in the lower courts, if jurisdiction is dependent upon the former existence of a tenancy. A number of decisions illustrate this type of limitation on the jurisdiction of lower courts to which reference has just been made. In the first place, the relationship which formerly existed must have been that of landlord and tenant: Ex parte Wood (1889) 6 WN (NSW) 78. If the parties were licensor and licensee, the court has no jurisdiction: Ramsbottom v Snelson [1948] 1 KB 473; 1 All ER 201; Zunneberg v Batt [1948] VLR 107 at 108. In the same way, a person who has always been a mere trespasser (as opposed to a person who was a tenant and has become a trespasser in consequence of the determination of his or her tenancy) cannot be ejected by proceedings in a magistrates’ court: Zunneberg v Batt at 108; Ex parte Woolley (1870) 9 SCR (NSW) 305; Ex parte Wood (1889) 6 WN (NSW) 78; Cohen v Milner [1960] VR 499 at 504. Tenancies at sufferance are, as has been observed in [2.20], not true tenancies, and such a tenancy does not attract the jurisdiction of a magistrates’ court: Ex parte Woolley (1870) 9 SCR (NSW) 305; Ex parte Rooney (1873) 11 SCR (NSW) 381. On the other hand, ejectment proceedings may be taken against a former tenant at will: Ex parte Rooney (1873) 11 SCR (NSW) 381; Ex parte Gruer (1891) 8 WN (NSW) 44; Mackett v Shields (1894) 16 ALT 38; Holmes v North (1872) 2 VLR (L) 84 at 87

(per Stephen J). A tenancy will support proceedings notwithstanding that its creation may have been a breach of trust: Ex parte Palmer (1912) 12 SR (NSW) 756. The mere fact of a quondam tenancy is not, however, enough to confer jurisdiction; for the parties may upon or after the determination of the tenancy have substituted some new relationship. This was the situation in Barker v Williams [1933] VLR 101 where the lease was replaced by a licence and, the licence having been revoked, jurisdiction was held not to exist in a magistrates’ court. Hamilton v Chapman [1902] QWN 86 is a similar case. [page 89] The general position in relation to the recovery of possession from a trespasser was discussed by Owen J in Nyul Nyul Aboriginal Corporation v Dann (1996) 133 FLR 359 (SC(WA)) at 371: So far as concerns occupancy of the house, the defendant is a ‘squatter’ as that word was explained in McPhail v Persons Unknown [1973] Ch 447. At law a squatter is regarded as a trespasser and the true owner is entitled to recover possession from a trespasser without serving a notice to quit. This much appears from what Lord Denning MR said in McPhail (supra), at 456: What is a squatter? He is one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can. He may seek to justify or excuse his conduct. He may say that he was homeless and that the house was standing empty, doing nothing. But this plea is of no avail in law … The owner is not obliged to go to the courts to obtain possession. He is entitled, if he so desires, to take the remedy into his own hands. He can go in himself and turn them out without the aid of the courts of law. This is not a course to be recommended because of the disturbance that might follow. Of course, the fact that the owner can embark on a self-help regime

does not mean that the owner is deprived of a remedy at law if he or she wishes it [as to the remedy of self-help, see [21.2] to [21.4]]. The owner is entitled to a writ of possession immediately. In those circumstances it must follow that a notice to quit prior to the issue of the writ seeking possession is not necessary. I have so far been speaking of the occupancy by the defendant of the houses. I do not think there can be much doubt that the plaintiff, through George Dann, granted the defendant a licence to come onto the Land and to live in a caravan on the Land in connection with his employment: see Dover v Prosser [1904] 1 KB 84 per Lord Alverstone CJ at 86; Ramsbottom v Snelson [1948] 1 KB 473. There is a distinction drawn in these cases between a situation where the occupier is required to live in a particular place as a term of his employment and a situation where the occupancy is a matter of convenience for all parties. It would be a strained construction of the evidence to find that the defendant was required, by virtue of the arrangement which he reached with George Dann, to live in a caravan on [land] at Lungabid. The better view is that this was a matter of convenience. The cessation of the employment may well entitle the owner to bring the licence to occupy to an end but it must do so in the customary fashion. In other words, this was a contractual licence revocable at law rather than a licence creating an interest of a proprietary nature: see Cowell v Rosehill Racecourse Co Ltd (1936–1937) 56 CLR 605 at 616–617. As to the process of determination of licences, see [3.8].

[page 91]

4 Agreements for a Lease Agreements and leases [4.1] An agreement for a lease must be distinguished from a lease. The former is a contract whereby the parties bind themselves to give and take respectively a lease at some time in the future. The latter contains words of present demise, which may be expressed or implied; a lease is a species of conveyance, and the question is whether the parties intend that an estate in the land shall by force of their agreement be conveyed by one to the other. If they do so intend, there is a lease. An agreement for a lease contemplates that an estate will be conveyed by some further act at some future time. This is not to say that the term of a lease must commence as soon as the lease is granted. The term may be made to commence in the future, in the past or at the present. However, a term defined in a deed as beginning from a date prior to the delivery of the deed, say for 10 years from such date, is not a term of 10 years. It is a shorter term beginning from the date of delivery of the deed and ending 10 years from the earlier date specified in the lease: see Earl Cadogan v Guiness [1936] Ch 515 at 517–19 (per Clauson J); Brikom Investments Ltd v Seaford [1981] 1 WLR 863 at 866 (per Ormrod LJ). Thus the making of a lease cannot effect the grant of an estate for the period of a preceding agreement for lease; see also [1.10]. The distinction between the lease and the mere agreement for a lease resides in the fact that the lease does more than create mere contractual rights; it creates at once an estate, even though the interest of the tenant may be reversionary: Green v

Bowes-Lyon [1960] 1 WLR 176; Total Oil Great Britain Ltd v Thompson Garages (Biggin Hill) Ltd [1972] 1 QB 318 at 323–4; Leitz Leeholme Stud Pty Ltd v Robinson (1977) 2 NSWLR 544; National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675; and see [6.10]. While it might appear to follow that contractual doctrines would apply to an agreement for lease because it [page 92] is a contract without any formal conveyance (see National Carriers case at 693– 702 and 713–15 and Rom Securities Ltd v Rogers (Holdings) Ltd (1967) 205 EG 427) the position, in Australia at least, appears to be otherwise as the creation of an equitable term of years (see [4.8]) takes an agreement for lease out of the class of mere contracts and puts it in the same position as a lease: see National Trustees Executors and Agency Co of Australasia Ltd v Boyd (1926) 39 CLR 72, cited with approval by Mason J (with whom Wilson and Dawson JJ agreed in substance) in Progressive Mailing House Pty Ltd v Tabali (1985) 157 CLR 17 at 27. Compare Brennan J (at 40–1); and see Deane J who cautions against (at 54): … the danger of over-emphasising the equivalence of the equitable estate under an agreement for lease or an unregistered memorandum of lease followed by entry into possession and of a common law leasehold estate for the like term in that one can point to statements of authority which support the approach that the ordinary contractual doctrines of frustration and termination for fundamental breach would, in an appropriate case, operate to destroy the contractual foundation of such an equitable estate even if the view that they were not applicable at all to a common law lease had continued to prevail: see Coatsworth v Johnson [(1886) 55 LJ QB (NS) 220 at 223] (per Lindley LJ); Swain v Ayres [(1888) 21 QBD 289 at 294] (per Lord Esher MR), [at 295] (per Lindley LJ), [at 296–7] (per Lopes LJ), and Dimond v Moore [(1931) 45 CLR 159, esp at 186–7]. See also Chan v Cresdon Pty Ltd (1989) 168 CLR 242; Todburn Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 97,333; NZI Insurance Australia

Ltd v Baryzcha (2003) 85 SASR 497 (CA); and the discussion at [4.8]. Note also the divergent positions at law and in equity this situation produces with respect to the nature of the occupancy of premises: see [2.8], [2.15] and [4.8]. Regardless of the existence of divergent positions as to the effect of an agreement for lease, it is clear that the issue will not arise unless the agreement for lease is complete in that it contains all the essential elements of an enforceable agreement for lease, viewed in the context of the particular circumstances: see NZI Insurance Australia Ltd v Baryzcha at 506 ([30]–[39]), set out in part at [4.8]; and see Wesfarmers Bunnings Ltd v Angus & Robertson Bookworld Pty Ltd [1998] VSC 101 at [45]–[65] (per Gillard J); Woodford Nominees Pty Ltd v Masjakan Medical Pty Ltd [1998] ANZ Conv Rep 254 (SC(Qld)); and One Stop Lighting (Queensland) Pty Ltd v Lifestyle Property Developments Pty Ltd (1999) Q ConvR ¶54-527. An agreement for lease is quite distinct from an agreement in relation to the terms of a lease, such as an agreement between a third party and the tenant not to vary the terms of the lease, which creates enforceable rights between the parties to that agreement but which does not impinge directly on the relationship between the landlord and the tenant under the terms of the lease: see Almond v Camrol Pty Ltd (1984) 3 BPR 9461. Also, the use of the expression ‘agreement for lease’ as a general description of some arrangement to be negotiated and formalised in the future, whether by formal grant at law or by way of agreement in contract only, is to be distinguished from an actual agreement to lease, containing all the essential elements [page 93] and enforceable on the bases discussed below according to the applicable Masters v Cameron (1954) 91 CLR 353 category: see Fush v McKendrick & Co Pty Ltd (2004) V ConvR ¶54-686 (CA), particularly at 62,790, [20] (per Buchanan JA). It remains open to the parties to vary the terms of the agreement for lease in the formal lease itself when that is entered into: see Players Pty Ltd v Clone Pty Ltd [2006] SASC 118 at [117]–[119]; and see Leggott v Barrett (1880) 15 ChD 306 (CA) where James LJ said (at 309): ‘… if parties have made an executory contract which is to be carried out by a deed

afterwards executed, the real completed contract between the parties is to be found in the deed, and that you have no right whatever to look at the contract, although it is recited in the deed, except for the purpose of construing the deed itself’; and see Lewison, The Interpretation of Contracts (6th ed), para 10.13; and see [3.05]. It should be noted that instruments styled tenancy agreements are usually found to be in fact leases; see further [1.1]. A document which purports to be a demise of land, but which is void or invalid as such may, nevertheless, be used as an agreement between the parties to it, and in appropriate cases specific performance of the agreement can be obtained: O’Dwyer v Butts (1952) 69 WN (NSW) 198; see further the proceedings on appeal (1952) 87 CLR 267; [1953] ALR 117. Also see [1.6]. The effect of granting a lease or sublease without the consent of the appropriate person as required by the terms of a statutory power to lease will, depending on the terms of the statutory provision, be to create an agreement for a lease or sublease until the required consent is given or refused: see Palmdale Insurance Limited v Sprenger [1988] 1 Qd R 414; see also [15.16]. A person in possession under an agreement for a lease as distinct from a lease may obtain relief against forfeiture for non-payment of rent: Greenwood Village Pty Ltd v Tom the Cheap (WA) Pty Ltd [1976] WAR 49. Depending on particular circumstances and any agreement between the parties, an agreement for a lease may require a degree of formality, such as an exchange of parts, before it comes into existence: see [1.5] with respect to the creation of leases in writing. In commercial developments which involve construction of premises it is common for an agreement for lease to be executed prior to the lease and the same formality generally attends the creation of the agreement for lease as the lease. The question in any particular case is, however, one of intention, determined objectively: see Brunswick Development Pty Ltd v Shock Records Pty Ltd (1996) V ConvR ¶54-604 (FCA) where Sundberg J said (at 67,267–8): Shock contended that even if the parties had reached agreement upon the essential terms of the lease, they did not intend to be contractually bound until a formal lease was executed. It said the case fell within the

third class mentioned in Masters v Cameron (1954) 91 CLR 353 at 360 [Dixon CJ, McTiernan and Kitto JJ]: Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be [page 94] dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of these terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract. In the first case there is a binding contract, whether or not the contemplated formal document comes into existence. In the second case there is a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution. In the third, there is no contract. Although the terms have been agreed, the parties do not intend to be bound until the formal contract is executed. The intention of the parties is to be ascertained on an objective basis: Encino Plaza Pty Ltd v Wilson International Pty Ltd (1988) V ConvR [¶54-308] p 63,908. In my view the parties intended to be bound upon the signing of

the Offer document. The document is expressed with some formality and precision. It has a distinct legal flavour. It uses the language of offer and acceptance. It provides for payment of two months rental as a deposit. Shock’s common seal was to be affixed. That Mr Lo Giudice attached importance to the formality of a seal was apparent to the directors, for after they had signed the document he returned it to them for the seal to be affixed. The fact that the parties contemplated the execution of a formal lease does not of itself mean they did not intend then and there to be bound. In Masters v Cameron, speaking of the first class of case, the Court said at 360–361 [Dixon CJ, McTiernan and Kitto JJ]: Throughout the decisions on this branch of the law the proposition is insisted upon which Lord Blackburn expressed in Rossiter v Miller (1878) 3 App Cas 1124 when he said that the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties does not, by itself, show that they continue merely in negotiation. Shock’s counsel submitted that what happened was really rather informal, and the fact that there was no formal exchange of executed parts of the Offer document argued against an intention that the parties were to be immediately bound upon acceptance of the offer. It has often been said that the usual method of making a contract for the sale of land is by the exchange of parts, and that in the absence of an exchange no binding agreement exists: Allen v Carbone (1975) 132 CLR 528 at 533; Sindel v Georgiou (1984) 154 CLR 661 at 655–656. No evidence was led as to whether in Victoria the usual practice in relation to leases or agreements for leases involves the exchange of parts. Cf Voumard, Sale of Land 5th ed at 27–28. In Encino Plaza at 63,915 Ormiston J rejected an argument, based on the sale of land analogy, that no binding agreement should be found in the absence of an exchange of counterparts of an agreement for lease. In my view the case falls within the first class in Masters v Cameron. The objective intention of the parties, viewed in the context of their

negotiations, was that they were to be immediately bound, although they also intended that the terms of their bargain [page 95] would be restated in a form which would be ‘fuller or more precise but not different in effect’. That was the burden of special condition 2. The formal lease was to incorporate the terms of the Offer, and would be made fuller or more precise by reference to the standard lease in use by the Banco Group. The agreement may also fall within the, so called, fourth category of Masters v Cameron: ‘“That is the category where parties intend to be immediately bound but also intend and may indeed agree to have a further agreement with additional and perhaps different terms.” (the reference to “the Fourth category” being based on what was said by McLelland J (as his Honour then was) in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd [(1986) NSW ConvR ¶55-299 at 56,786; affd (1987) NSW ConvR ¶55-324 at 56,981]; see also Sinclair Scott and Co Ltd v Naughton [(1929) 43 CLR 310, 317]).’: per Powell JA in Heysham Properties Pty Ltd v Action Motor Group [1997] ANZ ConvR 440 at 445; and, similarly, Sheller JA at 443; and see Abigroup Contractors Pty Ltd v ABB Service Pty Ltd (Formerly ABB Engineering Construction Pty Ltd) [2004] NSWCA 181; (2005) 21 BCL 12 (CA). Carter comments that whether or not a fourth category does exist, as the Baulkham Hills Private Hospital case and also Tern Minerals NL v Kalbara Mining NL (1990) 3 WAR 486 suggest, ‘the initial agreement in situations where parties are bound by an agreement to execute a formal document containing additional terms … will be enforceable unless superseded by a later agreement’: see Contract Law in Australia (6th ed, 2013), [5–06]; and see Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27. See also Lend Lease Financial Planning Ltd v Southcap Pty Ltd (CA(Qld), 2 June 1998, unreported (BC9802393)); and Kingsley’s Chicken Pty Ltd v Queensland Investment Corp [2006] ACTCA 9; BC200603875. The nature of the particular lease may enable inferences to be drawn with

respect to the Masters v Cameron categories. For example, in Landsmiths Pty Ltd v Hall (1999) 9 BPR 17,057 Young J said (at 17,058): [9] The cases show that the court is entitled to assume that where there is a contract for the sale of land or a lease for three years or more, the parties normally intend to have a formal document, in the case of a lease because it has to be registered. Again, the cases show that it is more likely than not that in such a situation the parties do not intend to be bound until the formal document has been exchanged. This is the case with leases: Blackburn Developments No 19 Pty Ltd v Downs Surgical (Australia) Pty Ltd (1974) 2 BPR 9141. I applied that case in Arjay Investments Pty Ltd v Morrison’s Outdoor Catering Pty Ltd, 1 May 1995, unreported, and further said in that case that one also looks to see whether the parties have involved solicitors in the transaction, and that the mere fact that they have hit upon a price or have worked out the basic conditions of their agreement does not necessarily indicate that they have reached a legally binding agreement. In certain circumstances a concluded agreement for lease may be found on the basis of the conduct of the parties, without the need for classic offer and acceptance: see Paull v Williams [2005] NSWCA 421; [2006] ANZ ConvR 132 at [24] (per Giles JA, [page 96] with whom Tobias and Bryson JJA agreed); and see Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523; Integrated Computer Service Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110; Gamvrogiannis v Blackshaw (2000) NSW ConvR ¶55-940, affd [2002] NSWCA 6; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153); L E Stewart Investments Pty Ltd v F C & M Legge Building Contractors & Developers (2003) 11 BPR 21,053; and Boreland v Docker (2007) NSW ConvR ¶56-182 (CA) at 56,323–4 (per Beazley JA (with whom Mason P and Ipp JA agreed) at [75]–[86]); and having regard to all relevant facts, including events which took place after the conclusion of the alleged agreement, see Wesfarmers

Bunnings Ltd v Angus & Robertson Bookworld Pty Ltd [1998] VSC 101 at [45]– [65] (per Gillard J), particularly at [46] (referring to Hussey v Horne-Payne (1879) 4 App Cas 311; Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68; Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd (1994) 2 VR 106 at 134); and see Global Halal Meat Exports Pty Ltd v Macri Investments Pty Ltd (SC(WA), 11 April 1996, unreported (BC9601186)) where Steytler J commented (at BC9601186 17–18): It seems now to be settled, on this question of contractual intention, that a court may have regard to communications between the parties after what is contended to have been the time of formation of a binding agreement in order to assist in the determination, objectively, of the question whether or not they intended to form such an agreement. (See, for example, B Seppelt and Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147; Geebung Investments [Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd (1995) Aust Contract Reports ¶90-059] at 90,322 and Australian Broadcasting Commission v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 547–8 and cf, also, Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 and Elmslie v Commissioner of Taxation (1993) 46 FCR 576 at 586–7). But see Moratic Pty Ltd v Gordon (2007) NSW ConvR ¶56-172 at [20]–[25] (per Brereton J) where it was held that there was no agreement to vary a lease arising from a course of dealing between the parties. It is a different question whether conduct subsequent to the making of an agreement can be relied upon for the purposes of its interpretation, as to which see [6.6]. The question whether the parties intend to make a concluded bargain is to be resolved objectively: see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 (CA) where it was held that the question of intention in this respect was, prima facie, to be resolved objectively by the usual process of construction of the relevant documents; and see Wesfarmers Bunnings Ltd v Angus & Robertson Bookworld Pty Ltd at [45]–[65] (per Gillard J); Guilfoyle Pty Ltd v National Mutual Life Association of Australasia (2000) V ConvR ¶54-622 (CA); and Long v Piper

(2002) NSW ConvR ¶56-000 (CA). As to the distinction between this question and whether the parties intended to create legal relations, see [6.2]. The difficulty in determining whether a binding contract has come into existence in the context of agreements for lease was discussed by Young J in Arjay Investments [page 97] Pty Ltd v Morrison’s Outdoor Catering Pty Ltd (SC(NSW), 1 May 1995, unreported (BC9504537)) where the following ‘guidelines’ were offered (BC9504537 at 4 and 5): The question as to whether there has been a binding contract in this sort of situation is one which is often difficult to resolve because one has to look at the intention of the parties where the understanding they may have reached is contained in what might be called commercial correspondence often imprecisely formulated. The courts have worked out various guidelines to assist in coming to a conclusion as to whether there is a binding agreement. These are only guidelines and the actual evidence in a case, or the actual intention of the parties, will, of course, mean that one may have to put some of the guidelines to one side, but nonetheless they are helpful. One of these guidelines is that where one has a lease of commercial premises one normally expects that the lease will only come into existence after there has been an exchange of formal documents; Blackburn Developments No 19 Pty Ltd v Downs Surgical (Australia) Pty Ltd (1974) 2 BPR 9141, which applies the Eccles v Bryant [1948] Ch 93 rule for leases. See also Summit Properties Pty Ltd v Comserv (No 784) Pty Ltd (1981) 2 BPR 9173. A second guideline is that if one can see in the negotiations that the parties have in mind the preparation of a more formal document by a solicitor, one tends to think that they did not intend to be bound until the formal document was produced and exchanged. Thirdly, the mere fact that parties have hit upon a price or have

worked out the basic conditions of their agreement does not necessarily indicate that they have actually reached agreement; Clifton v Palumbo [1944] 2 All ER 497. Indeed, it is not at all uncommon in a sale of land transaction for estate agents to prepare a document similar to the heads of agreement document in the present case for the purpose of being submitted to the solicitors for both sides so that they have some details from which they can draw a formal document. The mere agreement on the basics does not mean that there is an operative agreement. Thus in Kassabian v Lagonicos (1993) NSW ConvR 55-690 at 59,943 McLelland CJ in Eq said, ‘There must be more than the arrival by the parties at a consensus. The parties must intend that the consensus at which they have arrived should there and then constitute a binding contract.’ Guidelines of this nature do, however, have their limitations, as indicated by Bryson J in Napatarra Pty Ltd v Perpetual Trustee Co Ltd [1999] NSWSC 750; [2000] ANZ ConvR 592; BC9904183 (at [8]): In Dellwest Pty Ltd v Cafabe Pty Ltd (Bryson J) Unreported 26 November 1997, p 7 I said: ‘Counsel referred me to Arjay Investments Pty Ltd v Morrison’s Outdoor Catering Pty Ltd (Young J 1 May 1995 unreported) at p 4 and p 5 where his Honour set out guidelines to assist in coming to a conclusion as to whether there is a binding agreement arising out of commercial correspondence. The dominance of the facts of the present case is such that, in my opinion, guidelines and normal expectations are of little value. Judges of the Equity Division have, I think it is right to say, approached allegations that there has been an agreement to grant a commercial lease with the knowledge that commercial practice is that a binding relationship is made at the point of execution and delivery of the lease. However that is no more than an approach, as it [page 98]

is quite open to persons in negotiation for a commercial lease to proceed as they choose and to make an agreement for lease in an informal way, by correspondence or orally; if they do come to an agreement in that way the Court must recognise that this is so and act on their agreement.’ See too Arjay Investments Pty Ltd v Morrisson’s Outdoor Catering Pty Ltd (Young J) Unreported 1 May 1995 at p 4. There is considerable gulf between taking this approach and reaching a conclusion on the facts of any particular case, as the conclusion must be dominated by those facts. And see G and E Avakoumides Pty Ltd v Commonwealth Funds Management [2004] NSWSC 711 at [17] and [18] (per Windeyer J); and Long v Piper (2002) NSW ConvR ¶56-000 (CA) at [55], where Giles JA doubted the utility of guidelines, saying: I prefer not to speak of guidelines. It must depend on the particular situation, but if the parties are following normal practice for the creation of a building lease, particularly a relatively major lease of a hotel with an option to purchase, that is an indication that they do not intend to be bound until execution of the formal lease. In Lend Lease Financial Planning Ltd v Southcap Pty Ltd (CA(Qld), 2 June 1998, unreported (BC9802393)) Pincus JA commented that guidelines of this kind should be used cautiously: BC9802393 at 12; and see [7.16]. Nevertheless, the cases indicate that guidelines, whether formally applied or not, may provide assistance in directing consideration to relevant matters, the significance and weight of which will depend upon the particular circumstances. In any event regard should be had to the note of warning sounded by Ormiston JA (dissenting on the particular issues, not general principles) in Guilfoyle Pty Ltd v National Mutual Life Association of Australasia (2000) V ConvR ¶54-622 (CA) where his Honour commented (at [24]): It is sufficient for me to say that, where interests in land, whether by sale, lease or sub-lease, are involved and are being negotiated by persons some of whom have legal training, one should be careful not to assume that the parties would not require the necessary conveyancing documents to be exchanged before they are bound.

In Sydney Harbour Casino Holdings Ltd v NMBE Pty Ltd (CA(NSW), 23 October 1998, unreported (BC9805593)) it was held that there was no final agreement on a variety of important issues and, consequently, also that a ‘holding deposit’ was recoverable on the basis that the prospective contract failed to come into existence: applying the prima facie rule in this respect, referring to Masters v Cameron (1954) 91 CLR 353 at 364–5 (per Dixon CJ, McTiernan and Kitto JJ); Henning v Ramsay [1964] NSWLR 1165; in England, Sorrell v Finch [1977] AC 728 at 743–5, 754 (per Lord Russell). An agreement for lease may not arise until certain preconditions are met or be subject to an ‘escrow’: see Budmore Pty Ltd v Johnson (1993) 6 BPR 97,486; and see Brunswick Development Pty Ltd v Shock Records Pty Ltd (1996) V ConvR ¶54-604. Similarly, where ministerial consent or compliance with other statutory formalities is required, see Graham v Moree Local Aboriginal Land Council [2004] NSWSC 1178; BC200408599; and see [1.5]. Generally, as to consents in conveyancing transactions, [page 99] see Lewison, The Interpretation of Contracts (6th ed, 2015), para 14.10. The issue whether there are any preconditions to an agreement for lease taking effect is to be contrasted with the question whether parties have merely been negotiating and have failed to conclude an agreement for lease: see, for example, Brunswick Development Pty Ltd v Shock Records Pty Ltd. The issue of preconditions arose in Players Pty Ltd v Clone Pty Ltd [2006] SASC 118 (FC) in relation to the question whether the liability of a guarantor (arising out of a notation to the guarantor’s attestation of the agreement) was conditional upon the grant of a lease term in accordance with an agreement for lease. In relation to this issue Doyle CJ said: [134] In Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Mason J considered the Court’s approach to conditions of the kind in question. Although his judgment was a dissenting judgment, there is no reason to think that his statement of the principles is not an accurate summary of the law. He said at 552:

Generally speaking the court will tend to favour that construction which leads to the conclusion that a particular stipulation is a condition precedent to performance as against that which leads to the conclusion that the stipulation is a condition precedent to the formation or existence of a contract. In most cases it is artificial to say, in the face of the details settled upon by the parties, that there is no binding contract unless the event in question happens. Instead, it is appropriate in conformity with the mutual intention of the parties to say that there is a binding contract which makes the stipulated event a condition precedent to the duty of one party, or perhaps of both parties, to perform. Furthermore, it gives the courts greater scope in determining and adjusting the rights of the parties. For these reasons the condition will not be construed as a condition precedent to the formation of a contract unless the contract read as a whole plainly compels this conclusion. [135] The issue of the effect of the notation raises a question of the construction of the Agreement. The effect of the notation, as a matter of construction, is not affected by the later conduct of the parties, although that conduct may, as in Kennedy v Vercoe [(1960) 105 CLR 521], affect the entitlement of a party to rely upon a condition. The title of a party to make an agreement for lease may arise. In Brunswick Development Pty Ltd v Shock Records Pty Ltd (1996) V ConvR ¶54-604 Sundberg J, speaking in general terms, said (at 67,269) that ‘… at common law a lessor is not required to show title at the date of an agreement for lease, so long as he can do so at the date he executes the lease: De Medina v Norman (1842) 9 M and W 820; 152 ER 347’. More specifically, his Honour continued: ‘Therefore, if at the time the agreement to lease was made Brunswick’s title was in any way deficient, that did not justify Shock’s withdrawal from negotiations on 23 June. The common law was modified by the Vendor and Purchaser Act 1874 (44 and 45 Vict c 41, s 13), the present Victorian counterpart of which is s 44(2) of the Property Law Act 1958, but not in a fashion that assists Shock’s present submission.’ Nevertheless, on the reasoning in De Medina v Norman, which applies the general distinction in

conveyancing law between a contract to grant freehold or leasehold title and the instrument of assurance itself, it would seem [page 100] that the answer to this question depends on which of the Masters v Cameron categories (see above) the particular agreement for lease falls into. For example, if the parties never intend the execution of a formal lease but, rather, intend to rely on the agreement for lease itself as the ‘instrument of assurance’, the time at which the landlord’s title would need to be tested is at the time the agreement was made, or at the commencement of the agreed term if it is other than at that time. This view is supported by the comments made in Ingram v Inland Revenue Commissioners [1997] 4 All ER 395 (CA) where it was emphasised that the existence of a lease in equity as a result of the application of the doctrine of Walsh v Lonsdale depends not only on the agreement being specifically enforceable but also upon the existence of sufficient right or interest in the purported ‘grantor’ to support the necessary decree for specific performance (particularly Nourse LJ (with whom Evans LJ agreed) at 408); and see [4.8].

Uncertainty [4.2] An agreement for a lease (and a lease) are subject to the rules governing contracts generally: Fletcher v Davies (1980) 257 EG 1149 (CA). Thus it is for a court to construe documents that have passed between an owner and intending lessee to determine whether there was a concluded agreement for lease: Ratto v Trifid Pty Ltd [1987] WAR 237; Fire and All Risks Insurance Co Ltd v Concorde Personnel Management Services Pty Ltd (1987) NSW ConvR ¶55-330; and see Copperart Pty Ltd v Bayside Developments Pty Ltd (1996) 16 WAR 396 (FC). An unconditional agreement evidenced by correspondence is sufficient: Niagara Therapy (UK) Ltd v Richard Shops Ltd, QB, 8 June 1981, unreported. A supposed agreement may suffer from the defect of uncertainty. As a general rule, courts are reluctant to hold void for

uncertainty any provision that was intended to have legal effect: Brown v Gould [1972] Ch 53; [1971] 2 All ER 1505 at 1507–8; see also [14.3]. Where possible, courts try to give effect to the bargain made between the parties and are very reluctant to find contracts void for uncertainty: see Hillas and Co v Arcos Ltd (1932) 147 LT 503; Charles Clay & Sons Ltd v British Railways Board [1971] Ch 725 at 732–4; York Airconditioning and Refrigeration (A/sia) Pty Ltd v Commonwealth (1949) 80 CLR 11 at 26; Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429; Brown v Gould [1972] Ch 53 at 56; Australian Broadcasting Commission v Australian Performing Rights Association Ltd (1973) 129 CLR 99 at 109–10 (per Gibbs J); Meehan v Jones (1982) 149 CLR 571; Copperart Pty Ltd v Bayside Developments Pty Ltd (1996) 16 WAR 396; Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326; (1992) Aust Contract R ¶90011; Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd (1994) 2 VR 106 at 130 (per Brooking J); Lend Lease Financial Planning Ltd v Southcap Pty Ltd (CA(Qld), 2 June 1998, unreported (BC9802393)); Wesfarmers Bunnings Ltd v Angus & Robertson Bookworld Pty Ltd [1998] VSC 101 at [45]–[65] (per Gillard J); Sportsvision Australia Pty [page 101] Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103; Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 462, [22] (per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Toll (FGCT) v Alphapharm (2004) 219 CLR 165 at [40] (per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Demtear Pty Ltd v Abelian Pty Ltd [2004] QSC 103 at [13]–[26] (per Muir J); Unique Lifestyle Investments Pty Ltd v Robertson [2005] VSC 347 at [88]–[94] (per DoddsStreeton J), affd [2007] VSCA 29; Patrick Corporation Ltd v Toll Holdings Ltd [2005] VSC 392 at [81]–[87] (per Dodds-Streeton J); (2005) 55 ACSR 386; Marsha Nominees Pty Ltd v Mobil Oil Australia Pty Ltd [2006] VSC 15 at [182]– [184] (per Hargrave J); and Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2013] VSC 614. Thus, in Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd, Barwick CJ said (at 436–7), ‘a contract is affected

by uncertainty only if its essential terms are uncertain or lacking’. Consequently, care should be taken to ensure that the parties have reached a concluded agreement and, if that agreement is required to be in writing, then such document should contain all the essential elements of the agreement: see [4.1] and [4.8]. As to the requirement that there be certainty of agreement in respect of terms of a lease, see [1.5]; and, on the question of construction of covenants, see [7.2]. Where a purported contract for the sale of land contained a stipulation that the purchaser should give a ‘lease’ on the land sold to any person who might purchase the business of the vendor and the contract did not specify or refer to the terms of the lease or make any provision for fixing them, it was held that the supposed contract was void for uncertainty: Duggan v Barnes [1923] VLR 27. An agreement for a lease, in order to be valid, must define the parties, the demised premises, the rent (if any) and the commencement and duration of the term: Harvey v Pratt [1965] 1 WLR 1025; see also Brikom Investments Ltd v Seaford [1981] 1 WLR 863, where part performance was relevant to fixing the commencement date of the term. Accordingly, a purported agreement for a lease will be bad if it fails to fix either expressly or by reasonable inference the date from which the term is to commence: Jopling v Jopling (1908) 8 CLR 33, or if it fails to define the duration of the term: King v McIvor (1883) 4 LR (NSW) 43; 4 ALT 153; Bishop v Taylor (1968) 118 CLR 518 at 523, or does not fix or make provision for the fixing of the rent: Beattie v Fine [1925] VLR 363. If there is agreement as to the terms of a lease, apart from a starting date, agreement as to an event that will trigger the start of the lease, and also manifestation of an intention to enter into a binding legal relationship, then the absence of an agreed starting date would not prevent there being an agreement for lease: see Azkanaad Pty Ltd v Galanos Bros Pty Ltd (No 2) [2008] NSWCA 185 at [45]; cf Pirie v Saunders (1961) 104 CLR 149 at 152. No agreement for lease is created where the alleged agreement is subject to qualifications which include ‘subject to mutual agreement re terms of lease’: Atkinson v Findon Shopping Centre Pty Ltd [1987] ACLD 403. Where the parties agreed upon the rent and the commencement and duration of the term, agreed that the tenant [page 102]

should not assign the lease and went on to agree that the lease should contain such other covenants and conditions as should be reasonably required by the landlord, it was held that the parties had reached a concluded agreement and that the last-mentioned provision was not too vague or widely drawn, but was sufficiently certain: Sweet & Maxwell Ltd v Universal News Services Ltd [1964] 3 All ER 30; [1964] 2 QB 699; see also [9.1], [14.3]. In Godecke v Kirwan (1973) 129 CLR 629; 1 ALR 457, Walsh and Gibbs JJ expressed different views as to whether or not there can be a binding agreement if some matter is left for the determination of one of the parties. Walsh J at CLR 642 said that providing matters are not left so that further agreement between the parties is necessary, ‘there is no reason in principle for holding that there cannot be any binding contract if some matter is left to be determined by one of the parties’. At CLR 646–7, Gibbs J expressed doubts about the correctness of that statement, but said that generally, if the matter in question is left for the determination of the solicitor acting for one of the parties to the contract, that, of itself, would not prevent the agreement from being a concluded one. In Peet & Co Ltd v Rocci [1985] WAR 164 it was held that a special condition precedent that the completed lease was to be to the satisfaction of the lessee’s solicitor was a contractual term and did not fail on the ground that it was to be regarded merely as the basis for a future contract (at 168–9). In Foster v Wheeler (1888) 38 Ch D 130; [1886–90] All ER Rep Ext 1567, the facts were unusual. The plaintiff was the tenant of ‘Cedar Lodge’ under a lease held of Dr Ord for a term which was about to expire. He made a contract with Miss Wheeler, the defendant, whereby she promised that she would within seven days enter into a binding agreement with Dr Ord for a lease of the premises from Dr Ord ‘at a rental of £140 per annum for such a term (to commence from 24 June next) and subject to such conditions as Dr Ord shall approve’. It was further agreed between the plaintiff and Miss Wheeler that upon the grant of the new lease to her the plaintiff should surrender his existing lease. Miss Wheeler refused to take a lease from Dr Ord, and the plaintiff brought an action claiming specific performance or damages. Kekewich J gave judgment for the plaintiff directing an inquiry as to damages, and this decision was affirmed by the Court of Appeal. The argument that the agreement was too indefinite to be enforced was rejected, Bowen LJ saying of the contention:

That is based upon a confusion of ideas, it proceeds on the assumption that we are discussing the terms as between Dr Ord and Miss Wheeler. Now suppose there was nothing further known about the terms of the lease than what we find in this agreement, there would be no agreement of which specific performance could be enforced against Miss Wheeler either in the way of specific performance or damages, but if the agreement furnishes a standard from which the terms can be ascertained, then the maxim id certum est quod certum reddi potest applies. Here there is a contract by Miss Wheeler to enter into an agreement the terms of which are to be dictated by Dr Ord. If a person will bargain that in seven days he will enter into an agreement for a lease on terms to be determined by AB and then refuses to do so, he must pay damages: (1888) 38 Ch D 130 at 133; [1886–90] All ER Rep Ext 1567. [page 103] Cotton LJ dealt with the point as follows at (Ch D) 131–2: The first clause of the agreement between the parties, subject to what I shall have to say as to its construction, contains a contract to enter into an agreement for a lease with a certain person, Dr Ord. If he had been a party to the contract, and had been coming to enforce it, it may be that it would be held to be too vague to be enforced, though I do not decide that it would. But it is an agreement with Mr Foster to enter into an agreement with Dr Ord to take a lease at a certain rental and from a certain day for such a term and subject to such covenants as Dr Ord shall approve, and if he fixes the terms and settles the covenants Miss Wheeler is bound to accept the lease. It was contended that to make a binding agreement Miss Wheeler and Dr Ord must agree as to the terms to be granted; and, no doubt, that would be necessary to enable Dr Ord to obtain specific performance of an agreement with himself. But as between the plaintiff and the defendant, if Dr Ord fixes the term the defendant is bound to accept a lease for that term and with such covenants as he determines.

Where the parties agree that the rent shall be a fair rent to be fixed by two indifferent persons, one to be chosen by each of them, and possession is given and taken without the rents having been so fixed, equity may enforce the agreement, referring it to the master to find the fair rent: Gregory v Mighell (1811) 18 Ves 328; 34 ER 341; Hall v Busst (1961) 104 CLR 206 at 223; [1961] ALR 508. Gregory v Mighell and the modern authorities received consideration in Australian Mutual Provident Society v Overseas Telecommunications Commission (Aust) [1972] 2 NSWLR 806; see also Brown v Gould [1972] Ch 53. In the latter case an option in a lease permitted the tenant to renew the lease for a further term ‘at a rental to be fixed having regard to the market value of the premises at the time of exercising this option taking into account to the advantage of the tenant any increased value of such premises attributable to structural improvements made by the tenant during the currency of this present lease’. No machinery for fixing rent was provided in the lease. It was held that the option was not void for uncertainty: see [14.3]. A contract for the sale of land contained the following special condition: Portion of the land sold is used for the sale of petroleum oils and greases and petroleum products of the Shell Co of Australia Ltd. The purchaser covenants that he will immediately upon taking possession hereunder grant a lease of that portion of the land sold as is now used for the sale of the above-mentioned products to the Shell Co of Australia Ltd upon terms that the said land leased as aforesaid be used by Shell or their subtenant or licensee for the sale of such products and upon such reasonable terms as commonly govern such a lease. In the event of any dispute between the parties as to the interpretation or operation of this clause such dispute shall be referred to an arbitrator to be appointed, failing agreement as to an arbitrator, by the President for the time being of the Law Institute of Victoria and such arbitrator shall arbitrate thereon in accordance with the provisions of the Arbitration Act 1958. The High Court held by majority in Whitlock v Brew (1968) 118 CLR 445, that the clause, and the whole agreement, were bad for uncertainty. Taylor, Menzies and Owen JJ said that:

[page 104] The first question to be considered is whether the contention that cl 5 is uncertain should be upheld. The appellant asserts that it should not and that, in effect, that clause simply provides that in the event of there being no agreement as to the terms of the contemplated lease, including both the period during which it is to subsist and the rent to be paid, the parties shall enter into a lease in the form settled by an arbitrator. Of course, if this were so the basis for the contention that the clause is uncertain would disappear. But the language of the clause does not permit this view. The lease is to be ‘upon such reasonable terms as commonly govern such a lease’ and in the event of a dispute ‘as to the interpretation or operation’ of the clause the dispute is to be referred to arbitration. We are firmly of opinion that the expression ‘upon such reasonable terms as govern such a lease’ is not, in the context in which it appears, apt to refer to either the period for which the contemplated lease is to subsist or to the rent to be payable thereunder. Nor do we think that the further expression ‘as to the interpretation or operation’ of this clause covers a dispute as to either of those matters. We, therefore, are of opinion that the clause is uncertain in that it neither specifies nor provides a means for the determination as between the parties of the period for which the contemplated lease shall be granted or the rent which shall be payable thereunder Whitlock v Brew (1968) 118 CLR 445 at 460; [1969] ALR 243 at 250–1. A contract for the sale of a business carried on upon rented premises provided that the vendor should allow the purchaser to remain tenant of the premises ‘while ever lessee of premises or if he becomes owner of same’. The provision was held not to be bad for uncertainty: Lakin v Mylecharane (1957) 57 SR (NSW) 33. The question whether an agreement for a lease is sufficiently certain often arises in consequence of the exercise of an option of renewal. A number of decisions dealing with uncertainty in relation to options of renewal are considered in [14.3]. Negotiations ‘subject to contract’ for the grant of a lease remain in a state of negotiation until exchange of lease and

counterpart: D’Silva v Lister House Development Ltd [1971] 1 Ch 17; [1970] 1 All ER 858.

Statute of Frauds [4.3] An agreement for a lease is caught by the Statute of Frauds 1677 s 4 (Conveyancing Act 1919 (NSW) s 54A; Property Law Act 1974 (Qld) s 59; Law of Property Act 1936 (SA) s 26; Conveyancing and Law of Property Act 1884 (Tas) s 36; Instruments Act 1958 (Vic) s 126; Statute of Frauds 1677 s 4, as amended by the Law Reform (Statute of Frauds) Act (WA) 1962). For convenience, reference is made to the Victorian provision in the following pages. It should be noted that there is no equivalent in the other states to provisions which were contained in the Instruments Act 1958 (Vic) s 127 (which required written authority to any agent who signed) and which, together with s 126, have been re-enacted in modified form in one section, s 126; see Sale of Goods (Vienna Convention) Act 1987 (Vic) as a ‘contract or sale of lands, tenements or hereditaments or any interest in or concerning them’: see Abjornson & Urban Newspapers Pty Ltd [1989] WAR 191 (FC) where it was held that a notice to renew by the lessee which was out of time under the provisions of [page 105] the option to renew nevertheless provided sufficient writing, the notice having been orally accepted by the lessor. In any event, the authority of the agent must be clear: see Showa Shoji Australia Pty Ltd v Oceanic Life Ltd (1994) 34 NSWLR 548 at 568–9. Accordingly, except in a case where there has been part performance, an agreement for a lease cannot be enforced unless the agreement or some note or memorandum thereof is in writing and signed by the party to be charged or his or her agent. In Victoria if the signature is by an agent, the agent must be authorised in writing signed by the party to be charged: Instruments Act 1958 (Vic) s 126 (by reason of this section now containing the former provisions of s 127, see above): compare the position

under s 53(1)(a) of the Victorian Property Law Act and corresponding provisions, see [1.6]. Where the manager of a company acting with due authority signs a lease in that capacity, such writing satisfies s 126 of the Instruments Act. In those circumstances, no written authority to him or her (as agent) is necessary under that section because in so signing the lease he or she has not acted as the company’s agent. Rather, the lease was executed by the company, its execution being authenticated by the manager’s signature: Richardson v Landecker (1950) 50 SR (NSW) 250; see also 195 Crown Street Pty Ltd v Hoare [1969] 1 NSWR 193; Ivermee (Third Party) [1969] 1 NSWLR 193; Bayside Developments Pty Ltd v Copperart Pty Ltd (1994) 11 SR (WA) 316 (WA, Dist Crt). Every agreement for a lease is caught by the Statute of Frauds; it matters not that the interest agreed to be created is not a great one; even an agreement to create at some future time a weekly tenancy must, in the absence of part performance, be contained in or evidenced by a signed writing: Haselhurst v Elliot [1945] VLR 153 at 155. Paradoxically, while an agreement to create in the future a weekly tenancy will not in the absence of part performance be enforceable if it is merely oral, an oral lease taking effect in possession for a term not exceeding three years at the best rent which can be reasonably obtained without taking a fine is good: s 54(2) of the Victorian Property Law Act and its equivalents; Haselhurst v Elliot; Dennis & Copley v Eddie [1952] VLR 92 at 99; see further [1.6]. The extent of the operation of s 126 of the Victorian Instruments Act 1958 in the present context, and the reasons for its application to agreements for lease but not to the lease itself, was examined in Laserbem Pty Ltd v Gainsville Investments Pty Ltd [2004] VSC 62. In this respect, Kaye J said (at [33]): Section 126 only applies to agreements for lease. On a proper construction of s 126, the phrase ‘or other disposition’ is dependent on the phrase, immediately before it, ‘upon a contract for …’. In other words, s 126 provides that an action may not be brought to charge a person upon (inter alia) a contract for the sale, or a contract for other disposition of an interest in land. That construction follows from the following considerations: (i)

As a matter of syntax, the phrase ‘or upon a contract for the’ must

govern, not only the next word ‘sale’, but also the phrase ‘or other disposition’. If the words ‘or other [page 106] disposition’ were not governed by the words ‘upon a contract for the’, s 126 would be unintelligible and would read as follows: An action must not be brought … upon … other disposition … (ii) The exception to the operation of s 126 — ‘unless the agreement on which action is brought, or a memorandum or note of the agreement …’ — clearly connotes that s 126 applies to agreements (or contracts), including contracts for the disposition of an interest in land, as distinct from the actual disposition of the interest itself. (iii) The first part of s 126 relates to a ‘special promise to answer for the debt, default or miscarriage of another person’. It thereby reinforces the notion that s 126 is intended to apply to promises or contracts. (iv) Historically s 126 of the Instrument Act derives from s 4 of the Statute of Frauds 1677. That section was concerned with actions brought to enforce a variety of parol promises and contracts. On the other hand, ss 1, 2 and 3 of the Statute of Frauds, which were the predecessors of, but in different terms to, ss 53 and 54 of the Property Law Act were concerned with leases and other dispositions of land. Continuing, Kaye J said (at [34]): In particular, the reported authorities have assumed a dichotomy between ss 1 and 2 of the Statute of Frauds (and the successors to those sections) which were concerned with leases, and s 4 of the Statute of Frauds (and its successors) which has been regarded as being applicable to contracts for leases; see for example Ryley v Hicks [(1725) 1 Str 651;

93 ER 760]; Inman v Stamp [(1815) 1 Stark 12; 171 ER 386] …; Edge v Strafford [(1831) 1 C & J 391 at 397; 148 ER 1474]. Further, there are dicta in the authorities which also expressed the view that ss 52 to 54 of the Property Law Act (or the equivalent thereto) apply to leases and dispositions of property, whereas s 126 of the Instruments Act only applies to agreements to lease; see Dennis and Copley v Eddie [(1952) VLR 92 at 99]; Abjornson v Urban Newspapers Pty Ltd [(1989) WAR 191 at 200]; Kewley v Ball [(1913) VLR 413 at 415 and 416] (I note that an unrelated dictum in this last decision was disapproved by the High Court in Perpetual Executors and Trustee Association of Australia Ltd v Russell [(1931) 45 CLR 146]). See Long v Tower Hamlets London Borough Council [1998] Ch 197 for a most comprehensive review of the English legislation and authorities in this respect; and see Evans v Athedim (Vic) Pty Ltd (2000) V ConvR ¶54-613 (CA) at [20]– [22] (per Batt JA); and Duff v Blinco [2006] QCA 497; and [1.6]. As to the relationship between provisions of property law legislation with respect to writing and other requirements (such as the Victorian Property Law Act 1958 s 53, and the Western Australian Property Law Act 1969 s 34) and the Statute of Frauds provisions, see Ratto v Trifid Pty Ltd [1987] WAR 237 at 258 (per Brinsden J); and Bayside Developments Pty Ltd v Copperart Pty Ltd, above, at 327; and see [1.6]. An agreement for a licence is not required to be evidenced in writing, for it is not an agreement for the creation of an interest in land: Wells v KingstonUpon-Hull Corporation (1875) LR 10 CP 402. [page 107]

Memorandum and signature [4.4] In order to comply with the Statute of Frauds provisions (see [4.3]), the memorandum must state all the essential terms of the contract, that is to say: (i) the parties;

(ii) the consideration; (iii) the property to be demised; (iv) the term and its commencement; (v) any special conditions or stipulations which have been agreed upon. The statute is heavily encrusted with decisions dealing with the sufficiency of the note or memorandum; it is not proposed to discuss these here. The Statute of Frauds requires only that there should be an agreement or memorandum signed by the party to be charged; the party seeking to enforce the agreement need not himself or herself have signed: Laythoarp v Bryant (1836) 2 Bing (NC) 735; 132 ER 283. As to the distinction between a memorandum or note of an agreement and the written agreement itself, see O’Young v Walter Reid and Co Ltd (1932) 47 CLR 497 at 513 (per Evatt J); and Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191 at 203 (FC) (per Franklyn J), referring to O’Young; and see Greig and Davis, Law of Contract, pp 693–5. Although a sufficient memorandum may be constituted by more than one document, and parol evidence is admissible to identify a transaction referred to in a document, the memorandum however constituted must contain all the essential, and relevant, terms; with possibly fatal doubt arising in relation to the latter aspects where the contents of a document or documents relied upon by way of memorandum do not reflect any alleged oral contract: see One Stop Lighting (Queensland) Pty Ltd v Lifestyle Property Developments Pty Ltd (1999) Q ConvR ¶54-527 at [30]–[35] (per Chesterman J); and see Smith v Lush (1952) 52 SR (NSW) 207 at 210 (per McLelland J). A written offer which is accepted orally and subsequently acted upon is sufficient: see Pirie v Saunders (1961) 104 CLR 149 at 154 (per Dixon CJ and Fullagar, Kitto, Taylor and Menzies JJ); and G and E Avakoumides Pty Ltd v Commonwealth Funds Management [2004] NSWSC 711 at [17] (per Windeyer J); and see Azkanaad Pty Ltd v Galanos Bros Pty Ltd (No 2) [2008] NSWCA 185 at [45]; and [4.2] where reference is made to Azkanaad in the context of uncertainty with respect to the commencement of a lease term. Where a lease contains an option of renewal and this option is exercised by a notice signed by an agent of the lessee who has not himself or herself been authorised in writing as required by s 126, the agreement for a lease resulting from the exercise of the option will not, in the absence of part performance, be

enforceable against the lessee; it will, however, be enforceable against the lessor, provided that the original lease was signed by him or her or by his or her agent authorised in writing: [page 108] Healy v Southern Milk Transport Pty Ltd [1954] VLR 448 at 459. The content of the essential terms of an enforceable agreement for lease will, naturally, depend upon the particular circumstances: see NZI Insurance Australia Ltd v Baryzcha (2003) 85 SASR 497 (FC) at 506 ([30]–[39]), set out in part at [4.8].

Part performance [4.5] In some cases equity will intervene to compel performance of an agreement notwithstanding the absence of a note or memorandum in writing. Courts of equity will not permit the statute to be made an instrument of fraud: Maddison v Alderson (1883) 8 App Cas 467 at 474; [1881–85] All ER Rep 742. The fraud which causes equity to intervene is fraud of a special kind, namely, fraud arising from ‘part performance’ of the contract, or, in other words, part execution of the agreement. The jurisdiction to compel performance of an agreement struck at by the statute does not arise unless the bargain in fact made has been so acted upon by partly performing it that for the defendant to recede from it at that stage would be a fraud on the plaintiff: Cooney v Burns (1922) 30 CLR 216 at 232–3; 28 ALR 181 (per Isaacs J); and see J C Williamson Ltd v Lukey (1931) 45 CLR 282 at 300 (per Dixon J). The doctrine of part performance was evolved by the courts of equity to prevent a defendant escaping from a contract on the defence of lack of a statutory requirement of writing when the plaintiff had done something in performance of his or her obligations thereunder which rendered it unconscionable for a defendant to rely upon the want of form, that is to say, the party seeking the performance of a contract which should have been, but was not evidenced by writing had to show some act of performance on his or her part: Colman v Golder [1957] VR 196 at 197–8.

The acts relied upon as part performance must be unequivocally, and in their own nature, referable to some such agreement as that alleged: Maddison v Alderson. By ‘some such agreement as that alleged’ is meant some contract of the general nature of that alleged: McBride v Sandland (1918) 25 CLR 69 at 78; Francis v Francis [1952] VLR 321 at 340; Regent v Millett (1976) 133 CLR 679, especially at 683 (per Gibbs J); and Ratto v Trifid Pty Ltd [1987] WAR 237 at 258 (per Brinsden J). The House of Lords in Steadman v Steadman [1976] AC 536 held that in order to establish facts amounting to part performance it is necessary for the party relying on such acts to establish that he or she had acted to his or her detriment and that the acts in question were such as to indicate on the balance of probabilities that they had been performed in reliance on a contract made with the party claiming the protection of the statute which was consistent with the contract alleged. There is no general rule that the payment of a sum of money could never constitute part performance so that in certain circumstances the payment may be taken into account in determining whether or not the agreement had been partly performed. Referring to the authorities, Chesterman J said in [page 109] One Stop Lighting (Queensland) Pty Ltd v Lifestyle Property Developments Pty Ltd (1999) Q ConvR ¶54-527: In order that acts may be relied on as part performance of an unwritten contract, they must be done under the terms and by force of that contract and they must be unequivocally and in their nature referable to some contract of the general nature of that alleged. Per Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 432. The converse of the proposition appears, as Hill J pointed out in ANZ Banking Group Ltd v Widin (1990) 26 FCR 21 at 34, in Dale v Hamilton [5 Hare 369 at 381] 67 ER 955 at 960: But an act which, in truth done in pursuance of a contract, admits of explanation without supposing a contract, is not, in general, admitted to constitute an act of part performance

taking the case out of the Statute of Frauds; as, for example, the payment of a sum of money, alleged to be purchase money. In J C Williamson Ltd v Lukey (1931) 45 CLR 282, Dixon J said at 300: The acts of part performance must be such as to be consistent only with the existence of a contract between the parties, and to have been done in actual performance of that which in fact existed. And see Laserbem Pty Ltd v Gainsville Investments Pty Ltd [2004] VSC 62 at [53] and [54] (per Kaye J). The acts relied upon as part performance must have been done by the person seeking specific performance, and the other party must have permitted it to be done on that footing: McBride v Sandland, above, at 79; and see Kalnenas v Kovacevich [1961] WAR 188; Ratto v Trifid Pty Ltd, above, at 258; Bayside Developments Pty Ltd v Copperart Pty Ltd (1994) 11 SR (WA) 316 (Dist Crt, WA); and Laserbem Pty Ltd v Gainsville Investments Pty Ltd at [53] and [54] (per Kaye J). Acts done by the person against whom the agreement is sought to be enforced cannot be relied upon as part performance: King v Grimwood (1891) 17 VLR 253 (overruled and not followed, respectively, on other grounds in Rosser v Austral Wine & Spirit Co Pty Ltd [1980] VR 313 (FC); and Di Biase v Rezek [1971] 1 NSWLR 735 (CA) at 742–3); Guest v Watson (1891) 17 VLR 497. Further, the act relied upon must be a part execution of the substance of the agreement and not merely of matters preparatory or ancillary to performance, and the act relied upon must have involved, on the part of the person doing it, a change of position in relation to the subject matter of the contract of such a character that he or she would be unfairly prejudiced if the other party were to take advantage of the absence of written evidence: Francis v Francis, above, at 340. Payment or acceptance of a varied rent may be sufficient: see Bayside Developments Pty Ltd v Copperart Pty Ltd at 332–3. However, it follows that there must be an unconditional agreement for lease (or an actual lease) in existence which may be partly performed: see Budmore Pty Ltd v Johnson (1993) 6 BPR 97,486; and see [1.5]. See further [4.6] and [4.7].

[page 110]

Taking of or continuance in possession [4.6] The delivery and taking of possession of the premises on the faith of the agreement will ordinarily be sufficient: M’Bean v Brown (1887) 13 VLR 726; Mortal v Lyons (1858) 8 1 Ch R 112; Pain v Coombs (1857) 1 De G & J 34; 44 ER 634; Gilbey v Cossey (1912) 106 LT 607; [1911–13] All ER Rep 644; Brough v Nettleton [1921] 2 Ch 25; Colman v Golder [1957] VR 196. However, possession in circumstances where the agreement for lease, or lease, is subject to preconditions which have not been met will not without more (such as waiver or estoppel; but as to the latter, see [1.15]) have any significance: see Budmore Pty Ltd v Johnson (1993) 6 BPR 97,486. In that case it was held that the tenant’s possession, commencement of building work and moving goods into the premises indicated merely that the tenant was prepared to take the risk in the expectation that the lease would be signed. See also [1.5]. More difficult questions may arise in the case of an agreement for a lease resulting from the exercise of an option of renewal, for in such a case the tenant will ordinarily not enter into, but continue in possession. In Re National Savings Bank Association; Brady’s case (1867) 15 WR 753, mere continuance in possession at the same rent was held not to be sufficient; compare Humphreys v Green (1882) 10 QBD 148 at 156 where Baggallay LJ said, in relation to Nunn v Fabian (1865) 1 Ch App 35; [1861–73] All ER Rep Ext 1378, that the continued possession of the plaintiff alone was not a sufficient part performance of the agreement for a new lease, for it was equally consistent with his continuing in possession under his previous tenancy. Dowell v Dew [1842] 1 Y & C Ch Cas 345; [1843–60] All ER Rep 1084, is sometimes cited as authority for the view that mere continuance in possession may be a sufficient act of part performance; in that case, however, there was in fact a sufficient memorandum under the Statute of Frauds, so that the observations on part performance were mere dicta; further, the tenant had not merely remained in possession, but had on the faith of the agreement for a new lease

cultivated the farm in a different manner and with different expenditure than he would have done had he been compelled to quit at the end of the term. Continuance in possession will be sufficient if it does not stand alone, but is coupled with payment of rent at a varied rate (Strachan & Co Ltd v Lyall & Sons Pty Ltd [1953] VLR 81; Kalnenas v Kovacevich [1961] WAR 188; Bayside Developments Pty Ltd v Copperart Pty Ltd (1994) 11 SR (WA) 316 (WA, Dist Crt)); or with payment of rates which previously were not paid by the tenant: Strachan & Co Ltd v Lyall & Sons Pty Ltd. See further Commonwealth Oil Refineries Ltd v Hollins [1956] VLR 169, where Sholl J was concerned with the position of a tenant who had gone into possession before the making of the agreement and continued in possession after the agreement had been made. His Honour held that, although an entry into possession before agreement cannot be referred to the agreement and is therefore insufficient, nevertheless evidence [page 111] of continuance in such possession after agreement, or of allowing continuance in possession after agreement, was, especially when combined with the payment and receipt of rent, capable of constituting sufficient evidence of part performance. In Darcy v Ryan (1882) 8 VLR (Eq) 36, the plaintiff had acted upon the agreement by taking possession, fencing off and occupying; with some doubt, Molesworth J decreed specific performance. In Thomas v R (1905) 2 CLR 127, the tenant continued in possession, paid the old rent and paid in addition interest at the rate of 6% on the value of certain improvements made by the lessor. He alleged that there had been part performance of a verbal agreement whereby he was to have a further lease for seven years at the former rent together with 6% interest on the value of the new improvements. In fact, a special agreement (that is to say, an agreement distinct from the agreement for a further lease for seven years) had been made for the payment of interest upon the value of the improvements. In these circumstances there was no sufficient act of part performance; the continuance in possession and the payment of rent at the former rate were equally referable to the expired lease and the payment of interest was equally referable to the

special agreement; in other words, none of the acts relied upon was unequivocally referable to the agreement for a new lease. See also Evans v Athedim (Vic) Pty Ltd (2000) V ConvR ¶54-613 (CA).

Alterations to premises [4.7] The mere fact that the intending landlord expends money in making alterations to the premises is not enough, for such an act is equally referable to the landlord’s ownership of the premises: Whittock v Mozley (1883) 1 Cab & El 86; Rawlinson v Ames [1925] Ch 96 at 114; but see Steadman v Steadman [1976] AC 536. On the other hand, if improvements, alterations or repairs are carried out by the intending landlord at the request of the tenant, the agreement for a lease may be held to have been sufficiently performed. Such a case was Rawlinson v Ames, above, where Romer J dealt with the point as follows (at 114): Now the mere fact that the plaintiff converted part of her premises into the flat and expended money thereon is not only referable to a contract such as that alleged. It is equally referable to her ownership of the premises. Nor would this improvement by the plaintiff of her own property be such an act as to render it a fraud in the defendant to take advantage of the contract not being in writing. It is, however, to be observed that in the present case the plaintiff in altering her premises and expending the money in the alterations was doing so in accordance with requests and suggestions made to her or her employees from time to time by the defendant. It appears to me that this fact necessarily suggests the existence of some such contract as alleged. I think that any one on the spot who saw what was being done and the way in which it was being done would inevitably have come to the conclusion that the defendant must have a contract giving her some interest in the property. The act of the plaintiff in submitting, so far as she did submit, to the more or less constant interference of the defendant and in adopting, as from time to time she did adopt, the suggestions made by the defendant

[page 112] and in acceding, as she did accede, to the requests made by the defendant as to the method in which the flat should be constructed, are, in my opinion, referable only to a contract such as that alleged. In the somewhat similar case of Kaufman v Michael (1892) 18 VLR 375 the plaintiff agreed to let a house to the defendants, who were husband and wife. When this verbal agreement for a lease was made the defendants gave to the plaintiff a list signed by them of alterations which they wished to be made to the house. Among these alterations was the papering of a room with paper to be chosen by the wife and the removal of a hall lamp and water-heating apparatus from the premises which the defendants were then occupying and their installation at the subject premises. The wife selected a wallpaper to her taste, and the plaintiff had it hung and also carried out all other alterations. A’Beckett J concluded that the alterations made by the plaintiff on the faith of the agreement entitled him to have it enforced. If a tenant in possession acts on the faith of an agreement to grant him or her a further term and lays out money on the property, he or she may be in a position to enforce the agreement: Williams v Evans (1875) LR 19 Eq 547; Steadman v Steadman, above: but compare Budmore Pty Ltd v Johnson (1993) 6 BPR 97,486; see also [4.6]. A striking case is Polleyket v Georgeson (1878) 4 VLR (Eq) 207, where inconvenience suffered by the tenant was regarded as sufficient. There the plaintiff was the defendant’s tenant of a hotel for a term of three years. Four months before the expiration of the term the parties verbally agreed that a further lease should be granted, and the landlord was permitted to enter to paint and repair for the preservation of the property. The landlord entered accordingly, and by his workmen carried out repairs for a period of one month. The landlord’s men also entered and painted, causing inconvenience to the tenant. The tenant brought a successful suit for specific performance, alleging that he had suffered great inconvenience and damages as a result of the work, to which, as the defendant knew, he would not have submitted, but for the agreement to renew. Similarly, if a person is led to believe by the owner of land that he or she will be granted a lease of it and in anticipation of such grant and with the

approval of the owner he or she takes possession of the property and spends money on improving it, then a court of equity is likely to give effect to such a promise or expectation: Ramsden v Dyson (1866) LR 1 HL 129 at 170; Plimmer v Mayor of Wellington (1884) 9 App Cas 699; Timber Top Realty Pty Ltd v Mullens [1974] VR 312 at 317–18; cf Guilfoyle Pty Ltd v National Mutual Life Association of Australasia (2000) V ConvR ¶54-622 (CA).

The doctrine of Walsh v Lonsdale [4.8] Under the doctrine of Walsh v Lonsdale (1882) 21 Ch D 9 (CA), since the fusion of law and equity, a tenant holding under an agreement for a lease of which specific performance would be decreed is, generally speaking, in the same position as [page 113] if the lease had been executed. This so-called doctrine is founded upon the following statement of Sir George Jessel MR in Walsh v Lonsdale (at 14–15): There is an agreement for a lease under which possession has been given. Now since the Judicature Act the possession is held under the agreement. There are not two estates as there were formerly, one estate at common law by reason of the payment of the rent from year to year, and an estate in equity under the agreement. There is only one Court, and the equity rules prevail in it. The tenant holds under an agreement for a lease. He holds, therefore, under the same terms in equity as if a lease had been granted, it being a case in which both parties admit that relief is capable of being given by specific performance. That being so, he cannot complain of the exercise by the landlord of the same rights as the landlord would have had if a lease had been granted. On the other hand, he is protected in the same way as if a lease had been granted; he cannot be turned out by six months’ notice as a tenant from year to year. He has a right to say, ‘I have a lease in equity, and you can only re-enter if I have committed such a

breach of covenant as would if a lease had been granted have entitled you to re-enter according to the terms of a proper proviso for reentry.’ That being so, it appears to me that being a lessee in equity he cannot complain of the exercise of the right of distress merely because the actual parchment has not been signed and sealed. The appeal in Walsh v Lonsdale was from an order granting interlocutory relief (by Fry J). Although the other members of the Court of Appeal (Cotton and Lindley LJJ) agreed with the Master of the Rolls their attention was (as was that of Fry J) directed to the terms of the agreement for lease and maintenance of the status quo pending trial (see Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 250). In spite of these considerations which may, strictly, limit the authority of Walsh v Lonsdale the doctrine has generally been accepted and over a long period of time (see Seton’s Judgments and Orders, 7th ed, pp 2205–9); no doubt due, in part, to the standing of Sir George Jessel as an equity judge. The doctrine is an application of the maxim that equity considers as done that which ought to be done: see Todburn Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 97,333 at 11,174; and see Ingram v Inland Revenue Commissioners [1997] 4 All ER 395 (CA) where it was emphasised that the existence of a lease in equity as a result of the application of the doctrine of Walsh v Lonsdale depends not only on the agreement being specifically enforceable but also upon the existence of sufficient right or interest in the purported ‘grantor’ to support the necessary decree for specific performance (particularly Nourse LJ (with whom Evans LJ agreed) at 408); cf Brunswick Development Pty Ltd v Shock Records Pty Ltd (1999) V ConvR ¶54604; and see [4.1]. As to the need for agreement as to essential terms as a prerequisite to any order for specific performance, see NZI Insurance Australia Ltd v Baryzcha (2003) 85 SASR 497 at 506 (FC), below. In more recent times the nature of the interest of a person who was ‘tenant’ under an agreement for lease was considered by the Supreme Court of New South Wales. In Baxton v Kara [1982] 1 NSWLR 604 it was argued, for the lessor, that the lessee should be denied specific performance as a result of approximately an 18 month [page 114]

delay taking action to protect his rights. It was argued that he should have sought an order for specific performance, directing an exchange of executed parts of the deed of lease. In spite of the fact that, due to an oversight, this had not occurred, the parties had clearly acted on the basis that it had. Cross J, at 607, had no difficulty in reaching the view that there existed an agreement for lease in the terms of the draft deed. In rejecting the lessor’s argument Cross J adopted Fry on Specific Performance, paras 1110–1111, pp 517–18: Where the contract is substantially executed, and the plaintiff is in possession of the property, and has got the equitable estate, so that the object of his action is only to clothe himself with the legal estate, time either will not run at all as laches to debar the plaintiff from his right, or it will be looked at less narrowly by the Court; per Lord Redesdale in Crofton v Ormsby 2 Sch & Lef 604, for the plaintiff has not been sleeping on his rights, but relying on his equitable title, without thinking it necessary to have his legal right perfected. See Cartan v Bury 10 I Ch R at 395; Homan v Skelton 11 I Ch R at 96. Therefore, where a tenant holds under a contract for a lease, pays his rent, and has possession of the property and the enjoyment of all the benefits given him by the contract, the effluxion of time will not be a ground for resisting its enforcement: Clarke v Moore, 1 Jon & L 723; Sharp v Milligan, 22 Beav 606 (affirmed by the LJJ); Shepheard v Walker LR 20 Eq 659, and so, where there was a contract for the lease of a shop and the sale of the stock, and the stock had been paid for, the plaintiff had been put into possession as lessee, and the rent had been paid — in fact, everything had been done but the execution of the lease, which the defendant had refused to execute on a ground which was untenable — specific performance of the lease was granted, notwithstanding considerable laches on the part of the plaintiff subsequent to the defendant’s refusal, but therefore without costs: Burke v Smyth, 3 Jon & L 193. See also Ridgway v Wharton 6 HLC 292 (per Lord St Leonards); and consider Brophy v Connolly, 7 I Ch R at 177; Finucane v Turner, 13 I Ch R 488 at 494. As is clear from the decision in Baxton v Kara a crucial issue was whether

specific performance of the agreement for lease could be granted and, in particular, whether the defence of laches could be raised against the plaintiff. It is often overlooked with respect to the doctrine of Walsh v Lonsdale that generally the only matter of any real interest to the parties is whether the agreement for lease is enforceable. Indeed, given the nature of the equitable jurisdiction it is difficult to see how it is possible to separate as some abstract concept the classification of the rights of the parties under an agreement for lease from its enforcement. If a court of equity will not enforce an agreement for lease (which is not enforceable at law by reason of failure to comply with formal requirements: see [1.6]) there is, effectively, no estate or interest. These general issues were considered by the High Court in Chan v Cresdon Pty Ltd in relation to the doctrine of Walsh v Lonsdale. In Chan v Cresdon Pty Ltd the High Court (Mason CJ and Brennan, Deane and McHugh JJ in a joint judgment) referred to Walsh v Lonsdale but noted with reference to [page 115] authorities (at 168 CLR 250–1) the view ‘championed’ by Lords Lindley and Parker, at 250: ‘… that a lease and an agreement for lease are two different things which can only be equated in equity for certain purposes if equity would decree specific performance of the agreement’. Their Honours concluded that the weight of English authority was against Sir George Jessel, but noted as an authority against this trend the House of Lords decision in United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 at 924–5 and 944–5 (see at 168 CLR 251). Reference was made to decisions of the High Court with respect to the doctrine (at 168 CLR 251–2), namely: Redman v Permanent Trustee Co of NSW Ltd (1916) 22 CLR 84 at 96; National Trustees, Executors and Agency Co of Australasia Ltd v Boyd (1926) 39 CLR 72 at 82; York House Pty Ltd v Federal Commissioner of Taxation (1930) 43 CLR 427 at 435–6; Williams v Frayne (1937) 58 CLR 710; and Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 26–7. Their Honours made a general point and particular points in relation to these decisions. Generally (at 168 CLR 251): ‘… this Court, while acknowledging that an agreement for a

lease will be treated as giving rise to a lease in equity in accordance with the doctrine in Walsh v Lonsdale, has always rejected the notion that the lessee has a legal interest in the term.’ And more particularly (at 168 CLR 252–3): For present purposes these authorities establish two propositions. First, the court’s willingness to treat the agreement as a lease in equity, on the footing that equity regards as done what ought to be done and equity looks to the intent rather than the form, rests upon the specific enforceability of the agreement. Secondly, an agreement for a lease will be treated by a court administering equity as an equitable lease for the term agreed upon and, as between the parties, as the equivalent of a lease at law, though the lessee does not have a lease at law in the sense of having a legal interest in the term. The first proposition requires some elaboration or qualification in order to accommodate what has been said in later cases. Although it has been stated sometimes that the equitable interest is commensurate with what a court of equity would decree to enforce the contract, whether by way of specific performance (Connolly v Ryan [(1922) 30 CLR 498 at 506–7]; Brown v Heffer [(1967) 116 CLR 344 at 349]; Chang v Registrar of Titles [(1976) 137 CLR 177 at 184–5, 189–90]), injunction or otherwise (Tailby v Official Receiver [(1888) 13 App Cas 523 at 546–9]; Redman v Permanent Trustee Co [(1916) 22 CLR at 96]; Legione v Hateley [(1983) 152 CLR 406 at 446, 456]), the references in the earlier cases to specific performance should be understood in the sense of Sir Frederick Jordan’s explanation adopted by Deane and Dawson JJ in Stern v McArthur [(1988) 165 CLR 489 at 522]: Specific performance in this sense means not merely specific performance in the primary sense of the enforcing of an executory contract by compelling the execution of an assurance to complete it, but also the protection by injunction or otherwise of rights acquired under a contract which defines the rights of the parties: … ‘Chapters on Equity in New South Wales’, Select Legal Papers, 6th ed, 1947, p 52, n (e). In relation to the second proposition stated above Maitland, in his

Lectures on Equity, 2nd ed, 1936, p 158, in a statement quoted by Latham CJ in Williams v Frayne ((1937) 58 CLR at 720), commented: [page 116] An equitable right is not equivalent to a legal right; between the contracting parties an agreement for a lease may be as good as a lease … But introduce the third party and then you will see the difference. See also Chronopoulos v Caltex Oil (Aust) Pty Ltd [(1982) 70 FLR 8 at 1516; 45 ALR 481 at 489]. [Emphasis added.] The remaining issue was the effect of treating the agreement as a lease in equity with respect to remedies at law. With apparent approval reference was made to the following statement (at 168 CLR 253–4): … in Manchester Brewery Co v Coombs [[1901] 2 Ch 608 at 617], Farwell J observed that the application of the doctrine in Walsh v Lonsdale: … involves two questions: (1) Is there a contract of which specific performance can be obtained? (2) If Yes, will the title acquired by such specific performance justify at law the act complained of, or support at law the action in question? It is to be treated as though before the Judicature Acts there had been, first, a suit in equity for specific performance, and then an action at law between the same parties; and the doctrine is applicable only in those cases where specific performance can be obtained between the same parties in the same court, and at the same time as the subsequent legal question falls to be determined. His Lordship plainly considered that, if specific performance could be so obtained, then the agreement for lease was enforceable between the parties as a lease at law, as though the lease had been granted

pursuant to the agreement before the decree for specific performance [[1901] 2 Ch at 618]. The operation thus attributed to the Judicature Acts had the effect of enabling a party to an agreement to enforce, against another party to the agreement, legal remedies in respect of equitable rights and interests. In this respect the English cases referred to in the preceding paragraph proceed on the footing that the Judicature Acts have a procedural operation. This can be demonstrated by reference to the fact that, although there is no recorded instance of a court of equity exercising a jurisdiction to make an order for the payment of rent under an equitable lease, there was a jurisdiction to backdate specific performance to enable an action to be brought at law on the covenants in the lease. Nevertheless the authorities indicate that the jurisdiction to ‘backdate’ specific performance is to be exercised sparingly (see 168 CLR 254–5). For a discussion of procedure and appropriate orders, see Seton’s Judgments and Orders, paras 2205–2209. Chan v Cresdon Pty Ltd has been distinguished when, unlike the position in that case, the guarantee provides that it should bind the parties as if the lease had been registered: see Karacominakis v Big Country Developments Pty Ltd (2000) 10 BPR 18,235; [2001] ANZ ConvR 513; [2001] ANZ ConvR 577 (CA) (per Giles JA (with whom Handley and Stein JJA agreed) at [101], referring to Telado Pty Ltd v Vincent (1996) NSW ConvR ¶55-786). As to Chan v Cresdon Pty Ltd generally, see Butt (1990) 64 ALJ 353. Generally as to the application of the doctrine of Walsh v Lonsdale, see Moore v Dimond (1929) 43 CLR 105 at 112, 114 (and see [2.8] and [2.15]); Downie v Lockwood [1965] VR 257 (and see [6.8]); Charmar Electrical Pty Ltd v Minda Incorporated (1990) [page 117] 55 SASR 112 (FC) at 117–18; Wu v Glaros (1991) 55 SASR 408 (and see [6.8]); Todburn Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 97,333 at

11,174; S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd (1994) 122 ALR 637 at 656; Bayside Developments Pty Ltd v Copperart Pty Ltd (1994) 11 SR (WA) 316 (Dist Crt, WA); Marshall v Snowy River Council (1994) 6 BPR 97,483 (per McLelland CJ in Eq); and Telado Pty Ltd v Vincent (1996) 7 BPR 14,874 (CA); cf Robinson v Young [2005] NSWSC 777 (and see [6.8]). An agreement for lease may contain a condition precedent to its completion by execution of a lease at law. It is a question of construction and of fact whether a party seeking to avoid the agreement can rely on the conditions: see Peet & Co Ltd v Rocci [1985] WAR 164 at 168–70. As to the application of the doctrine to an oral agreement to assign a lease, see McMahon v Ambrose [1987] VR 817. Thus a tenant under an agreement for a lease may obtain an injunction to restrain the lessor from granting a lease to a third person which would defeat his or her own equity: City of Melbourne Gold Mining Co v R (1867) 4 WW & a’B (Eq) 148 at 156. The tenant may plead his or her equitable term as a defence to an action for the recovery of land brought in the Supreme Court and, if the tenant is sued in a magistrates’ court, he or she may set it up as ‘reasonable cause why possession should not be given’ within the meaning of s 33 of the Landlord and Tenant Act 1958 (Vic) (a provision empowering a magistrates’ court to issue a warrant for possession, in summary proceedings; repealed as from 1 September 2012 — see LL&T Comparative Table): Dalton v O’Gorman [1921] VLR 599; Healy v Southern Milk Transport Pty Ltd [1954] VLR 448. He or she may also bring an action for specific performance, and this remedy will be granted in a proper case even where the agreement is for a very short term (Lever v Koffler [1901] 1 Ch 543) or about to expire (see S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd at 122 ALR 656, applying Chan v Cresdon Pty Ltd at 168 CLR 254–5) but see [13.5]. Such a tenant may also obtain relief against forfeiture for non-payment of rent (Greenwood Village Pty Ltd v Tom the Cheap (WA) Pty Ltd [1976] WAR 49) or damages for breach of the agreement where the premises had been relet: Warwick Grove Pty Ltd v Wright (1976) 1 SR (WA) 69 (Dist Crt, WA). The equitable term which the tenant enjoys under Walsh v Lonsdale will not prevail against a bona fide purchaser for value of the legal estate without notice, either actual or constructive, of the equitable estate: see Chan v Cresdon Pty Ltd at 168 CLR 253, above. As to this, where the tenant is in possession,

protection is afforded by the rule in Hunt v Luck [1902] 1 Ch 428; [1900–03] All ER Rep 295, whereby possession of land by a tenant affects a purchaser of the land with notice of all that tenant’s rights. Section 42(2)(e) of the Transfer of Land Act 1958 (Vic) protects the interest of a tenant in possession of land under the operation of that Act: see Real Property Act 1900 (NSW) s 42(1) (d); Land Title Act 1994 (Qld) s 185(1)(b); Real Property Act 1886 (SA) s 69(h); Land Titles Act 1980 (Tas) s 40(3)(d); Transfer of Land Act 1893 (WA) s 68. [page 118] Regardless of the existence of divergent positions as to the effect of an agreement for lease it is clear that questions of specific performance will not arise unless the agreement for lease is complete in that it contains all the essential elements of an enforceable agreement for lease, viewed in the context of the particular circumstances: see NZI Insurance Australia Ltd v Baryzcha (2003) 85 SASR 497 (FC). The position in this respect was concisely stated by Debelle J (with whom Duggan and Williams JJ agreed) at 506 ([30]–[39]), particularly as follows: [31] The only essential characteristic of a lease is that it should give the right of exclusive possession of premises to a tenant: Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47 at 49; Francis Longmore & Co Ltd v Stedman [1948] VLR 322 at 323; Lewis v Bell (1985) 1 NSWLR 731 at 734. Although a lease usually provides for rent, the reservation of rent is not an essential element: Landale v Menzies (1909) 9 CLR 89 per Griffiths CJ at 100–101, per Barton J at 111; Commonwealth Life (Amalgamated) Assurance Co v Anderson (above) at 49; Burns v Dennis (1948) 65 WN(NSW) 55 at 56; Francis Longmore & Co Ltd v Stedman (above) at 323. However, where the intended landlord seeks payment of monies as consideration for allowing the intended tenant to occupy the premises, rent is an essential term of the contract: Harvey v Pratt [1965] 2 All ER 786 per Lord Denning MR at 788; Copperart Pty Ltd v Bayside Developments Pty Ltd (1996) 16 WAR 396 per Murray J at 408. It follows that where rent is payable as

consideration for the occupation of premises, the essential elements of an enforceable agreement for a lease are that the agreement identifies the parties to the lease; identifies the land or premises the subject of the lease; enables the commencement and duration of the term to be clearly ascertained; and enables the rent to be ascertained. See Harvey v Pratt (above) and Copperart Pty Ltd v Bayside Developments Pty Ltd (above). In this case, it is possible to identify the parties, the premises the subject of the lease and the duration of the term and its commencement. The question is whether the parties have agreed the rent. And see Woodford Nominees Pty Ltd v Masjakan Medical Pty Ltd [1998] ANZ Conv Rep 254 (CA(Qld)) where it was found that no binding agreement for lease had been made because, in the particular circumstances, there had been no agreement as to an essential term, namely the annual rent payable; also Demtear Pty Ltd v Abelian Pty Ltd [2004] QSC 103 at [20]–[26] (per Muir J); though, as Demtear indicates, the failure to agree on an essential term will not give rise to fatal uncertainty if, first, the parties have agreed a mechanism for determining it or, second, reference to some objective criteria or standards enables the court to make a determination (per Muir J, at [20], referring to Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 at 605 and 610–17; Attorney-General v Barker Bros Ltd (1976) 2 NZLR 495; and The Queensland Electricity Generating Board v New Hope Collieries Pty Ltd (1989) 1 Ll Rep 205 at 210 as authorities in support of the first [page 119] proposition and Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444 in support of the second). Muir J, in Demtear, also made reference to the illusory contract argument: [21] The illusory contract argument is based on dicta of Gibbs J in Godecke v Kirwan [(1973) 129 CLR 629] where, after noting that

parties to a contract may leave essential terms for determination by a third person, including the solicitors for one of the parties, his Honour said [at 646–7] — I should perhaps make it clear that it does not necessarily follow from what I have said that an agreement which left further terms to be settled by one of the parties, rather than by his solicitors, would be treated as a concluded contract. In May and Butcher Ltd v The King ((1934) 2 KB, at p 21), Viscount Dunedin suggested that a sale of land which left the price to be settled by the buyer himself would be good. With great respect, it seems to me that there would be no binding contract in such a case, which would fall within the principle that ‘where words which by themselves constitute a promise are accompanied by words which show that the promisor is to have a discretion or option as to whether he will carry out that which purports to be the promise, the result is that there is no contract on which an action can be brought’ [Reference to authorities omitted.] It might be suggested that the same principle would not apply if the determination of the price were left to the seller, for then it would be the promisee, not the promisor, who was left with the discretion as to performance. However, in Beattie v Fine ((1925) VLR 363), Cussen J drew no such distinction and held that an option for renewal ‘at a rental to be agreed upon by the lessor’ did not give rise to any contractual obligation. [22] The plaintiff placed reliance on Kabwand Pty Ltd v National Australia Bank Ltd [(1989) ATPR ¶40-950], in which the court, after referring to uncertainty arising through the parties’ failure to agree on a fundamental term and as a result of a party being left to choose whether he will perform it, said — A third but related principle is that there can be no concluded bargain if a vital matter has been left to the determination of one of the parties: Godecke v Kirwan (1973) 129 CLR per Gibbs J at p 647.

… Reference to the above passage from Gibbs J’s reasons in Godecke v Kirwan reveals that his Honour did not state the principle in such unqualified terms. [23] Kitto J, in Placer Development Ltd v The Commonwealth [(1969) 121 CLR 353 at 356], identified the principle in these terms — It is that wherever words which by themselves constitute a promise are accompanied by words showing that the promisor is to have a discretion or option as to whether he will carry out that which purports to be the promise, the result is that there is no contract on which an action can be brought at all. The succinct statement of the principle in Leake on Contracts, 3rd ed, p 3: ‘Promissory expressions reserving an option as to the performance do not create a contract’ was approved by the Lord Justice, as it was later by Lord Wright in Hillas and Co Ltd v Arcos Ltd (1932) 147 LT 503, at p 517. [page 120] [24] It is impossible to fit within these principles a clause which permits a lessor to relocate a tenant to another premises in the same complex, not more than 10 percent smaller or larger and ‘as nearly as possible comparable’ to the old premises. [25] Williams J observed in York Air Conditioning [and Refrigeration (Australasia) Pty Ltd v Commonwealth (1949) 80 CLR 11 at 29. See also Lombard Tricity Finance Ltd v Paton (1989) 1 All ER 918] — But there is no reason why the parties to a contract should not agree that the determination of some of the incidents of the contract should be left to the decision of a third party or to one of themselves. Following on from this discussion, reference should be made to [11.7] and [14.7] in relation to the provision, or otherwise, of an ‘entire mechanism’ for

rent review and provisions for determination of rent by a third party, respectively. See also Insearch Ltd v Kin Hing Pty Ltd [2004] ANZ ConvR 111 where the repeated use by the parties of the words ‘subject to lease’ and the absence of agreement on a variety of matters upon which it was found the parties would have required agreement led to the finding that the parties had failed to reach an agreement even within the, so called, fourth category of Masters v Cameron (1954) 91 CLR 353; and see Wesfarmers Bunnings Ltd v Angus & Robertson Bookworld Pty Ltd [1998] VSC 101 at [45]–[65] (per Gillard J); and [4.1]. As to the doctrine of Walsh v Lonsdale in the context of equity generally, see Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 5th ed, [2270]–[2-315].

Damages [4.9] The circumstances in which damages may be recovered for the breach of an agreement for a lease which is struck at by the Statute of Frauds but saved by the operation of the doctrine of part performance are not clear. It is necessary to distinguish between damages at common law for breach of contract and damages under Lord Cairns’ Act, a distinction not always drawn in the cases. It is apprehended that the Statute of Frauds, if pleaded, will always be a defence to an action to recover damages at common law; in other words, the doctrine of part performance cannot be invoked to obtain common law damages. On the other hand, the doctrine of part performance can be relied upon in order to obtain damages under Lord Cairns’ Act, provided that the plaintiff is entitled to equitable relief. Lord Cairns’ Act provides that in all cases in which the court entertains an application for an injunction against a breach of any covenant contract or agreement, or against the commission or continuance of any wrongful act or for the specific performance of any covenant contract or agreement, the court may, if it thinks fit, award damages to the party injured either in addition to or in substitution for such injunction or specific performance. These damages may be assessed in such manner as the court directs. The opinion expressed above,

namely, that part performance will not support an action for damages at common law but [page 121] will support a claim for damages under the Act, provided that the plaintiff is entitled to equitable relief, is supported by J C Williamson Ltd v Lukey (1931) 45 CLR 282 at 293–5, 303, 306 and 311; [1931] ALR 157; Dillon v Nash [1950] VLR 293 at 300; O’Rourke v Hoeven [1974] 1 NSWLR 622; Ellul v Oakes (1972) 3 SASR 377 at 382–3. An award of damages was made by a’Beckett J in Kaufman v Michael (1892) 18 VLR 375, part performance having been established. It is not clear whether the award was viewed by the learned judge as an award of damages at common law or an award under the Act. The reference made to Lavery v Pursell (1888) 39 Ch D 508 and the fact that the plaintiff was offered the alternative of a decree of specific performance suggest that the award was made under the Act; on the other hand, the observation that ‘the court can now administer both law and equity’ might be thought to suggest that damages were being awarded at common law. In M’Bean v Brown (1887) 13 VLR 726, the Full Court upheld an award of damages made in reliance upon part performance; the award so upheld appears to have been an award of common law damages. The judgment of Wells J in Ellul v Oakes (1972) 3 SASR 377 at 394–5 appears to proceed upon the basis that part performance will support an award of common law damages. Despite the decisions mentioned, it is submitted that the correct view is that a plaintiff who seeks to surmount the hurdle of the Statute of Frauds with the aid of part performance is restricted to obtaining damages under Lord Cairns’ Act and cannot obtain damages at common law.

Unenforceable agreement as a defence [4.10] Even though the agreement for a lease is in a form which does not satisfy the Statute of Frauds, a person who is in possession of land may rely upon the agreement as a defence to proceedings for the recovery of

possession, if he or she has partly performed the agreement, since equity will not permit the Statute of Frauds to be used as an engine of fraud. If there has been no sufficient act of part performance, there may, nonetheless, be some ground for refusing to permit a party to rely upon the statute. It may be that the absence of a sufficient writing cannot be relied upon by a party whose fraudulent conduct has prevented the drawing up of a sufficient writing. As to this, see Williams, The Statute of Frauds, pp 223 and following. Further, a person may, by his or her acts and words, so conduct himself or herself as to estop him or her from saying that a written contract is not a sufficient memorandum: Ford v Young (1882) 8 VLR (Eq) 93. The question which now arises is whether, where there is no sufficient act of part performance and no other ground for refusing to give effect to the Statute of Frauds, a party to an agreement for a lease may, nonetheless, rely upon that agreement as a defence in proceedings for the recovery of possession of the land, on the ground that to rely on the agreement by way of defence is not to bring an action charging the other party upon the agreement. In Kewley v Ball [1913] VLR 412, the [page 122] defendant was the tenant of certain premises under a written lease for a term of two years. Before the expiration of that term the complainant verbally agreed with the defendant that the lease should be extended for a further period of two years. Notwithstanding this, the complainant took proceedings in a court of petty sessions to recover possession of the premises from the defendant upon the basis that the defendant had ceased to be entitled to possession upon the expiration of the original two-year term. Hodges J took the view that the defendant was entitled to rely upon the verbal arrangement that had been made, on the ground that in so doing the defendant was bringing no action, but was merely standing on the defensive. The decision was considered by the High Court in Perpetual Executors and Trustees Assoc of Aust Ltd v Russell (1931) 45 CLR 146; [1931] ALR 89. There the defendant was the plaintiff’s tenant for a term of three years; the defendant had a verbal option to purchase the land, and exercised this option.

Thereupon a contract of sale came into existence which was, by reason of the Statute of Frauds, unenforceable. It was argued for the defendant that, notwithstanding the absence of a memorandum, he was entitled to remain in possession, since he was not bringing any action and was relying upon a good, but unenforceable contract by way of defence. This argument was rejected, the High Court holding that the reasoning in Kewley v Ball could not be supported and that a claim unenforceable by an action because of the statute could not be enforced by counter-claim or defence either at law or in equity. There are a number of other decisions to the same effect: Gray v Ellis [1925] St R Qd 209; Mason v Stevens (1943) 60 WN (NSW) 70; Carter v Smith (1952) 52 SR (NSW) 290; 69 WN (NSW) 326; Osland v Foot (No 1) (1951) 69 WN (NSW) 320. In considering the decisions of the Supreme Court of New South Wales, it should be remembered that there were some particular problems that arose from the separate administration of law and equity in that state.

Action for specific performance [4.11] As to the jurisdiction to decree specific performance of an agreement for a lease, and the practice and procedure in an action for specific performance of such an agreement, see [13.2], [13.3], [13.5]–[13.9]; and see also Seton’s Judgments and Orders, pp 2205–9.

[page 123]

5 Capacity to Make and Take Leases Capacity to make and take leases [5.1] The general rule is that any person may make or take a lease. To this rule there are, however, still a number of exceptions, representing cases where capacity or power to grant or accept a lease is limited; certain former restrictions have been abolished by statute. It is proposed to consider the following cases: aliens; infants; persons of unsound mind; married women; the Crown; municipalities; statutory corporations; liquidators; receivers; trustees in bankruptcy; unincorporated associations; agents; persons granting leases to themselves; co-owners; mortgagors and mortgagees; trustees; personal representatives. As to the effect of granting a lease or sublease without the consent of the appropriate person as required by the terms of a statutory power to lease, see Palmdale Insurance Limited v Sprenger [1988] Qd R 414 and [15.16].

Aliens [5.2] Every alien friend resident in a state may acquire and hold and may convey or otherwise dispose of every description of property whether real or personal in the same manner as if he or she was a natural born subject of Her Majesty: Conveyancing Act 1919 (NSW) s 146A; Property Law Act 1974 (Qld) s 15A; Law of Property Act 1936 (SA) s 24; Aliens Act 1913 (Tas) s 3; Property Law Act 1958 (Vic) s 27; Naturalisation Act 1871 (WA) s 2. As to

the position of leases granted to alien enemies, see London & Northern Estates Co v Schlesinger [1916] 1 KB 20; Halsey v Lowenfield [1916] 2 KB 707; see further In the Will of Doig [1916] VLR 698. As to the acquisition of an interest in land by a ‘foreign person’ see Foreign Acquisitions and Takeovers Legislation Amendment Act 2015 (Cth), new ss 12 and 67 in the principal Act. [page 124]

Infants [5.3] A lease made by an infant is not void, but voidable by the infant during minority or within a reasonable time after coming of age: Crick v Murray (1882) 3 LR (NSW) (L) 20; Ketsey’s case (1613) Cro Jac 320; 79 ER 274; London and North Western Railway Co v McMichael (1850) 5 Ex 114; 155 ER 374. The lessee cannot avoid the lease: Zouch v Parsons (1765) 3 Burr 1794; 97 ER 1103; Gibbons v Wright (1954) 91 CLR 423 at 447; [1954] ALR 383. A lease to an infant stands in the same position: Davies v Beynon-Harris (1931) 47 TLR 424. These difficulties may be overcome by interposing trustees for the infant. In England, since the changes wrought in the land law by the Law of Property Act 1925, an infant is incapable of holding a legal estate in land; this radical difference from the Australian law must be borne in mind when making use of the English texts.

Persons of unsound mind [5.4] A lease made by or to a person of unsound mind may in an appropriate case be avoided by that person or their representatives (but not by the other party to the transaction: Gibbons v Wright (1954) 91 CLR 423 at 439; [1954] ALR 383). In considering the question of capacity, regard must be had to the subject matter of the particular case. The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires in relation to each particular matter or piece of business transacted

that each party shall have such soundness of mind as to be capable of understanding the general nature of what he or she is doing by his or her participation. The mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by the means of the instrument and may be described as the capacity to understand the nature of that transaction when it is explained: Gibbons v Wright (1954) 91 CLR at 437–8. That a person may be subject to the most bizarre delusions and yet be competent to execute a lease is shown by the case of Jenkins v Morris (1880) 14 Ch D 674. It is now settled that not only the contract but also the conveyance of a person of unsound mind is not void, but only (in appropriate circumstances) voidable at the option of that person or his or her representatives: Gibbons v Wright. What those circumstances are has yet to be finally determined. If the other party to the transaction knew the person with whom he or she was dealing to be of unsound mind, the right of avoidance will arise; it is not clear whether in the absence of such knowledge the existence of circumstances making the transaction unfair will suffice to give rise to the right: Imperial Loan Co v Stone [1892] 1 QB 599; [1891–94] All ER Rep 412; York Glass Co v Jubb (1925) 134 LT 36; [1925] All ER Rep 285; Gibbons v Wright at CLR 441 and 444. [page 125] The position of a person who is intoxicated at the time of the transaction is considered in Blomley v Ryan (1956) 99 CLR 362. A lease of the property of a mentally ill person may be granted under statutory powers in some states: NSW Trustee and Guardianship Act 2009 (NSW) s 16; Guardianship and Administration Act 1993 (SA) s 39.

Married women [5.5] A married woman is capable of acquiring, holding and disposing of any property whatsoever, of rendering herself and being rendered liable in respect of any contract, debt or obligation and of suing and being sued in respect of

any contract, debt or obligation, in all respects as if she were a feme sole: Married Women (Restraint upon Anticipation) Act 1952 (Qld) s 2; Law of Property Act 1936 (SA) s 92(1); Married Women’s Property Act 1935 (Tas) s 3; Marriage Act 1958 (Vic) s 156(1). Generally, see the legislation which derives from the Married Women’s Property Acts: Married Persons (Equality of Status) Act 1996 (NSW); Married Women’s Property Act 1890 (Qld); Law of Property Act 1936 (SA) ss 92–111; Married Women’s Property Act 1935 (Tas); Marriage Act 1958 (Vic) Pt VIII.

The Crown [5.6] The matter of Crown lands generally, including the grant of leases thereof, is dealt with under Crown lands legislation in the various states (see, for example, Crown Land Management Act 2016 (NSW) s 5.16; Land Act 1994 (Qld); Land Act 1958 (Vic)). It was long ago recognised that the relationship between the Crown and the holders of Crown lands under the Land Acts of the Australian states was of a contractual nature: Kickham v R (1882) 8 VLR (Eq) 1 at 6; O’Keefe v Williams (1910) 11 CLR 171 at 190; [1911] ALR 113. Accordingly, relief against forfeiture for nonpayment of rent may be granted to a tenant of the Crown: Kickham v R (1882) 8 VLR (Eq) 1; R v Dale [1906] VLR 662. It should be noted, however, that by s 146(6) of the Property Law Act 1958 (Vic) (the provision dealing with relief against forfeiture generally), the section shall not apply to leases by the Crown. For a discussion of the ambit and effect of the corresponding exclusion in New South Wales, see (1964) 38 ALJ 289; material differences between state legislation should be borne in mind in considering the suggestions contained in this article. From time to time reference will need to be made to transitional provisions in Crown lands or other legislation intended to re-vest property in a reconstituted corporation, the Crown, or a private purchaser of the reversion. For example, in Victoria, references in Crown leases to the now dissolved Board of Land and Works must be taken as [page 126]

references to the Minister of Lands: Re Automotive & General Industries Ltd’s Lease (SC(Vic), Adam J, 1 May 1970, unreported); see also Land Act 1958 (Vic) s 100. As to whether the Crown is the tenant where the premises in question have been leased pursuant to a document which names a minister as tenant, see Town Investments Ltd v Dept of Environment [1978] AC 359. Civil proceedings by and against the Crown are now dealt with in Crown Proceedings Act 1958 (Vic) Pt II. See corresponding legislation in other states: Crown Proceedings Act 1988 (NSW); Crown Proceedings Act 1980 (Qld); Crown Proceedings Act 1992 (SA); Crown Suits Act 1947 (WA). Some landlord and tenant legislation contains provisions which do not apply to the Crown; for example, the now repealed Pt V of the Landlord and Tenant Act 1958 (Vic) dealing with the control of rents and recovery of possession of prescribed premises (repealed as from 1 September 2012 — see LL&T Comparative Table), did not bind the Crown in right of the Commonwealth or of the state (s 50). The jurisdiction of the Supreme Court of New South Wales to entertain proceedings in ejectment by the Commonwealth was considered in Commonwealth v Anderson (1961) 105 CLR 303; [1961] ALR 354. Whether ‘landlord’ in a statutory provision included the Crown was considered in Commonwealth v Rhind (1966) 119 CLR 584; [1967] ALR 483. Quite apart from the question of the extent of provisions empowering the Crown to grant leases there are also limitations imposed by the doctrine of ‘executive necessity’, as to which see City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146 (FC) (at [43]–[59], particularly [43]–[46] (per Ipp J)): [43] This rule was stated by Rowlatt J in Rederiaktiebolaget Amphitrite v The King [1921] 3 KB 500 at 503 as follows: [I]t is not competent for the Government to fetter its future executive action which must necessarily be determined by the needs of the community when the question arises. It cannot by contract hamper its freedom of action in matters which concern the welfare of the State. [44] Earlier, in Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623 the House of Lords had expressed similar views. In Birkdale District Electric Supply Co v Southport Corp [1926] AC 355 at 364, it was held that a

local authority, entrusted by the legislature with powers and duties for public purposes, cannot divest itself of those powers and duties, and cannot enter into any contract or take any action incompatible with the due exercise of its powers or the discharge of its duties. Mason J in Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 cited Birkdale District Electric Supply Co Ltd v Southport Corp as authority in saying (at 74): There is a general principle of law that a public authority cannot preclude itself from exercising important discretionary powers or performing public duties by incompatible contractual or other undertakings. [45] Triggs v Staines Urban District Council [1969] 1 Ch 10 is a helpful example of the rule. A local authority reserved property owned by Triggs as proposed public open [page 127] space but agreed with him that the land should be released from reservation if it did not purchase the land by a certain time. The local authority also agreed that so long as the land was occupied by the existing tenants, it would not purchase the land either voluntarily or compulsorily during a certain period and would not make any claim for betterment. When Triggs died, his executor claimed declarations that the agreement was ultra vires the authority and void ab initio. Cross J agreed, saying (at 18): The council could not effectively contract not to exercise its statutory powers or to abdicate its statutory duties. Hence, Cross J found, following Birkdale District Electric Supply Co Ltd v Corp of Southport, that the promises made by the local authority were void and unenforceable against it. [46] The rule of executive necessity is of application in the present case as, at the relevant times, by s 7 of the Town Planning Act, the City

had the power, to be exercised in the public good, to make or amend a town planning scheme, and the term contended for by Heytesbury and upheld by White J would impinge on the City’s freedom of action in so exercising its powers. That is to say, were the leases to be construed so as to contain a promise by the City that the lessee would have the quiet enjoyment of the leased premises for the purpose of conducting a manufacturing business thereon, the City would have committed a breach of contract by procuring the enactment of the Town Planning Amendment.

Municipalities [5.7] Wide leasing powers are conferred upon municipalities by local government legislation. For example, in Victoria, municipalities may let on lease any land to any person for a term of 50 years or less and subject to any exceptions, reservations, covenants and conditions: Local Government Act 1989 s 190(1) and (2). Under s 190(2) a municipal council is required to give public notice of certain proposed leases. Section 190(4) enables a person to make submissions in relation to the proposed lease. Provision is also made for the granting of leases (with or without consideration) to the Crown, a Minister of the Crown, a public body, trustees appointed under any Act to hold the land on trust for public or municipal purposes, or any hospital: s 191. The effect of the grant of a lease by a municipality without the approval of the Executive was considered in Queensland Television Ltd v Federal Commissioner of Taxation (1969) 1 ATR 419; 119 CLR 167 (as to the effect of a lease granted other than in accordance with statutory enabling provisions, see [5.8]). The council may not agree that its tenant should not pay rates, although it may agree that he or she need pay the rates in consideration of a specified rent, so that the rates are deducted from the rent and credited to the tenant as paid by him or her: Mayor of Bendigo v Burke [1917] VLR 531. In City of Melbourne v Holdenson and Nielson Fresh Foods Pty Ltd [1959] VR 626 at 633, an express power to grant leases conferred upon the City of Melbourne was held to carry with it the implied right to terminate such leases. Quite apart from the question of the extent of provisions empowering municipalities to grant leases there

[page 128] are also limitations imposed by the doctrine of ‘executive necessity’, as to which see City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146 (FC)(at [43]–[59], particularly [43]–[46] (per Ipp J); and see [5.6].

Statutory corporations [5.8] Statutory corporations are persons under a disability: R v Registrar of Titles; Ex parte Commonwealth (1915) 20 CLR 379 at 404; 21 ALR 435 (per Powers J). For it is a rigid principle that where an Act of Parliament creates a corporation the creature of the particular statute is to be deemed to have only those powers which are conferred upon it by the statute, and everything else is prohibited: Ashbury Railway Carriage & Iron Co v Riche (1875) LR 7 HL 653; [1874–80] All ER Rep Ext 2219; Re Metropolitan Permanent Building & Investment Society (1881) 7 VLR (Eq) 87. It follows from this principle that such a corporation can grant or accept leases only if power to do so is expressly or by implication conferred by the relative statute. Express power to grant and take leases is almost invariably conferred upon a corporation by the statute creating it, although sometimes only a limited power is given. If a statutory corporation other than a company incorporated under the Corporations Act grants a lease in excess of the statutory powers conferred upon it, as by granting a lease for a term greater than that authorised, the lease is wholly void; moreover, in such a case a plea of estoppel cannot be set up: Simpson v Dunedin Drill Shed Commissioners (1885) 3 NZLR 402, Otago Harbor Board v Spedding (1885) 4 NZLR 272; Rhyl Urban District Council v Rhyl Amusements Board [1959] 1 WLR 465; Sutherland Shire Council v James [1963] NSWR 1573; 63 SR (NSW) 273; and see Misiaris v AFC Holdings Pty Ltd (1988) 15 NSWLR 231 at 236–7; but compare Starr v Barbaro (1986) NSW ConvR ¶55-315 where Powell J made orders granting a licence to lessees under a prohibited lease in circumstances which required the conclusion that the lessees had an equity in the property. In the case of a company incorporated under the Corporations Act, the company’s constitution will often be found to contain a power to grant and

accept leases, although this is no longer necessary in view of s 124 of the Corporations Act which provides that ‘a company has the legal capacity and powers of an individual both in and outside this jurisdiction’. This general power is nevertheless subject to any prohibitions or restrictions on the exercise of any power contained in the company’s constitution (see s 125(1) and (2) of the Corporations Act). The rule in Royal British Bank v Turquand (1856) 6 E & B 327; 119 ER 886 (the ‘indoor management’ rule) was applied so as to make a lease binding on a company notwithstanding some irregularity with respect to the exercise of a power: Plomley v T K Steanes Ltd (1898) 19 LR (NSW) 215. The question of whether the company intended to enter into a lease or an agreement for a lease might be resolved by ascertaining the intention of the company: H L Bolton [page 129] (Engineering) Co Ltd v T J Braham & Sons Ltd [1957] 1 QB 159; [1956] 3 All ER 624; Poppett’s (Caterers) Ltd v Maidenhead Corp [1971] 1 WLR 69. See now Corporations Act ss 125 and 129(4). Quite apart from the question of the extent of provisions empowering statutory corporations to grant leases there are also limitations imposed by the doctrine of ‘executive necessity’, as to which see City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146 (FC)(at [43]–[59], particularly [43]–[46] (per Ipp J); and see [5.6]. It may also be necessary to consider whether a lease granted by a company while otherwise authorised is nonetheless struck at by some principle of company law. Where a company which had erected a building of flats contracted to grant to each holder of certain of its shares a lease for 99 years of one of such flats at a rental to be fixed each year by the directors of the company at an amount sufficient only to meet outgoings with some provision for a reserve fund, but not including any amount as landlord’s reward, the grant of the lease was held to amount to a return of capital to shareholders and to be ultra vires the company even though such an arrangement was expressly authorised by the company’s memorandum of association: Jenkins v Harbour View Courts Ltd [1966] NZLR 1. See s 123(12) and (13) of the Companies

Code and see the article by Cassidy in (1970) 1 ACLR 72: see now s 258B of the Corporations Act. So far as the matter of form is concerned, at common law a lease by a corporation must as a general rule be made by deed: R v Chipping-Norton (1804) 5 East 239; 102 ER 1061. In the case of a company incorporated under the Corporations Act, any contract, including a lease, which if made between private persons might be validly made by mere writing or by parol, may be made on behalf of the company in the manner which would bind such persons: Corporations Act s 126 (formerly Companies Act 1961 s 35). For an example of the application of s 35 of the Companies Act 1961 to a lease, see 195 Crown St Pty Ltd v Hoare [1969] 1 NSWR 193. A British corporation, if so empowered by its Act of incorporation or other charter, is capable of holding land in Victoria: Re Transfer from Balfour to Public Trustee [1916] VLR 397. By s 601CY of the Corporations Act a registered foreign company may hold land. An express power to grant leases conferred upon a corporation may be held to carry with it an implied right to terminate them: City of Melbourne v Holdenson and Nielson Fresh Foods Pty Ltd [1959] VR 626 at 633. As to whether a lease sealed by a company may be regarded as executed only as an escrow, see D’Silva v Lister House Development Ltd [1971] 1 Ch 17; [1970] 1 All ER 858. An ‘exempt public authority’ is not a corporation for the purposes of the Corporations Act: ss 9 and 57A(2). As to the meaning of a ‘public authority’, see Re Honey Pool of Western Australia (1988) 6 ACLC 208 (SC(WA)); and see Electricity Trust of South Australia v Linterns Ltd [1950] SASR 133. [page 130]

Administrators and liquidators [5.9] Administrators may seek directions under s 90–20 of the Insolvency Practice Schedule (Corporations) of the Corporations Act 2001 (Cth) (Sch 2 of that Act) in relation to how to deal with a lease by a company in administration; which may include an order for leave to assign the lease under s 442C: see In the matter of Brickworks Markets Pty Ltd (subject to a deed of

Company Arrangement) (FCA, Mansfield J, 21 April 1997, unreported). Should the company continue to use or occupy property under an agreement existing before administration, administrators are liable for rent after a seven-day period, from the date of administration, expires: s 443B(2). Administrators are not, however, taken to have adopted the agreement: s 443B(9). Administrators may avoid such liability by serving a notice on the owner or lessor within the first seven days of the administration stating that the company does not intend to exercise or assert any rights in relation to the property and specifying the location of the property, if the administrator has knowledge, whether constructive or actual, of that location: s 443B(3). However, any notice will lose its effect if the administrator revokes the notice or the company exercises, or purports to exercise, a right against the owner or lessor. The liability to pay rent may also be discharged if a receiver is appointed to the particular property; or a secured party takes possession or control of the property; or the court excuses the administrators from the liability: s 443B(7), (8). see Featherby v Read [2002] WASC 251 and Nardell Coal Corporation Pty Ltd (in liq) v Hunter Valley Coal Processing Pty Ltd (2003) 46 ASCR 467 for applications of s 443B(8). The powers of a liquidator are dealt with by ss 477 and 506 of the Corporations Act 2001 (Cth). By s 477(2)(m), the liquidator may do all such other things as are necessary for winding up the affairs of the company and distributing its property. This power is wide enough to cover the leasing of property of the company in an appropriate case: Re Premier Permanent Building Society (1890) 16 VLR 643. It has also been held that, as long as the granting of leases is a step in the carrying on of a business for the purposes of s 477(1) (a), that provision is wide enough to permit the granting of leases without having to rely on s 477(2)(m): Warne v GDK Financial Solutions Pty Ltd (2006) 233 ALR 181 at 193. Leasing is prima facie inconsistent with liquidation, however, and the liquidator may grant leases only where to do so is advantageous to the liquidation: Re Federal Bank of Australia Ltd (1895) 6 BC (NSW) 3. If the lessee is a company and goes into liquidation, the lessor may not prove for future rent and at the same time keep the term outstanding: Commissioner of Stamp Duties v Brasch (1937) 57 CLR 69 at 86; [1937] ALR 246. The disclaimer by a liquidator of an onerous lease held by the company is dealt with at [16.25].

The liability of a liquidator for rent accrued since the commencement of the winding up was considered in Re ABC Coupler & Engineering Co Ltd (No 3) [1970] 1 All ER 650; see further Re Downer Enterprises Ltd [1974] 1 WLR 1460. [page 131]

Receivers [5.10] A receiver, or receiver or manager, appointed by the court cannot grant a lease without the sanction of the court: Corporations Act 2001 (Cth) s 420(2)(b); Re Cripps [1946] Ch 265; see further Kerr and Hunter on Receivers and Administrators, (19th ed, 2010) pp 201–3. Where the court specifically lists the powers (but not all) from s 420(2) of the Corporations Act 2001 (Cth) under its orders, the order shall be read as restricting the powers of the receiver to those under the order: Australian Securities & Investment Comm v Australian Investors Forum Pty Ltd (2003) 44 ACSR 503; [2003] NSWSC 130. The powers of a receiver, or receiver and manager, appointed by the holder of a debenture are also to be ascertained by reference to that instrument: Corporations Act 2001 (Cth) s 420(2). This will often confer upon the person so appointed a power of leasing the mortgaged property. Note also the provisions of s 99(17) of the Property Law Act 1958 (Vic). (See also Conveyancing Act 1919 (NSW) s 106(16), whereby the mortgagee may delegate to the receiver his or her power of leasing.) Problems arise in practice with regard to premises occupied by companies over whose assets a receiver is appointed, the question usually being whether the receiver is liable for rent. A receiver, whether appointed by the court or appointed by a debenture-holder, is not by reason merely of his or her appointment liable for the rent of premises leased to the company of which he or she has been appointed receiver: Hay v Swedish & Norwegian Railway Co Ltd (1892) 8 TLR 775; Consolidated Entertainments Ltd v Taylor [1937] 4 All ER 432; Rangatira Pty Ltd v Viola Hallam Ltd [1957] NZLR 1188. As to the effect of, or a possible means of avoiding the consequences of, the appointment of a receiver of an intermediate landlord by directing subtenants to pay rent direct to the superior

landlord, see Rhodes v Allied Dunbar Pension Services Ltd [1989] 1 All ER 1161 (CA); discussed in All ER Rev 1989 p 191. By statute, any receiver or other authorised person entering into possession of any assets of a company for the purpose of enforcing any charge shall, notwithstanding any agreement to the contrary, but without prejudice to his or her rights against the company or any other person, be liable for debts incurred by him or her in the course of the receivership or possession for services rendered, goods purchased or property hired, leased, used or occupied: Corporations Act 2001(Cth) s 419(1). Under section 419A, a controller (defined as a receiver, or receiver and manager, in relation to property of a corporation under s 9) is required to pay rent where the company, under a pre-existing agreement before the control date, occupies, uses or remains in possession of property leased from a third party. The controller’s liability to pay rent is triggered after a seven-day period, from the date of the controller’s appointment, expires: s 419A(2). Despite this liability to pay rent, it should also be noted that the controller is not taken to have adopted the agreement: s 419A(8). In any case, the controller may avoid this liability by providing the owner or lessor notice of the appointment within the seven-day period, indicating the controller’s intent not to exercise rights over the property, and not to use the [page 132] property: s 419A(3). Under s 419A(7) the controller may also request the court to excuse it from liability, though the court will exercise its discretion within the scope and purpose of the act: see Nardell Coal Corporation Pty Ltd (in liq) v Hunter Valley Coal Processing Pty Ltd (2003) 46 ACSR 467 for application of s 419A(7). It should also be noted that any discharge of the receiver’s liability will leave the company’s liability unaffected.

Trustees in bankruptcy [5.11] By s 134(1)(ab) of the Bankruptcy Act 1966, a trustee in bankruptcy may, subject to the Act, lease any property of the bankrupt. The right of a

trustee in bankruptcy to disclaim an onerous lease held by the bankrupt is considered in [16.25]. Generally, see O’Donovan and Hammond, ‘Insolvency Aspects of Property Law’ (1993) 1 APLJ 211.

Unincorporated associations [5.12] A lease cannot be granted to an unincorporated association: Freeman v McManus [1958] VR 15, where the proceedings concerned a room at the Trades Hall alleged to have been let by the Melbourne Trades Hall Council to the Australian Labor Party. O’Bryan J held that this purported lease to an unincorporated body was a nullity, and accordingly (at 16 and 18) found it unnecessary to consider whether the Trades Hall Council (evidently also an unincorporated association) was, in view of its lack of legal personality, capable of granting a lease. Freeman v McManus was applied in Carlton Cricket etc Club v Joseph [1970] VR 487. A lease may be granted to trustees for an unincorporated body: Freeman v McManus at 18–19 and 21–2. Similarly, the rule that an unincorporated association may not hold a lease does not mean that partners may not be lessees. For in such cases the lease is merely one to an aggregate of individuals. What is not possible is the grant of a lease to a fluctuating body of persons, such as the members of an association from time to time. A lease may be granted to the members of a club or similar body only in the sense that the persons who were members at the time of the grant will remain the lessees notwithstanding that thereafter some of them may cease to be members and others may take their place (at 19). Where one partner purports to give or take a lease on behalf of the firm it may be necessary to consider whether he or she had express or implied authority to do so. In Sharp v Milligan (1856) 22 Beav 606; 52 ER 1242, the question of authority to take a lease was considered, while in Macky v Cafe Monico [1906] 25 NZLR 689, the matter for consideration was that of authority to grant a lease. Where partners take a lease as part of the partnership property or as an accessory to the trade carried on by them, equity will regard them as holding the lease as tenants-in-common: Cook v Rowe [1954] VLR 309 at 312. In Chan v Zacharia (1984) 53 ALR 417 it was held

[page 133] that a tenant held a new lease as a constructive trustee where he had obtained the new lease for himself rather than exercise an option for renewal of the former lease which was held with his former partner.

Agents [5.13] One person may authorise another to grant a lease on his or her behalf: Hamilton v Clanricarde (1762) 1 Brown 341; 1 ER 608. No particular form is required for the authority to grant a lease, unless the lease is to be by deed, in which case the authority must also be by deed: Berkeley v Hardy (1826) 5 B & C 355; 108 ER 132. Formerly a lease under seal executed by an agent was required to be executed in the name of the principal: Wilks v Back (1802) 2 East 142; 102 ER 323, but by ss 12 and 27 of the Power of Attorney Act 2014 (Vic), it is provided that the donee of a power of attorney may, if that person thinks fit, execute a deed in his or her own name and with his or her own seal: see Powers of Attorney Act 2003 (NSW) s 43; Power of Attorney Act 1998 (Qld) s 69; Powers of Attorney and Agency Act 1984 (SA) ss 5, 13; Powers of Attorney Act 2000 (Tas) s 23; Property Law Act 1969 (WA) s 84. Where a lease is executed by an attorney under power, but contains covenants in excess of such power the lease is void altogether and not merely as respects the excess. So where the agent was authorised to grant leases containing usual and reasonable covenants and executed a lease containing covenants which were found to be unreasonable it was held that the lease was altogether void: Blake v Lane (1876) 2 VLR (L) 54. A power of attorney gave the attorney full powers to lease land for as long a term as he thought fit and to sell it on such terms as he thought fit. A lease containing an option to purchase fell within the terms of this power: Rotorua and Bay of Plenty Hunt Club v Baker [1941] NZLR 669. A lease may be granted to one person as agent for another or others provided that the necessary authority exists. See Jarrott v Ackerley (1916) 85 LJ Ch 135, where Eve J observed that the supposed sublease could not be regarded as a lease to all the persons who were members of the society at the

time of its execution, since no one had undertaken or authorised any one on his or her behalf to undertake the obligations imposed on a lessee; compare Freeman v McManus [1958] VR 15 at 24. A mere collector of rents has no authority to create a tenancy: McCalman v Higgins [1960] NSWR 739; 78 WN (NSW) 603 at 607. The case of a lease taken by an agent as such is to be distinguished from the case where an agent obtains from his or her principal a lease which that person holds on his or her own behalf. Where this occurs, the agent may be required to show that he or she took no advantage of his or her position and that the transaction is perfectly fair and reasonable: Ormond v Hutchinson (1809) Ves 94; 33 ER 919; Selsey v Rhoades (1824) 2 S & S 41; 57 ER 260. As to the general statutory requirements with respect to an agent being properly authorised in writing to act, see [1.6] and [4.3]. [page 134]

Persons granting leases to themselves [5.14] As to whether persons may grant leases to themselves, or themselves and others, reference should be made to Parker v Sell (1890) 16 VLR 271; and also Rye v Rye [1962] AC 496, particularly at 514 where Lord Denning said: … I have come to the clear opinion that even under the [Law of Property Act 1925] a person cannot grant a tenancy to himself: for the simple reason that every tenancy is based on an agreement between two persons and contains covenants expressed or implied by the one person with the other. Now if a man cannot agree with himself, I do not see how he can grant a tenancy to himself. Is the tenancy to be good and the covenants bad? I do not think so. The one transaction cannot be split up in that way. The tenancy must stand or fall with the agreement on which it is founded and with the covenants contained in it: and as they fall, so does the tenancy. See also Kildrummy (Jersey) Ltd v Inland Revenue Commissioners [1990] STC

657; Grey v Ellison (1856) 1 Giff 438; 65 ER 990; and Joseph v Joseph [1967] Ch 78; see also [5.15]. As these cases indicate, the general position is that it is not possible for persons to grant a lease to themselves, if for no other reason than because persons cannot enforce covenants against themselves. The position is not changed where the parties to the purported lease are different persons but where the only function of the ‘landlord’ is to hold the beneficial interest in the ‘lease’ for the ‘tenant’: see Ingram v Inland Revenue Commissioners [1997] 4 All ER 395 (CA), particularly at 401 (per Nourse LJ) where the passage from the speech of Lord Denning in Rye v Rye, above, was adopted and applied.

Co-owners [5.15] Leases may be granted either by or to co-owners, and the co-owners may be either joint tenants or tenants-in-common. Throughout this discussion the expression ‘joint tenant’ is used with reference to co-ownership; a joint tenant in this sense may be either a landlord or a tenant, that is to say, one of the owners either of the reversion or of the term. It should be noted that the description ‘joint’ is often used merely to signify that the persons to whom it is applied are all parties to the one lease. So tenants-in-common who join in granting a lease of the premises may be described as ‘joint lessors’ (as in Rogers v Ventura [1955] VLR 139 at 140), and persons to whom a lease is granted may be described as ‘joint lessees’, notwithstanding that they hold the term as tenants-in-common. Such usage is confusing and ought to be eschewed, for it tends to suggest that the lessors (or lessees) concerned are not merely parties to the one lease, but also joint tenants in the strict sense. It is proposed to consider first the position of co-owners as landlords and then to consider their position as tenants. [page 135] When the granting of a lease by co-owners is under consideration, it is necessary to distinguish between the letting of the whole and the letting of the

respective shares of the lessors. Where land is owned by joint tenants, all may join to lease the whole to a stranger. Though upon a joint lease by joint tenants each may perhaps be regarded as demising his or her own share, this is not the only operation of such a lease; the true character of the demise is that the tenant holds, not merely the share of each, but the whole of all. See Doe d Aslin v Summersett (1830) 1 B & Ad 135; 109 ER 738, where the court, in holding that the demise operated in part as a demise by each of his or her own share, evidently treated the word ‘my’ in Littleton’s expression ‘per my et per tout’ as meaning ‘half’, and so fell into the error mentioned by Dixon J in Wright v Gibbons (1949) 78 CLR 313 at 330; [1949] ALR 287. In Doe d Aslin v Summersett it was held that a notice to quit given to the lessee by one joint tenant was effective to determine the tenancy, upon the ground that a periodic tenancy granted by joint tenants is a tenancy of the whole to continue until either the lessee or all the lessors choose to determine it by notice. See further Leek & Moorlands Building Society v Clark [1952] 2 QB 188; 2 All ER 492; and see Parsons v Parsons [1983] 1 WLR 1390; Annen v Rattee [1985] 1 EGLR 136 (CA). The parties may by agreement stipulate that all joint tenants must join in giving notice to quit to the lessee. Similarly, for example, the position may be affected by statute, as in Rogers v Ventura [1955] VLR 139, which established that the effect of the meaning of ‘lessor’ in s 37(3) of the Landlord and Tenant Act 1948 is to require a notice to quit to be given by all lessors (a provision repealed as from 1 September 2012 — see LL&T Comparative Table). A lease by joint tenants to one of their number is effective. This was so even at common law, notwithstanding the old rule that a person could not make a contract with him or herself, or with him or herself and others (Parker v Sell (1890) 16 VLR 271; Napier v Williams [1911] 1 Ch 361). These decisions treat the lessors other than the lessee as demising their undivided shares to their co-tenant. It has been suggested in a learned article by Buttery, ‘Leases by Joint Tenants’, (1944) 17 ALJ 292 at 294, that such leases may now be sought to be supported under s 72(4) of the Property Law Act 1958 (Vic), whereby two or more persons may convey any property vested in them to any one or more of themselves in like manner as they could have conveyed such property to a third party. By s 18, ‘convey’ includes lease. See further s 82, dealing with covenants and agreements entered into by a person with him or herself and another or others; and see Mendes Da Costa, ‘Co-ownership under Victorian Land Law’ (1961) 3 MULR 137, 306, 433,

especially 456–60. As to corresponding provisions in other states, see Conveyancing Act 1919 (NSW) ss 24, 44(2); Law of Property Act 1936 (SA) s 40(3); Conveyancing and Law of Property Act 1884 (Tas) s 62(2); Property Law Act 1969 (WA) ss 39, 44. The effect of a purported assignment by one joint tenant to another was considered in Burton v Camden LBC [2000] 2 AC 399 (HL). In relation to this issue Lord Millett said (at 408) (and, similarly, Lord Nicholls, at 405): [page 136] … the word ‘assignment’ is not a term of art. It denotes any conveyance, transfer, assurance or other disposition of property from one party to another. The essence of an assignment is that it operates to transfer its subject matter from the ownership of the assignor to that of the assignee. A lease is not an assignment, because it does not transfer any pre-existing property from the lessor to the lessee, but creates a new interest and vests it for the first time in the lessee. A purported assignment of the interest of one joint tenant to the other joint tenant does not constitute an assignment, because each of the joint tenants is already the owner of the whole. The so-called assignor has no separate interest of his own which is capable of being transferred to the other and which the other does not already own. None of this, of course, applies to a tenant in common, because he has a separate and distinct interest of his own which he can assign either to a third party or to his co-owner. Lord Nicholls made particular reference to Varley v Coppard (1872) LR 7 CP 505 where it was held that an assignment by one of two tenants-incommon to the other constituted a breach of the lease covenant not to assign: see [2000] 2 AC at 405. Tenants-in-common are incapable of jointly demising the whole: Doe d Poole v Errington (1834) 1 Ad & El 750; 110 ER 1394; Burne v Cambridge (1836) 1 M & Rob 539; 174 ER 185. A purported joint demise by tenantsin-common operates as a separate demise by each lessor of his or her

undivided share and as a confirmation of the demise by each of his or her companions: Burne v Cambridge, above; Thompson v Hakewill (1865) 144 ER 966 at 971; Henare Tomonana v Ormond (1878) 3 NZ Jur (NS) SC 86; Te Peehi v Smith (1909) 29 NZLR 160. Each co-owner, whether a joint tenant or a tenant-in-common, has the right to lease his or her share, and that co-owner may grant such a lease either to a stranger or to his or her companion: Leigh v Dickeson (1884) 15 QBD 60; [1881–85] All ER Rep 1099; Parker v Sell (1890) 16 VLR 271 at 277; Re Marcellos (1940) 41 SR (NSW) 154; Oates v Oates [1949] SASR 37; Frieze v Unger [1960] VR 230 at 245; but cf Burton v Camden LBC, above, in relation to the effect of a purported assignment by one co-owner to another. It is a vexed question whether a lease by a joint tenant to a stranger or to his or her companion severs the joint tenancy or merely suspends it during the continuance of the lease. See Oates v Oates [1949] SASR 37; Wright v Gibbons [1949] ALR 287; 78 CLR 313 at 330 (per Dixon J); Frieze v Unger [1960] VR 230 at 241–5; Lyons v Lyons [1967] VR 169 at 173; also see the article by Buttery in (1944) 17 ALI 292. The right of survivorship is above all that which differentiates the joint tenancy from the tenancy-in-common: Frieze v Unger [1960] VR 230; Eastgate v Equity Trustees Executors and Agency Co Ltd (1964) 110 CLR 275 at 282–3; [1964] ALR 1063. In reading English texts dealing with co-ownership it must be borne in mind that the Law of Property Act 1925 wrought radical changes in the land law, including the abolition of legal tenancies-in-common. A lease may be granted to several persons. Just as co-owners granting a lease may be either joint tenants or tenants-in-common, [page 137] so a lease may be granted to persons who bear either character. The general rule is that a lease to two is a lease to them as joint tenants both at law and in equity, but equity will, if circumstances show such was the intention, treat them as tenants-in-common. One well-established case where a tenancy-incommon will be held to exist in equity is where a lease is taken by partners as part of the partnership property or as an accessory to the trade carried on by

the partners. In such a case equity regards the lessees as tenants-in-common: Cook v Rowe [1954] VLR 309 at 312; compare Cunningham-Reid v Public Trustee [1944] KB 602; 2 All ER 6. As with freehold estates, the right of survivorship exists in the case of a leasehold estate held by joint tenants: Cunningham-Reid v Public Trustee [1944] KB 602; 2 All ER 6. As to the right to obtain contribution from the co-tenant where one tenant alone pays the rent, see Cunningham-Reid v Public Trustee, above. Where one of two joint tenants assigned his interest in the term to the other without the consent of the landlord, the covenant not to assign without such consent was broken: O’Mullane v Wilson (1856) 1 VLT 86. The authorities dealing with an assignment of his or her interest by one tenant-in-common to the other are considered in Cook v Rowe [1954] VLR 309. In a case where only one of the co-owners occupies the premises, he or she may, in certain circumstances, be required to pay rent for use and occupation to the other co-owner: Dennis v McDonald [1982] Fam 63. It would seem that where a periodic tenancy is granted to joint tenants any one of them may, unless it has been otherwise agreed, give notice to quit: Doe d Aslin v Summersett (1830) 1 B & Ad 135; 109 ER 738, dealing with notice given by lessors; Leek and Moorlands Building Society v Clark [1952] 2 QB 788 at 793; 2 All ER 492; Doe d Kindersley v Hughes (1840) 7 M & W 139 (per Parke B); 151 ER 711. A notice to quit given by the landlord to one only of a number of joint tenants who hold the premises of him or her is good: McMillan v Lowry (SC(Vic), December 1954, unreported); Doe d Lord Macartney v Crick (1805) 5 Esp 196; 170 ER 784. The headnote to the secondmentioned decision wrongly refers to a tenancy-in-common; according to the judgment, ‘the two defendants appeared to hold the lands jointly’. Whether a tenancy may be determined by notice to quit given by one only of several tenants-in-common by or to whom the tenancy was granted is not clear. The effect of notice given by one only of several tenants-in-common is discussed in Cole on Ejectment, p 44. In Rogers v Ventura [1955] VLR 139 at 141, Lowe J may perhaps be regarded (it is by no means clear) as accepting the view that at common law one of several lessors who are tenants-in-common may determine the tenancy by notice to quit; although the judgment refers in general terms to ‘joint lessors’, an earlier passage makes it plain that the persons in question were tenants-in-common. As to notice to quit given to one of

several tenants-in-common, the brief report of the decision of Lord Ellenborough in Doe d Lord Macartney v Crick, discussed above, suggests that the notice to quit was held to be valid only because it sufficiently appeared that the [page 138] lessees held as joint tenants; in other words, that had they held as tenants-incommon, the notice would have been bad. One of two joint tenants to whom a lease has been granted cannot surrender the lease unless he or she be authorised so to do by his or her co-tenant: Leek and Moorlands Building Society v Clark [1952] 2 All ER 492; [1952] 2 QB 788; Hammersmith and Fulham London Borough Council v Monk [1992] 1 AC 478 (HL); and see Hounslow London Borough Council v Pilling [1993] 1 WLR 1242 (CA). In Hammersmith and Fulham LBC the House of Lords reviewed the authorities and held that a periodic joint tenancy held by two or more joint tenants may be determined at common law by a notice to quit given by one of the joint tenants without the concurrence of any other joint tenant unless the terms of the lease provide otherwise. This position was reaffirmed by the House of Lords, by reference to Hammersmith and Fulham LBC, in Harrow LBC v Johnstone [1997] 1 WLR 459; and also in Newlon Housing Trust v Alsulaimen [1999] 1 AC 313. These decisions should be contrasted with Hounslow LBC where it was held that the relevant notice was not a notice to quit but rather a notice operating a ‘break clause’ under the lease agreement, which would thereby effect a surrender of the lease. Such a notice could not be given by one of two joint tenants as a surrender of the lease required the concurrence of both tenants. The Court of Appeal in Hounslow LBC distinguished the House of Lords decision (per Nourse LJ at 1246): All that [Monk’s] case decided was that the continuation of a periodic joint tenancy beyond the end of each period of it depends on the joint will of the tenants, so that if one of them gives notice determining it at the end of a period it does not continue. See also Leek and Moorlands Building Society v Clark; Featherstone v Staples

[1986] 1 WLR 861; see [14.8] as to the exercise of an option to renew; and see [16.16] as to surrender by one tenant.

Mortgagors and mortgagees [5.16] In the case of general law land, a lease given by the mortgagor after the date of the mortgage does not bind the mortgagee unless given with his or her consent, except in the case of a lease granted in the exercise of a power conferred either by the mortgage deed or by provisions such as s 99 of the Property Law Act 1958 (Vic): Corbett v Plowden (1884) 26 Ch D 678; Dudley & District Benefit Building Society v Emerson [1949] 1 All ER 691; [1949] 1 Ch 707; Australian Mutual Provident Society v Geo Myers & Co Ltd (1931) 47 CLR 65 at 79; National Trustees Executors & Agency Co of Australasia Ltd v Tindall [1933] VLR 369 at 375–6; Wilson v Kelly [1957] VR 147 at 148; Stroud Building Society v Delamont [1960] 1 All ER 749; and see Tyler, Young and Croft, Fisher and Lightwood’s Law of Mortgage (3rd ed), [12.17]. It is clear from Misiaris v AFC Holdings Pty Ltd (1988) 15 NSWLR 231 that a party under an obligation to seek the mortgagee’s consent must do so bona fide. It follows that the same applies to a variation of lease effected by the mortgagor after the date of the mortgage: see SEAA [page 139] Enterprises Pty Ltd v Figgins Holdings Pty Ltd (1999) 196 CLR 245. A tenancy granted by a mortgagor in breach of the terms of a mortgage may become binding on the mortgagee if the mortgagee consents to the lease expressly or by implication, in the latter case generally by acceptance of rent (Chatsworth Properties Ltd v Effiom [1971] 1 All ER 604 (CA)); but the bare fact of acceptance of rent by a receiver acting as agent of the mortgagor, though appointed by the mortgagee, is not sufficient: Commonwealth Bank of Australia v Baranyay [1993] 1 VR 589 at 599–600; and see generally Fisher and Lightwood, above, [12.17]–[12.20]. A mortgagee’s express consent may be given subject to any conditions the mortgagee wishes to impose: Thanes Pty Ltd v Custom

Credit Corporation Ltd (1985) 5 BPR 97,422. The fact that a lease may not be binding on the mortgagee does not affect its validity as between the mortgagor and the tenant (Thanes Pty Ltd v Custom Credit Corporation Ltd; Commonwealth Bank of Australia v Baranyay; and see Fisher and Lightwood, above, [12.17]– [12.20]). As to feeding the estoppel with respect to leases granted by a purchaser-mortgagor after contract but before completion, see Abbey National Building Society v Cann [1990] 1 All ER 1085 (HL); and Fisher and Lightwood, above, [12.21]. See also Dixon, ‘Leases, Mortgages and Deeds of Consent’ [1993] Qld Law Soc J 515; [1994] Qld Law Soc J 1; Xavier and Kearsley, ‘The Lessee’s Bane: The Mortgagee’s Consent — Prudence or Abundant Caution?’, (1993) Qld Lawyer 103, 183. Even in circumstances where the mortgage is in default and the mortgagee is otherwise entitled to possession, the mortgagor, having been allowed to remain in occupation by the mortgagee, is entitled to the rents without liability to account to the mortgagee: SEAA Enterprises Pty Ltd v Figgins Holdings Pty Ltd (1999) 196 CLR 245. It was said by McHugh J that ‘any default on the part of [the mortgagor] merely enlivened the rights and remedies conferred by the section [s 81 of the Transfer of Land Act 1958 (Vic)] and, in the absence of those rights being invoked, did not affect the right of [the mortgagor] to deal with the reversion’: SEAA Enterprises Pty Ltd v Figgins Holdings Pty Ltd (1999) 196 CLR 245 at 285. Consequently, until the mortgagee gave notice to the tenant to pay the rent to the mortgagee, the mortgagor could agree with the tenant to reduce the rent and to give a good discharge for reduced rent so payable and paid up until the date the mortgagee gave such notice. Leasing powers are conferred upon mortgagors in possession and mortgagees in possession by Conveyancing Act 1919 (NSW) s 106; Conveyancing and Law of Property Act 1884 (Tas) ss 19, 20; Property Law Act 1958 (Vic) s 99. Power to accept surrenders of leases is conferred upon these persons by (NSW) s 107; (Vic) s 100. By s 86 of the Property Law Act 1958 (Vic), these provisions are excluded in the case of mortgages under the Transfer of Land Act 1958 (Vic), effected by instruments of mortgage under that Act: compare New South Wales and Tasmania where the provisions (NSW: ss 106, 107; Tas: ss 19, 20) apply to Torrens system land subject to any contrary provision in the mortgage. In New South Wales it appears that if the

[page 140] mortgage contains a contrary provision a mortgagor has no power to make even an oral or implied lease, though leases of this type are not within the scope of s 53(4): Australia and New Zealand Bank Ltd v Sinclair [1968] 2 NSWR 26. Generally, see the full discussion of the issues raised by these provisions in Fisher and Lightwood, above, [12.22]–[12.30]. Reference has already been made to the common law limitation on the leasing powers of mortgagors of land under the general law. Though in a mortgage under the Transfer of Land Act the title remains in the mortgagor, the mortgagor’s right to make a lease which will bind the mortgagee is equally limited. No registered lease of land subject to a mortgage or charge is valid or binding against the mortgagee or annuitant unless the mortgagor has consented in writing to the lease: Transfer of Land Act 1958 (Vic) s 87C(a). See also Real Property Act 1900 (NSW) s 53(4); Land Title Act 1994 (Qld) s 66; Real Property Act 1886 (SA) s 118; Land Titles Act 1980 (Tas) s 64(3); Transfer of Land Act 1893 (WA) s 91; and Commonwealth v Orr (1981) 58 FLR 219. It is to be noted that the Victorian provision begins with the words ‘no registered lease’, and that the concluding words of s 131 of the Act of 1958 (‘prior to the same being registered’) have been omitted. Despite the fact that s 87C deals only with registered leases, it is thought that an unregistered lease will similarly not bind the mortgagee unless he or she has consented to it; compare English Scottish & Australian Bank Ltd v City National Bank [1933] St R Qd 81 and contrast Parkinson v Braham [1962] NSWR 165; [1962] SR (NSW) 663. Section 87C of the Transfer of Land Act 1958 (Vic) now provides: The creation, variation or surrender of a lease or the creation or variation of an easement or restrictive covenant, in respect of land subject to a mortgage or charge, is not valid or binding against a mortgagee or annuitant unless the mortgagee or annuitant has consented in writing to (as the case requires) — (a) the creation, variation or surrender of the lease; or (b) the creation or variation of the easement or restrictive covenant. In Daniher v Fitzgerald (1919) 12 SR (NSW) 260 it was held that the New South Wales provisions do not apply to oral or implied leases. As to the

statutory power of leasing and the statutory power to accept a surrender of a lease by a mortgagor in possession or by a mortgagee in possession, see Fisher and Lightwood, above, [12.22], [12.25], [12.26]–[12.28] and [12.30]. Where a lease is not granted under some statutory or other power of leasing the lease will be valid if made by mortgagee and mortgagor together: see Fisher and Lightwood, above, [12.29]. In the case of general law land, a mortgagee is bound by a lease granted by the mortgagor before the giving of the mortgage: Moss v Gallimore (1779) 1 Dougl 279; 99 ER 182. Nevertheless a mortgagee may determine the lease in any way in which the mortgagor might have determined it. An unregistered lease given by the mortgagor of land under the Transfer of Land Act 1958 (Vic) (or its equivalents) before the date of the mortgage may attract the protection of provisions such as s 42(2)(e) of that Act: [page 141] see Real Property Act 1900 (NSW) s 42(1)(d); Land Title Act 1994 (Qld) s 185(1)(b); Real Property Act 1886 (SA) s 69(h); Land Title Act 1980 (Tas) s 40(3)(d); Transfer of Land Act 1893 (WA) s 68; and see Fisher and Lightwood, above, [12.12]. A registered lease of Torrens system land will be binding on a mortgagee (or otherwise) according to the paramountcy and priorities provisions of the relevant Torrens legislation if the tenant is in possession. As in the case of general law land, the mortgagee will be entitled to put an end to the lease if the mortgagor would have been entitled to do so. See Colonial Bank v Roache (1870) 1 VR (L) 165, where, however, the mortgagee failed to make the demand of possession necessary to determine the tenancy at will. Generally a tenant may safely pay rent due to the mortgagor in the absence of any notice by the mortgagee to the tenant to pay the rent to the mortgagee: SEAA Enterprises Pty Ltd v Figgins Holdings Pty Ltd; and see Fisher and Lightwood, above, [12.13]. As to the position of the mortgagee as assignee of the reversion or otherwise with respect to claims by the tenant by way of set-off or otherwise, see [7.4] and as to claims by the mortgagee against the tenant, including for rent arrears, see [15.20].

Trustees [5.17] In considering the leasing powers of trustees, a distinction must be drawn between the capacity of a trustee, at law, as owner of the legal estate in land, to transfer a portion of his or her interest therein by way of demise and the propriety and effect of the transaction when viewed from the standpoint of a court of equity. In the first sense, the capacity of a trustee to grant a lease has no limit save that imposed by the size of the legal estate vested in him or her: Tuckett v Brice [1917] VLR 36. In the second sense, the trustee’s capacity is to be judged by reference to whether the transaction constitutes a breach of trust, having regard to the powers of leasing which have been conferred by the trust instrument or by statute and to the rules laid down by courts of equity. If the trustee grants a lease which falls within his or her capacity in the narrow or legal sense, but exceeds his or her powers in the more usual sense and is accordingly a breach of trust, the position of the lessee or those deriving title under him or her as against the beneficiaries under the trust will fall to be determined by the usual principles governing priorities in cases where an estate has been acquired in consequence of a breach of trust: Malpas v Ackland (1827) 3 Russ 273; 38 ER 578. A lease granted without capacity in the former sense is void (but not as between the parties to it); a lease granted without power in the latter sense, while on occasions described as void, is merely wrongful and (in appropriate circumstances) liable to be set aside: see Svenson v Payne (1945) 71 CLR 531; as to the possible effect of Torrens system legislation in these circumstances, see Meek v Bennie [1940] NZLR 1 at 6 (referring to Fels v Knowles (1906) 27 NZLR 604; see also Horne v Horne (1906) 26 NZLR 1208 at 1214 and 1217. The paradoxical defence that a tenancy will not support proceedings against the tenant for the recovery of possession if the [page 142] tenancy was created in breach of trust will not succeed: Ex parte Palmer (1912) 12 SR (NSW) 756. A trustee has a duty to obtain the best rent reasonably

obtainable in the circumstances: Pateman v Heyen (1993) 33 NSWLR 188 at 193–4. It is as a result of the control exercised by courts of equity that trustees are to be regarded as one of the classes of persons whose capacity to grant leases is limited. Hereafter, when reference is made to the leasing powers of trustees, this is the sense intended; in other words, the question for consideration is whether power exists in the sense that the lease cannot be impugned as having been made in breach of trust. Even where the trust instrument gave no express power of leasing the courts would often uphold a lease as warranted by an implied power: Naylor v Arnitt (1830) 1 Russ & M 501, 39 ER 193; Egmont v Smith (1877) 6 Ch D 469; Re Shaw’s Trusts (1871) LR 12 Eq 124. However, the onus is on the trustee to show that the lease was proper: Re Mallen [1929] SASR 154. The trustee was bound to act reasonably, and an improvident lease could not be supported as an exercise of the implied power: Attorney-General v Owen (1805) 10 Ves Jun 555; 32 ER 960; Re North [1909] 1 Ch 625. The supposed rule confining the implied power to leases not greater than tenancies from year to year is considered in Perpetual Executors & Trustees Assn of Aust Ltd v England (1901) 27 VLR 443 at 453–4. Where a grazier empowered his trustees to carry on his business and for that purpose to employ all assets used by him in connection with the carrying on of the business, the trustees had no implied power to grant leases: Thomas v Thomas [1939] St R Qd 301. An express power of leasing in general terms will ordinarily authorise a lease of opened but not of unopened mines: Re Reynolds (1909) 10 SR (NSW) 109; Re Baskerville [1910] 2 Ch 329; see now, as to the grant of mining leases by trustees for sale, the statutory powers of trustees to lease, below (in relation to Victoria, note the provisions of ss 44–47 of the Settled Land Act 1958, applying to building and mining leases, and Property Law Act 1958 s 35(1)). As to the propriety of a lease which, while expedient from a business point of view, might tend to give the life tenant an advantage over the remainderman, see Re Mallen. Trustees with power to lease and power to sell are not generally, in the absence of an express power, empowered to give an option to purchase in the lease which they grant: Oceanic Steam Navigation Co v Sutherberry (1880) 16 Ch D 236; Rawcliffe v Johnstone and Morton [1921] NZLR 470; see also Re Farnell’s Settled Estates (1886) 33 Ch D 599; Horne v Horne; Re Stephenson’s Settled

Estates (1906) 6 SR (NSW) 420; Meek v Bennie; and Re Lovett [1966] VR 65. In general terms the cases indicate that the objection to trustees granting such option is that they thereby preclude a proper exercise of the trustees’ discretion at the time of sale: see, particularly, Oceanic Steam Navigation Co v Sutherberry at (1880) 16 Ch D 245 (per James LJ) and Rawcliffe v Johnstone and Morton at [1921] NZLR 473. Options to renew leases are similarly objectionable. However, the nature of the trust and normal commercial arrangements in that context may [page 143] make the granting of options appropriate: see Meek v Bennie; Rousset v Antunovich [1963] WAR 52. Consequently where the trust is an income producing trust of real property, rather than a trust for sale, it may be quite proper for the trustees to grant leases with options to renew to best secure the income flow, provided the rent review provisions during the lease term and in the exercise of options and during renewed terms are designed, as far as possible, to maintain current market rents from time to time (which would be consistent with the duty of a trustee in leasing to obtain the best rent reasonably obtainable in the circumstances: see Pateman v Heyen at 33 NSWLR 193–4). It has also been said that the proper duty of trustees having a power to lease is to execute that power, not to enter into a contract to execute it: In the Settlement of Wills (1880) 6 VLR (E) 99 (and see the report of previous proceedings in the same matter at (1879) 5 VLR (E) 292 which indicates that the case concerned an agreement for lease and the demands by the person to whom it was agreed that the lease would be granted for execution of the lease itself). By statute the leasing powers of trustees have been much enlarged: Trustee Act 1925 (NSW) ss 36–38, 81 (Conveyancing Act 1919 (NSW) ss 66D, 151C, in relation to trusts for sale); Trustee Act 1958 (Vic) Pt II; Property Law Act 1958 (Vic) s 35(1) (in relation to trusts for sale, which confers all the powers of leasing conferred on a tenant for life under the Settled Land Act 1958 ss 41–47, and see s 101); Trusts Act 1973 (Qld) ss 32, 37–39, 94–97; Trustee Act 1936 (SA) ss 25c, 26, 26a; Trustees Act 1962

(WA) s 27; generally, see Jacobs’ Law of Trusts, (8th ed, 2016) pp 462–7. In addition, there is the power conferred upon trustees generally by s 63 of the Trustee Act 1958 (Vic); and see Trustee Act 1925 (NSW) s 81; Trusts Act 1973 (Qld) ss 57–58, 94; Trustee Act 1936 (SA) s 59b; Trustee Act 1898 (Tas) ss 47, 55; Trustees Act 1962 (WA) s 89. By this provision, where in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release or other disposition, or any purchase, investment, acquisition, expenditure or other transaction, is, in the opinion of the court, expedient (but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the trust instrument (if any) or by law), the court may by order confer upon the trustees, either generally or in the particular instance, the necessary power for the purpose on such terms and subject to such provisions and conditions (if any) as the court thinks fit. An order may be made under this section authorising a trustee to enter into a lease notwithstanding that the trustee has in fact power under the trust instrument to enter into the lease: Degan v Lee (1939) 39 SR (NSW) 234. Reference should also be made to s 63A of the Trustee Act 1958 (Vic), whereby the court may by order approve arrangements enlarging trustees’ powers of managing or administering any of the property subject to the trusts: this provision follows the English Variation of Trusts Act (6 & 7 Eliz 2, c 53); similar provisions now exist in the trustee legislation of Queensland (s 95), South Australia (s 59c) and Western Australia (s 90), but not in New South Wales or Tasmania. [page 144] Just as implied power on the part of a trustee to grant a lease may be held to exist, so a trustee may have not only express, but also implied power to accept leases. Trustees were held to have implied authority to take a lease of certain premises owned by the testator’s family and used by him in his business: Thomas v Thomas [1939] St R Qd 301. Where trustees had power to manage and in fact carried on a sheep station, they were held to have power to take a lease of contiguous lands, the occupation of which was almost essential to the beneficial management of the station: Umphelby v Grey (1898) 24 VLR 979.

Where a trustee takes a lease the lessor cannot sue the beneficiary on the covenants: Ramage v Womack [1900] 1 QB 116. The trustee is personally liable on the covenants: White v Hunt (1870) LR 6 Ex 32; compare Rowand v Equity Trustees Executors & Agency Co Ltd (1896) 22 VLR 1, dealing with the position of an executor. The trustee has, provided he or she has acted properly in the matter, a trustee’s normal right to be indemnified out of the trust estate: Re Richardson [1911] 2 KB 705. A power on the part of trustees to accept surrenders of leases may be implied: Umphelby v Grey (1898) 24 VLR 979. In the leading case of Keech v Sandford (1726) Cas temp King 61; 25 ER 223; [1558–1774] All ER Rep 230, a person who held a lease on trust for an infant and obtained a renewal on his own behalf was held to be a constructive trustee of the further term: compare Re Knowles’ Will Trusts [1948] 1 All ER 866. A person who is not a trustee of the original lease may, nonetheless, become a constructive trustee of a further lease in consequence of the existence of a fiduciary relationship and the circumstances in which the further lease is obtained: Prebble v Reeves [1910] VLR 88. The rule against a trustee’s purchasing the trust property extends to the taking of a lease: Re Dumbell; Ex parte Hughes (1802) 31 ER 1223 at 1226; Re O’Shea [1957] VR 352 at 356.

Personal representatives [5.18] The personal representative of a deceased lessee is liable as such in respect of the lessee’s obligations under the lease, that is to say, he or she is liable as a personal representative, so that, if nothing more appears, where the estate is insolvent the lessor will not be able to look to the private assets of the personal representative. Even though the lease be of a burdensome nature, the personal representative is not entitled to disclaim: Rendall v Andreae (1892) 61 LJQB 630 at 631; Commissioner of Stamp Duties v Brasch (1937) 57 CLR 69 at 86; [1937] ALR 246. If the deceased lessee was merely an assignee, an attempt may be made to minimise the liability of the estate by an assignment to a man of straw: Taylor v Shum (1797) 1 Bos & P 21; 126 ER 755; Onslow v Corrie (1817) 2 Madd 330; 56 ER 357; Rendall v Andreae (1892) 61 LJQB 630 at 631; Stevenson & Sons Ltd v Brind (1895) 21 VLR 109. Where the estate of the deceased is or may be insolvent, a personal

representative would be well advised not to enter into possession of the demised premises. For by [page 145] doing so that person will make him or herself personally liable to the lessor upon the covenants contained in the lease, in that he or she will become an assignee of the lease by operation of law: Re Bowes (1887) 37 Ch D 131; [1886–90] All ER Rep 693; Rendall v Andreae; Rowand v Equity Trustees Executors & Agency Co Ltd (1896) 22 VLR 1; Whitehead v Palmer [1908] 1 KB 157. A number of the authorities are considered in Carson on Real Property, pp 536–7. As to the liability of the personal representative for rent due under a lease under which the deceased was tenant, see [11.23]. Where a personal representative who has taken possession is sought to be made personally liable and the rent reserved exceeds the value of the premises, he or she may by proper pleading limit his or her liability to the value of the premises: Rendall v Andreae; Commissioner of Stamp Duties v Brasch; Re Bowes. In Rae v Clifford (1893) 12 NZLR 257, the testatrix had a four-weekly tenancy of certain business premises; her executor remained in possession for several years, carrying on the business in the premises. The executor was held to be in possession not under the original contract made by the testatrix, but under a new contract made between the landlord and himself. A practice grew up of protecting personal representatives by ordering a fund to be set aside to answer possible liabilities arising under leases held by the deceased. See as to this practice Re Nixon [1904] 1 Ch 638; Re King [1907] 1 Ch 72. In 1859 a measure of protection was given by statute (Lord St Leonard’s Act 22 & 23 Vict c 35 ss 27, 28): see Trustee Act 1925 (NSW) s 61; Trusts Act 1973 (Qld) s 66; Trustee Act 1936 (SA) ss 30, 31; Trustee Act 1958 (Vic) s 32; Trustees Act 1962 (WA) s 62. By this provision, where a personal representative liable as such for any rent covenant or agreement reserved by or contained in any lease satisfies all liabilities under the lease which may have accrued, and been claimed up to the date of the conveyance hereinafter mentioned, and where necessary sets apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum which the lessee agreed to

lay out, then the personal representative may convey the property demised to a purchaser, legatee, devisee or other person entitled to call for a conveyance thereof; thereafter he or she may distribute the residuary estate other than the fund (if any) set apart without appropriating any part or any future part (as the case may be) to meet any future liability under the lease, and notwithstanding such distribution he or she shall not be personally liable in respect of any subsequent claim under the lease. The effect of this section on the old practice of ordering a fund to be set aside for the protection of the executors must be considered. Where the personal representative has taken possession and so made him or herself liable personally, from privity of estate, under the obligations contained in the lease, an order will still be made for his or her protection under the old practice: Re Nixon; Re Owers [1941] Ch 389. Even apart from statute, personal representatives may grant leases, and the court will not interfere provided that they have acted in the due administration of the estate: Oceanic Steam Navigation Co v Sutherberry (1880) 16 Ch D 236; Chambers v Kingham (1878) 10 Ch D 743; Withers v Withers (1893) 14 ALT 273; In the Estate of Corrigan [page 146] (1925) 42 WN (NSW) 28; Re Chaplin & Staffordshire Potteries Waterworks Co [1922] 2 Ch 824; Colyton Investments Pty Ltd v McSorley (1963) 107 CLR 177 at 183–4; [1963] ALR 487; Re Kemnal and Stills Contract [1923] 1 Ch 293 at 297, 308 and 316; Murphy v Simpson [1957] VR 598; Patel v Patel [1981] 1 WLR 1342. Reference should now be made to the statutory provisions discussed below. An executor may demise before probate: Roe d Bendall v Summerset (1770) 2 Wm Bl 692; 96 ER 407. However, an administrator, since he or she derives that title from the grant, cannot demise before he or she obtains it: Woolley v Clark (1822) 5 B and Ald 744; 106 ER 1363. For the position under the legislation of New South Wales, see The Daily v White (1946) 63 WN (NSW) 262. As to the effect of a lease granted by one only of several executors, see Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492; Colyton Investments Pty Ltd v McSorley (1963) 107 CLR 177; [1963] ALR 487. Wide leasing powers are conferred upon personal

representatives by statute: Conveyancing Act 1919 (NSW) s 153; Trustee Act 1925 (NSW) ss 36–38; Trusts Act 1973 (Qld) ss 32, 37–39 and definition of ‘trustee’; Administration and Probate Act 1919 (SA) s 47(b); Conveyancing and Law of Property Act 1884 (Tas) s 19(2); Administration and Probate Act 1935 (Tas); Administration and Probate Act 1958 (Vic) s 44(1); Property Law Act 1958 (Vic) s 35(1); and Trustees Act 1962 (WA) s 27. There are also statutory provisions which enable leases to be made with court approval where personal representatives lack necessary powers and the lease would be appropriate in the course of administration: Trustee Act 1925 (NSW) s 81; Wills Probate and Administration Act 1898 (NSW) s 57; Trusts Act 1973 (Qld) s 94; Trustee Act 1898 (Tas) Pt V; Trustee Act 1958 (Vic) s 63; Trustees Act 1962 (WA) s 89. Generally, see Jacobs’ Law of Trusts, (8th ed, 2016) pp 340–2. As to the position where personal representatives hold jointly, see [5.15]; and see Hammersmith and Fulham London Borough Council v Monk [1992] 1 AC 478 at 484 (HL).

Leases invalidated by reason of non-compliance with terms of powers under which they are granted [5.19] Section 152 of the Property Law Act 1958 (Vic) validates leases in certain circumstances where they would otherwise be invalidated due to a failure to comply with terms or powers under which they are granted. However, the section is intended to cure formal defects, not matters of substance: Re Newell and Nevill’s Contract [1900] 1 Ch 90, and will not validate a lease granted by a person with no power to lease: Ex parte Copper (1865) 34 LJ Ch 373, or validate a lease of one kind by turning it into a lease of another kind: Hallett v Martin (1883) 24 Ch D 624. Section 152 does not create a substantially different lease from the lease purported to have been granted: Pawson v Revell [1958] 2 QB 360; [1958] 3 All ER 233. Nor does the section apply

[page 147] where the lease is in the form intended by the parties: Gaslight & Coke Co v Towse (1887) 35 Ch D 519. A lease which is invalid because part of the premises cannot be demised cannot be validated: Sutherland (Dowager Duchess) v Sutherland (Duke) [1883] 3 Ch 169 at 194; King v Bird [1909] 1 KB 837. As to the scope of this section, see also Kisch v Hawes Brothers Ltd [1935] Ch 102; [1934] All ER Rep 730; Davies v Hall [1954] 1 WLR 855. As to the effect of s 152(6), see Pawson v Revell. The corresponding New South Wales provisions are contained in Conveyancing Act 1919 ss 135–141.

Illegality [5.20] The consequences of a lease being granted in breach of statutory provisions were considered more recently by the New South Wales Court of Appeal in Polish Club Pty Ltd v Gnych (2014) 86 NSWLR 650. The issue was addressed by Tobias AJA (with whom Meagher and Leeming JJA agreed) in the context of the provisions of s 92(1)(d) of the Liquor Act 2007 (NSW) which, it was held, rendered a lease entered in breach of these provisions void and unenforceable. Reviewing the authorities Tobias AJA said (at 86 NSWLR 667–9): [64] Both parties referred to authorities on the issue of the effect of illegality which do not appear to have been referred to the primary judge. In particular, reliance was placed upon the judgment of McHugh J in Nelson v Nelson (1995) 184 CLR 538 (to which the primary judge was referred) where his Honour commented upon what he referred to as the Bowmakers rule. Thus, at 609 McHugh J said: “The Bowmakers rule has no regard to the legal and equitable rights of the parties, the merits of the case, the effect of the transaction in undermining the policy of the relevant legislation or the question whether the sanctions imposed by the legislation sufficiently protect the purpose of the legislation. Regard is had only to the procedural issue; and it is that issue

and not the policy of the legislation or the merits of the parties which determines the outcome.” [65] Again, at 610, after referring to what Lord Goff had said in Tinsley v Milligan [1994] 1 AC 340, McHugh J observed: “A final criticism of the Bowmakers rule adopted by the majority in Tinsley is that it may often defeat the intention of the legislature. Parliament almost invariably provides mechanisms for dealing with breaches of its laws. Those mechanisms sometimes include a provision that makes unlawful and unenforceable an agreement that defeats or evades the operation of the relevant law. If a particular enactment does not contain such a provision, the prima facie conclusion to be drawn is that Parliament regarded the sanctions and remedies contained in the enactment as sufficient to deter illegal conduct and saw no need to take the drastic step of making unenforceable an agreement or trust that defeats the purpose of the enactment.” (Footnote omitted) [66] McHugh J then remarked at 612–613 that if courts withhold relief because of an illegal transaction, they necessarily impose a sanction on one of the parties to that transaction that will deprive one party of his or her property rights and effectively [page 148] vest them in another person who will almost always be a willing participant in the illegality. Leaving aside cases where the statute makes rights arising out of the transaction unenforceable in all circumstances, such a sanction can only be justified if two conditions are met. The first is that the sanction should be proportionate to the seriousness of the illegality involved. The second is that the imposition of the sanction must further the purpose of the statute and not impose a further sanction for the unlawful conduct if Parliament has indicated that the sanctions

imposed by the statute are sufficient to deal with conduct that breaches or evades the operation of the statute and its policies. [67] At 613 McHugh J framed his conclusion in the following terms: “Accordingly, in my opinion … courts should not refuse to enforce legal or equitable rights simply because they arose out of or were associated with an unlawful purpose unless: (a) the statute discloses an intention that those rights should be unenforceable in all circumstances; or (b)(i) the sanction of refusing to enforce those rights is not disproportionate to the seriousness of the unlawful conduct; (ii) the imposition of the sanction is necessary, having regard to the terms of the statute, to protect its objects or policies; and (iii) the statute does not disclose an intention that the sanctions and remedies contained in the statute are to be the only legal consequences of a breach of the statute or the frustration of its policies.” (Footnote omitted) [68] In the same case Deane and Gummow JJ said at 551–552 that authorities in contract law (including Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 at 429–430) suggest drawing a distinction between three cases: “… (i) an express statutory provision against the making of a contract or creation or implication of a trust by fastening upon some act which is essential to its formation, whether or not the prohibition be absolute or subject to some qualification such as the issue of a licence; (ii) an express statutory prohibition, not of the formation of a contract or creation or implication of a trust, but of the doing of a particular act; an agreement that the act be done is treated as impliedly prohibited by the statute and illegal; and (iii) contracts and trusts not directly contrary to the provisions of the statute by reason of any express or implied prohibition in the statute but which are ‘associated with or in furtherance of illegal purposes’.” [69] In Miller v Miller [2011] HCA 9; (2011) 242 CLR 446, French CJ,

Gummow, Hayne, Crennan, Kiefel and Bell JJ cited at [26] the passage from the judgment of Deane and Gummow JJ in Nelson that I have set out in the preceding paragraph. At [27] their Honours refer to what McHugh J had said in Nelson at 611 observing that the statement of Lord Mansfield in Holman v Johnson (1775) 1 Cowp 341; 98 ER 1120 at 343; 1121 that “[n]o Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act”, by its all-embracing generality, fails to take sufficient account of the different ways in which questions of illegality may arise. Their Honours continued: “[27] … Hence the emphasis given in Nelson v Nelson … to the discernment, from the scope and purpose of the statute, of whether the legislative purpose will be fulfilled without regarding the contract or the trust as void and unenforceable. But implicit in, indeed at the very heart of, that process lies the recognition that there are cases where the breach of a norm of conduct stated expressly or implied [page 149] in the statutory text requires the conclusion that an obligation otherwise created or recognised is not to be enforced by the courts.” (Citation omitted) [70] The most recent pronouncement of the High Court on this subject is that in Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498. At [23] French CJ, Crennan and Kiefel JJ refer to the joint judgment of the court in Miller and the decisions of the court there cited, observing that an agreement may be unenforceable for statutory illegality where: “[23] … (i) the making of the agreement or the doing of an act essential to its formation is expressly prohibited absolutely or conditionally by the statute;

(ii) the making of the agreement is impliedly prohibited by statute. A particular case of an implied prohibition arises where the agreement is to do an act the doing of which is prohibited by the statute; (iii) the agreement is not expressly or impliedly prohibited by a statute but is treated by the courts as unenforceable because it is a ‘contract associated with or in the furtherance of illegal purposes’.” (Footnotes omitted) [71] Their Honours continued: “In the third category of case, the court acts to uphold the policy of the law, which may make the agreement unenforceable. That policy does not impose the sanction of unenforceability on every agreement associated with or made in furtherance of illegal purposes. The court must discern from the scope and purpose of the relevant statute ‘whether the legislative purpose will be fulfilled without regarding the contract or the trust as void and unenforceable’. As in the case when a plaintiff sues another for damages sustained in the course of or as a result of illegal conduct of the plaintiff, ‘the central policy consideration at stake is the coherence of the law’.” (Footnotes omitted) Applying these principles to the legislation in question, Tobias AJA continued (86 NSWLR 669): [72] In essence, the Club submitted that upon consideration of the objects and policy of the Liquor Act and, in particular, of s 92(1), it was apparent that a lease which falls within any of the subparagraphs of s 92(1) is expressly prohibited, absolutely by s 92(1)(c) and conditionally by s 92(1)(d). The policy of the Act generally, and s 91 and s 92 in particular, is to ensure that the licensee or in the case of a licensee which is a corporation, the manager of the licensed premises, at all times is responsible for the personal supervision and management of the (lawful) conduct of the business of the licensed premises. That objective cannot be realised if any part of the licensed premises

is subject to a lease to a third party who might not be a fit and proper person to be a licensee or, for that matter, a manager, but who, by virtue of the lease has exclusive possession of part of the licensed premises thus having the right to exclude therefrom the licensee or in the case of a corporate licensee, the manager. Tobias AJA concluded that the policy or purposes of the legislation could only be achieved by holding the lease void (at 86 NSWLR 670, [79]) a position which the [page 150] High Court rejected on appeal in Gnych v Polish Club Ltd (2015) 255 CLR 414 at 428–9, [50]–[52] (French CJ, Kiefel, Keane and Nettle JJ). Two reasons were given for this position. First, that the vesting of premises under the lease in a person other than the licensee could not be said to be contrary to the purpose and policy of the statute. Second, that role of the authority supervising and managing licensed premises was inconsistent with the view that the regime required that a contravention by the licensee would render the lease void and unenforceable. The plurality also observed (at 255 CLR 426): [41] The scope of the prohibition in s 92(1)(d) of the Liquor Act can be understood only by reference to the legal characteristics of a lease. In Progressive Mailing House Pty Ltd v Tabali Pty Ltd, [(1985) 157 CLR 17 at 51] Deane J described a lease as possessing a “duality of character … [being] both an executory contract and an executed demise”. In this conception, a lease is a “[bundle] of rights and duties which together can be identified as [a] species of property” the origins of which lie in the contract between lessor and lessee.30 In terms of the dual character of a lease described by Deane J, s 92(1)(d) is not directed at the bundle of rights and duties under the contract between lessor and lessee; rather, it is directed squarely at the conduct of the licensee/lessor in executing a demise of part of licensed premises. In relation to the general principles to be applied in the context of statutory illegality, the plurality reaffirmed the position as stated in Equuscorp Pty Ltd v

Haxton (2012) 246 CLR 498 at [23], to which reference was made by the Court of Appeal (and see also at 255 CLR 431–2, [62]–[64] (Gageler J)). See also Dovastand Pty Ltd v Mardasa Nominees Pty Ltd [1991] 2 VR 285 and Croft, Hay and Virgona, Retail Leases Victoria (LexisNexis, looseleaf) pp 71,160–2, [210,025].

[page 151]

6 Leases as Contracts Introductory [6.1] A lease is not a mere contract; it also creates rights in rem: see [1.2]. In this chapter it is proposed to consider some of the matters which arise concerning leases viewed as contracts. These matters are as follows: intention to create legal relations; construction; rectification; fraud illegality and mistake; frustration; and collateral warranty. Generally reference should also be made to the contract texts, such as Greig and Davis, Law of Contract and Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot’s Law of Contract; see also Heydon, Leeming and Turner, Equity Doctrines and Remedies, 5th ed, and Spry, Equitable Remedies, 9th ed. Other questions which concern leases regarded as contracts are dealt with in other chapters. Matters considered elsewhere include the following: capacity to make and take leases (Chapter 5); implied covenants (Chapter 8); usual covenants (Chapter 9); repairs (Chapter 10); breach of contract (Chapter 13); renewal (Chapter 14). Of particular importance is the discussion of the application of the doctrine of repudiation to leases in the context of determination of tenancies (Chapter 16). As to the application of contractual doctrines to agreements for lease, see also [4.1].

Intention to create legal relations

[6.2] Agreements may be made between parties which do not result in contracts within the meaning of that term in law. An example is where there is an offer and an acceptance of hospitality. Similarly, domestic arrangements are often made which do not constitute a contract. What is lacking in such cases is the intention that the agreements should be attended by legal consequences, or, as it has been put, ‘an intention to create a legal bond’: Balfour v Balfour [1919] 2 KB 571; [1918–19] All ER Rep 860; McBride v Sandland (1918) 25 CLR 69 at 92; 25 ALR 54. Leases, like any other contract, are [page 152] subject to this rule, and an attempt to establish the grant of a lease may accordingly fail because of the absence of an intention to create legal relations: Murphy v Simpson [1957] VR 598; Heslop v Burns [1974] 1 WLR 1241. As to the intention of a company to enter into a lease or an agreement for a lease, see [5.8]. The issue whether there is an intention to create legal relations is to be contrasted with the question whether parties have merely been negotiating and have failed to conclude an agreement for lease: see, for example, Brunswick Development Pty Ltd v Shock Records Pty Ltd (1996) V ConvR ¶54-604 (FCA, Sundberg J). Thus there is a distinction between the question whether the parties intended to enter into contractual relations and the question whether they intended to make a concluded bargain: see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 (CA) where it was held that the question of intention in this respect was, prima facie, to be resolved objectively by the usual process of construction of the relevant documents; and see Wesfarmers Bunnings Ltd v Angus & Robertson Bookworld Pty Ltd [1998] VSC 101 at [45]–[65] (per Gillard J); and Guilfoyle Pty Ltd v National Mutual Life Association of Australasia (2000) V ConvR ¶54622; and see [1.5], [4.1] and [4.8].

Construction and implication of terms

[6.3] The general rules of construction of contracts are applicable to leases. With particular reference to the construction of options to renew leases, see [14.1] and [14.3].

General principles of construction [6.4] The guiding light for the courts in questions of construction is the intention of the parties to be discerned from the terms of the contract and the ‘factual matrix’ insofar as that provides objective evidence in this respect. In Reardon-Smith Line Ltd v Hansen Tangen [1976] 1 WLR 989 (HL) Lord Wilberforce described the process in the following terms (at 997): … what the court must do must be to place itself in thought in the same factual matrix as that in which the parties were. All of these opinions seem to me implicitly to recognise that, in the search for the relevant background, there may be facts which form part of the circumstances in which the parties contract in which one, or both, may take no particular interest, their minds being addressed to or concentrated on other facts so that if asked they would assert that they did not have these facts in the forefront of their mind, but that will not prevent those facts forming part of an objective setting in which the contract is to be construed. And see Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; and Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 where the High Court (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) reaffirmed (at 462, [22]) the following statement by Lord Wiberforce in Reardon-Smith (at 995–6; [page 153] which it was noted had been set out by Mason J with evident approval in Codelfa Construction, at 350): In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn

presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating. Further, the High Court also reaffirmed (at 462, [22]) that the construction of terms in a commercial contract is to be determined objectively, ‘by what a reasonable person in the position of [the third party] would have understood them to mean’; and see BHP v QV [2004] VSC 447 at [11] (per DoddsStreeton J). Elaborating or explaining the position further, the High Court (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ), in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, said (at 179, [40]): This Court, in Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction. Referring to this and earlier High Court authority, Beazley JA (with whom Mason P and Ipp JA agreed), said in Boreland v Docker (2007) NSW ConvR ¶56-182 (CA) at 56,322: [67] This ‘shift’ in the High Court’s approach was examined by the Full Court of the Federal Court in Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144. In that case, each of the members of the Court recognised the High Court’s shift in approach to the admissibility of surrounding circumstances when construing a commercial contract

More recently, the High Court (French CJ, Hayne, Crennan and Kieffel JJ) in Electricity Generation Corp v Woodside Energy Ltd (2014) 251 CLR 640 (at 656–7) summarised the principles of interpretation as follows: The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean; McCann v Switzerland Insurance Australia Pty Ltd (2000) 203 CLR 579; Pacific Carriers Ltd v BNP Paribas (Pacific Carriers) (2004) 218 CLR 451; International Air Transport Association v Ansett Australia Holdings (IATA) (2008) 234 CLR 151; and see further Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 201 CLR 181, citing Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912; [1998] 1 All ER 98 at 114. See also Homburg Houtimport BV v Agrosin Private Ltd [2004] 1 AC 715; [2003] [page 154] UKHL 12. That approach is not unfamiliar; see, for example, Hydarnes Steamship Co v Indemnity Mutual Marine Assurance Co [1895] 1 QB 500 at 504; Bergl (Australia) Ltd v Moxon Lighterage Co Ltd (1920) 28 CLR 194 at 199; see generally Lord Bingham of Cornhill, “A New Thing Under the Sun? The Interpretation of Contract and the ICS Decision” (2008) 12 Edin LR 374. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract; Pacific Carriers at 461–2 [22]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40]; IATA at 160 [8]; Byrnes v Kendle (2011) 243 CLR 253 at 284 [98]. See also Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 326 and 350; Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900; [2012] 1 All ER 1137; [2011] UKSC 50 at [14]. Appreciation of the commercial purpose or objects is facilitated by an understanding of the “genesis of the transaction, the background, the context [and] the market in which the parties are operating”: Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 350, citing Reardon Smith

Line v Hansen-Tangen [1976] 1 WLR 989 at 995–6; [1976] 3 All ER 570 at 574. See also Zhu v Treasurer (NSW) (2004) 218 CLR 530 at 559 [82]; IATA at 160 [8]. As Arden LJ observed in Re Golden Ket Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption “that the parties … intended to produce a commercial result.” A commercial contract is to be construed so as to avoid it “making commercial nonsense or working commercial inconvenience.” And see Lewison, The Interpretation of Contracts (6th ed), para 2.02; Debenhams Retail plc v Sun Alliance and London Assurance Co Ltd [2005] EWCA Civ 868; Growthpoint Properties Australia Ltd v Australia Pacific Airports (Melbourne) Pty Ltd [2014] VSC 556 at [12]–[16]; Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 91 ALJR 486 at 491; and Point Cook Community Entertainment Facility Pty Ltd v Geelong Football Club Ltd [2017] VSC 313 at [6]–[7]. As to the general process of construction, in relation to a commercial lease, Winneke P said, in Highpoint Homemaker Centre (Vic) Pty Ltd v Sanatar Pty Ltd (1997) V ConvR ¶54-564 (CA) (at 66,775): It is not in dispute that in construing an instrument of the type which we are asked to construe, it is the Court’s duty to endeavour to discover the intention of the parties from the words of the contract. As Gibbs, J said in Australian Broadcasting Commission v Australasian Performing Rights Association Ltd (1973)129 CLR 99 at 109: Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be resolved by other parts, and the words of every clause must, if possible, be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. These principles were expressed as part of a dissenting judgment but

the principles cannot be thought to be in doubt because Barwick, CJ, who with Stephen, J formed the majority, said (at p 105): But if that result is produced by the application of the words in which the parties have expressed themselves, it is no part of the function of a court by some [page 155] process of divination as distinct from the construction of the language employed, to attribute to the parties an intention to do something for which their express words do not provide. The court has no power to re-make the contract to avoid an unjust or inconvenient result. On the other hand, if the language of the instrument is open to two constructions, preference will be given to the one which will avoid the result which is considered inconvenient or unjust (per Gibbs, J Australian Broadcasting Commission Australian Performing Rights Association Ltd, supra, at 109). It is the effect of these rules of construction that where a court can glean from the written instrument what can be seen to be the real intention of the parties, it is bound to give effect to that intention even to the extent of rejecting as superfluous whatever is repugnant to the intention which is discerned (NGL Properties Pty Ltd v Harlington Pty Ltd [1979] VR 92 at 95 per Kaye, J; Gwyn v Neath Canal Navigation Co (1868) LR 3 Ex 209 at 215, per Kelly, CB). The cases in relation to the construction of leases and other documents are as many and varied as the particular provisions and circumstances considered. Nevertheless some principles or rules (the latter used in a loose sense in this context) do emerge, as indicated in, for example, Spunwill Pty Ltd v Bab Pty Ltd (1994) 36 NSWLR 290; and see also Lewison, particularly Chapter 2 ‘The Purpose of Interpretation’. In Spunwill Santow J provided a convenient summary of these principles or rules (in the course of considering a restraint of trade provision in a sale of business agreement) (at 298–300): 1.

In construing a contract which is in restraint of trade, the

2.

3.

ordinary rules applicable to contracts are applied: Mills v Dunham [1891] 1 Ch 576; Dubowski & Sons v Goldstein [1896] 1 QB 478; Haynes v Doman [1899] 2 Ch 13.] A presumption that the parties intended a written document to be the sole and exclusive repository of their agreement arises where the document is clear on its face, contains all terms appropriate to the transaction and is signed by the parties as the record of their agreement: LG Thorne & Co Pty Ltd v Thomas Borthwick & Sons (Australasia) Ltd [1956] SR (NSW) 81; (1956) 73 WN (NSW) 9. Extrinsic evidence is available to show that a document, ostensibly the entire and final contract, does not contain all the terms of the agreement but may for example be partly oral and partly written, or in more than one document: State Rail Authority of NSW v Health Outdoor Pty Ltd (1986) 7 NSWLR 170 at 191. However, where it is determined that the terms of the agreement are wholly contained in writing and are unambiguous or of a plain meaning, extrinsic evidence cannot be admitted to subtract from, add to, vary or contradict the language of the written agreement: Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 347. In construing a written document, the object is to discover and give effect to the contractual obligations that reasonable persons in the position of the parties would objectively have intended the document’s language to create. The emphasis is thus on giving effect to the apparent intention of the parties, and direct evidence of the parties’ actual subjective intentions and expectations is inadmissible for purposes of construction: Codelfa Construction Pty Ltd v State Rail Authority of NSW at 348 and 352; Schenker & Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd [1990] VR 834 at 840. [page 156]

4.

The language of a term is generally assigned its natural and

5.

6.

7.

ordinary meaning, read in the light of the contract as a whole but where it is ambiguous surrounding circumstances may be taken into account in assigning the presumed meaning. The surrounding circumstances include the matrix of mutually known facts, and the background, object, context and commercial purpose of the transaction, in the objective sense of what reasonable persons in the position of the parties would have had in mind: Codelfa Construction Pty Ltd v State Rail Authority of NSW (at 347–52); Schenker & Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd (at 844–50); Manufacturers’ Mutual Insurance Ltd v Withers (1988) 5 ANZ Insurance Cases ¶60-853 at 75,343. The consequences of alternative interpretations are not immaterial, and where the meaning of language in a contract is ambiguous, that interpretation will be preferred which avoids consequences which are in the circumstances capricious, unreasonable, unjust or not consonant with business efficacy: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109; Lewis Construction (Engineering) Pty Ltd v Southern Electric Authority of Queensland (1976) 50 ALJR 769; 11 ALR 305; Stillwell Trucks Pty Ltd v Nectar Brook Investments Pty Ltd (1993) 115 ALR 295; 10 ACSR 615. Every passage of a document must be read as part of the whole instrument. This may justify departing from what had seemed the plain meaning of a clause considered in isolation: The Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1925) 35 CLR 449 at 455–6. Where a court can discern the intent of the parties from an examination of the document as a whole, words may be supplied, omitted or corrected in the instrument, where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters (1956) 95 CLR 420 at 426–7. In such cases rectification of the document is not required: Re United Pacific Transport Pty Ltd [1968] Qd R 517; Codelfa Construction Pty Ltd v State Rail Authority of NSW (at 346).

8.

‘If, by any reasonable construction, the intention of the parties can clearly be arrived at from the document itself, then the court will give effect to that intention even though this involves departing from or qualifying particular words used. So the court will be prepared to restrict, transpose, modify, supply or reject words or terms in the documents, provided the intention of the parties is plain in spite of the words’: Chitty on Contracts, 26th ed, 1989, vol 1, para 827; Tropwood AG of Zug v Jade Enterprises Ltd (The Tropwind) [1982] 1 Lloyd’s Rep 232. The less settled question of whether post-contractual conduct of the parties may be taken into account in considering the surrounding circumstances and, if so, to what extent, is an issue requiring more detailed consideration later in my judgment. The latter question is considered further below; and, in this respect, the contrasting views of Bryson J in Sportsvision Australia Pty Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103 should be noted. As to the ‘correction’ etc of contractual provisions short of rectification (point 7, above), see [6.4.36]. Where possible, courts try to give effect to the bargain made between the parties and are very reluctant to find contracts void for uncertainty: see [4.2]. [page 157]

Evidence of surrounding circumstances [6.5] Following on from this summary attention is now directed to the extent to which regard may be had to surrounding circumstances for the purpose of construing the provisions of a lease. Surrounding circumstances were used to construe the lease in Downie v Lockwood [1965] VR 257 where the covenant to be construed was one whereby the lessee was to use the demised premises only as a dwelling house. For some years prior to the execution of the lease the tenant, with the knowledge of the landlord, had used the premises for the taking in of boarders. Smith J (at 263) held that this was a matter to which regard might be had, observing:

Then again the surrounding circumstances point to the wider meaning because it is the less restrictive of user. The plaintiff was already the tenant of the premises free from any restriction on user, and he had for years been using them for the purposes now said to be precluded by cl 7. The transaction, in its general nature, was an extension of the duration of his tenancy, giving him security of tenure without alteration in the rent payable. And in such a transaction it would seem odd to find a provision precluding the tenant from continuing the existing long established user. There is nothing in the evidence to suggest that it would have been of any advantage whatever to the grantor to impose such a restriction, and obviously it would have been a serious disadvantage to the tenant, who was deriving an income from the existing user. The case of City and Westminster Properties (1934) Ltd v Mudd [1959] Ch 129; [1958] 2 All ER 733, should not, in my view, be regarded as preventing the taking into account of these surrounding circumstances in determining which of its possible meanings the word ‘dwelling-house’ bears in cl 7: cf Hall v Lund (1863) 1 H & C 676; Hart v Hart (1881) 18 Ch D 670 at 692; [1881–5] All ER Rep Ext 1745; Bank of New Zealand v Simpson [1900] AC 182; Odgers, Construction of Deeds and Statutes, 4th ed, p 83. In Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Mason J stated the rule (see 348–52) which his Honour summarised in the following terms (at 352): The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. See also Prenn v Simmonds [1971] 1WLR 1381 at 1383–4 (HL) (per Lord Wilberforce); Plumrose Ltd v Real and Leaseholds Estates Investment Society Ltd

[1970] 1 WLR 52; Australian Broadcasting Commission v Australasian Performing Rights Association Ltd (1973)129 CLR 99; Reardon-Smith Line Ltd v Hansen Tangen [1976] 1 WLR 989 (HL); Westminster City Council v Duke of Westminster [1991] 4 All ER 136 at 141 (per Harman J); Ong v Luong (1991) 9 BPR 16,795 (where it was found that ‘lock-up shop …’ was not ambiguous etc); Spunwill Pty Ltd v Bab Pty Ltd (1994) 36 NSWLR 290; Highpoint Homemaker Centre (Vic) Pty Ltd v Sanatar Pty Ltd (1997) V ConvR ¶54-564 [page 158] (CA); Kilkerrin investments Pty Ltd v Yiu Ying Mei Pty Ltd (2001) Q ConvR ¶54-551; Royal Botanical Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45; [2002] ANZ ConvR 192; and Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; and see [6.4]. The status of the ‘true rule’ as expressed by Mason J in Codela has more recently been the subject of some conjecture, and of different judicial opinion: see Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2012] QSC 182; Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR 113; Newey v Westpac Banking Corporation [2011] NSWCA 319; Technomin Australia Pty Ltd v Xstra Nickel Australasia Operations Pty Ltd [2014] WASCA 164; Stratton Finance Pty Ltd v Webb (2014) 314 ALR 166; Grocon Constructors (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd [2015] VSCA 190. Some clarity has been provided in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, where French CJ, Nettle and Gordon JJ said: [47] In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; 306 ALR 25; [2014] HCA 7 at [35] (Electricity Generation). That enquiry will require consideration of the language used by the parties in the contract, the

circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract; Electricity Generation at [35]. [48] Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to a contract) cannot be adduced to contradict its plain meaning; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (Actions Nos 71 and 72 of 1981) (1982) 149 CLR 337; 41 ALR 367; [1982] HCA 21 at CLR 352; ALR 374 (Codelfa Construction); See also Sir Anthony Mason, “Opening Address” (2009) 25 Journal of Contract Law 1 at 3. [49] However, sometimes recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”; Electricity Generation at [35], citing Codelfa Construction at CLR 350; ALR 373, in turn citing Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995–6; [1976] 3 All ER 570 at 574 (Reardon Smith). The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals. [50] Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist [page 159] in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the

parties’ statements and actions reflecting their actual intentions and expectations; Codelfa Construction at CLR 352; ALR 374; Reardon Smith at WLR 995-6; All ER 574. The High Court then went on to say that ‘these observations are not intended to state any departure from the law as set out in Codelfa Constructions and Electricity Generations’: at [52]. Extrinsic evidence may be admitted as to whether the entire agreement between the parties is contained in the written document: see Norwest Beef Industries Ltd v Peninsular and Oriental Steam Navigation Co (1987) 8 NSWLR 568 (CA) at 570 (per Hope JA); and see Robinson v Day (1992) 106 FLR 423 at 426 (SC(ACT)). Evidence of subjective intention is not admissible to remove a patent ambiguity in the course of construing a document: see Leprina Appointments Pty Ltd v State Authorities Superannuation Board (1990) 5 BPR 97,332 at 11,171 (per McLelland J); and see Codelfa Construction. In Sykes v Ranken (1971) EG 1005, the question of whether the defendant accepted an offer of a lease (containing certain terms) was resolved by looking at his conduct during the relevant period. In Graystone Property Investments Ltd v Margulies [1984] 1 EGLR 27 the Court of Appeal took account of the usual expectation in construing the lease of a flat as including all the space between the floor of the flat and the underside of the flat above, the effect of which was to include the area above a false ceiling. Nevertheless attention should first be given to the terms of the lease read as a whole. In Straudley Investments Ltd v Barpress Ltd [1987] 1 EGLR 69 (CA) it was held that it could be inferred that the demise was of the whole building including the roof and airspace, although not specified in the parcels clause, because the intention was clear that the tenant’s repairing covenant included the roof. Surrounding circumstances may not be used to vary the natural and ordinary meaning of clear and unequivocal words: Re Automotive & General Industries Ltd’s Lease (SC(Vic), Adam J, 1 May 1970, unreported). If a covenant in a sublease follows the language of a covenant in the head lease it may be necessary to give the same meaning to the words in question in both instruments notwithstanding the existence of surrounding circumstances which might affect the interpretation of the sublease but which could not be

used in construing the head lease, Re Automotive & General Industries Ltd’s Lease. Where an instrument is in a printed form with written additions or alterations, the written words (subject always to being governed in point of construction by the language and terms with which they are accompanied) are entitled in a case of reasonable doubt as to the meaning of the whole to have greater effect attributed to them than the printed words: see Addis v Burrows [1948] 1 KB 444 (CA) at 449 (per Evershed LJ); and at 457 where Lord Greene MR said: [page 160] … apart from striking any words out, the fact that the parties have deliberately typed into this document words creating a tenancy for eighteen months made it clear that it must be so construed, and that, if necessary, the subsequent words in print must yield to that construction. Nevertheless it has been said that this does not mean that the printed terms are to be overridden, if clear, or ignored in the overall construction process: ‘we are to take the whole together, both the written and the printed parts’: see Joyce v Realm Marine Insurance Co (1872) LR 7 QB 580 at 583 (per Blackburn J). But the courts soon moved to giving more weight to the written terms which, in all probability, represent the more considered position of the parties. Thus in Western Assurance Company of Toronto v Poole [1903] 1 KB 376 at 388 Bingham J said that the written clause must prevail where the written and printed clauses are inconsistent. Similarly, in G H Renton & Co Ltd v Palmyra Trading Corporation of Panama [1956] 1 QB 462 (CA) where Jenkins LJ said (at 501): … where … any of the printed conditions is found to be inconsistent with or repugnant to the main object and intention of the bill of lading as disclosed by the terms specially agreed, the court will limit or modify the conflicting printed condition to the extent necessary to

enable effect to be given to such main object and intention, or in the case of complete repugnancy wholly reject it. See also Riley (Inspector of Taxes) v Coglan [1967] 1 WLR 1300; and Lewison, The Interpretation of Contracts (6th ed), para 9.10. The more modern cases in this context reflect the general approach of the courts that they will try to give effect to the bargain made between the parties: see [4.2]. The fondness for printed forms of leases and other instruments gives this rule some practical importance in matters of real property and landlord and tenant. In Mobil Oil Australia Ltd v Kosta [1970] ALR 253; 14 FLR 343, it was held, not following TJ Watkins Ltd v Cairns Meat Export Co Pty Ltd [1963] Qd R 21, that in construing the agreement the court was not entitled to have regard to words which had been struck out of the agreement. The court refused to look at words struck out in Harrod v Palvaris Construction Pty Ltd (1973) 8 SASR 54. In City and Westminster Properties (1934) Ltd v Mudd [1959] Ch 129; [1958] 2 All ER 733, Harman J declined to look at words which appeared in a draft and did not appear in the lease as executed. His Lordship referred to commercial cases where printed forms had been used and attention had been paid to words struck out and said that, assuming that method of construction to be legitimate, it must be confined to commercial cases where the words struck out appeared on the face of the signed documents and could not be extended to looking at words which appeared in a draft. Leases, like other deeds, are to be construed against the grantor: Johnson v Edgware Railway Co (1866) 55 ER 982 at 983–4. A proviso for re-entry will be construed strictly: Doe d Abdy v Stevens (1832) 3 B & Ad 299; 110 ER 112. In Robinson v Day Higgins J said (at 106 FLR 426) referring to the judgment of Mason J in Codelfa Construction that: [page 161] A specific refusal to include a particular term might, his Honour said, be receivable in evidence. Higgins J continued (at 426): The parties should not be presumed to have intended a meaning they

have expressly rejected. In NZI Capital Corporation Pty Ltd v Child (1991) 23 NSWLR 481, Rogers CJ Comm D gave effect to that qualification. His Honour received evidence of refusal to include a term which, in the absence of such evidence, would have otherwise been taken to have been implied. In Brennan v Kinjella (1993) 6 BPR 97,442 at 13,172 Young J also adopted the approach taken in NZI Capital Corporation which, in turn, relied upon the statements of Mason J in Codelfa Construction at 149 CLR 352–3. Some earlier contrary authorities (including Mobil Oil Australia Ltd v Kosta) were also referred to by Young J at 13,172. Similarly in Centrepoint Custodians Pty Ltd v Lidgerwood Investments Pty Ltd [1990] VR 411, Ormiston J had regard to clauses deleted from the lease by orders made by the Federal Court under the Trade Practices Act 1974 (Cth) for the purpose of interpreting other, undeleted, parts of the lease. On the basis of the more recent decisions the law appears to be as stated by Rogers CJ Comm D in NZI Capital Corporation. In Ecosse Property Holdings Pty Ltd v Gee Dee Pty Ltd (2017) 343 ALR 58; (2017) 91 ALJR 486, the High Court noted that each party to the appeal accepted it was permissible for courts to have regard to words deleted from a standard form contract, but which remained legible on the face of the document, as an aid to the proper construction of the relevant clause. This does not affect the rule that evidence of subjective intention is not admissible to remove a patent ambiguity in the course of construction: see Leprina Appointments and Codelfa Construction. As the cases indicate, there is also controversy as to whether a court is permitted to consider deleted provisions of documents in circumstances where the document in which the deletion is found is not a contract in a standard form in general use and also whether deletions can only be considered in circumstances where the remaining words of the contract produce an ambiguity: see Lewison, pp 93–4, para 3.04. These reservations appear to stem from the judgment of Diplock J in Louis Dreyfus & Cie v Parnaso Cia Naviera SA [1959] 1 QB 498 at 513, but do not appear to be supported in the first respect by an advice of the Privy Council in Sassoon & Sons Ltd v International Banking Corp [1927] AC 711 or, in the second respect, by a decision of the House of Lords in Inglis v Buttery (1878) 3 App Cas 552: and see Lewison, pp 93–4, para 3.04. Subject to these comments it is helpful to refer to part of the

speech of Lord Cross of Chelsea (with whom the two other members of the majority in the House of Lords, Lord Hodson and Lord Wilberforce agreed) in Mottram Consultants Ltd v Bernard Sunley & Sons Ltd [1975] 2 Lloyd’s Reports 197 at 209: One must I think, first ask oneself what the position would have been had the contract not been varied. Suppose that Mottrams were alleging that the architect had negligently stated in several interim certificates that expenses had been incurred by the contractor [page 162] in executing the works which had not in fact been incurred and were claiming to deduct the amounts which they said had been improperly included in the earlier certificates from the amount stated to be due in a subsequent certificate. In the absence of any suggestion of fraud on the part of the architect or the contractor — and there is, of course, no suggestion of fraud here — I cannot see how it could have been argued that such a deduction could be made. Condition 28(d) states that the only sums which can be deducted from the amount stated to be due in an interim certificate are (i) retention money and (ii) any sum previously paid. It is, moreover, to be noted that the printed form which the parties used provided for a third permissible deduction which the parties deleted. It ran as follows: (iii) Any amount which the employer or the co-ordinator on his behalf shall be entitled to deduct from or set off against any money due from him to the contractor (including any retention money) in virtue of any provisions of the contract or any breach thereof by the contractor. When the parties use a printed form and delete parts of it one can, in my opinion, pay regard to what has been deleted as part of the surrounding circumstances in the light of which one must construe what they have chosen to leave in. The fact that they deleted (iii) shows that these parties directed their minds (inter alia) to the question

of deductions under the principle of Monde v Steel and decided that no such deductions should be allowed. A fortiori no deduction could have been allowed for an alleged mistake by the architect in issuing a certificate. At first sight the Victorian decision in Centrepoint Custodians Pty Ltd v Lidgerwood Investments Pty Ltd [1990] VR 411 (per Ormiston J) may be thought to be authority for the proposition that further evidence will be required in relation to the purposes of the parties in making deletions to a document. However, a consideration of the whole of the judgment of Ormiston J in that case appears to indicate that any comments made by Ormiston J in this vein are not authority for this proposition. They were directed to the issue whether evidence may be relied upon to establish that the parties have departed from ‘certain standard or conventional terms or conditions’ under which they were ‘accustomed to dealing with each’; in which circumstance ‘it would not seem necessary to establish that fact by reference only to the crossing or striking out of particular printed terms on a form, as long as it could be shown by appropriate evidence that all parties were aware of the whole of the terms of a standard or conventional contract’: at 423. Rather, it appears that the position with respect to deletions, in this context, is conveniently summarised by Ormiston J in the following passage (at 422: and see 421–2): A distinction drawn in the authorities appears to have been given some significance. On the one hand there is no case of which I am aware in which a court has looked for the purpose of interpretation to a draft contract or term which has been rejected in the course of negotiations, although in several cases, some of which have been cited above, a court has been prepared to look at a clause or words which have appeared on, but which have been struck out of, a standard form contract. This distinction has been justified by saying that evidence of negotiations is always irrelevant to the process of construction, but that a deliberate and mutually agreed deletion of a standard form term may throw [page 163]

light on the parties’ intentions in cases of ambiguity: cf City and Westminster Properties (1934) Ltd v Mudd [1959] Ch 129, at pp 140–1 and London and Overseas Freighters Ltd v Timber Shipping Co SA [1972] AC 1, at pp 15–16. In many ways there is robust common sense in looking at terms which undoubtedly all parties have deliberately chosen to strike out, certainly where part of the structure of a conventional or well known form is deleted. The distinction is, however, one which is hard to justify, for in an era of word processors standard agreements take many forms, and it may be just as clear from other extrinsic evidence that both parties have agreed not to include a term normally found in a standard contract or in a contract which the parties have frequently used for earlier transactions, which for brevity I have called ‘conventional’ contracts. In the present general context reference should also be made to the question whether a court may have regard to the deletion of material from earlier drafts of a written agreement. This question was considered by Hayne J (then a Judge of the Victorian Supreme Court) in Jasam (AMC) Pty Ltd v The Australis Marketing Corporation (Int) Pty Ltd (SC(Vic), Hayne J, 23 February 1995, unreported) (at 20–2): However, as Mason J acknowledged in Codelfa (149 CLR at 352–3): There may perhaps be one situation in which evidence of the actual intention of the parties should be allowed to prevail over their presumed intention. If it transpires that the parties have refused to include in the contract a provision which would give effect to the presumed intentions of persons in their position it may be proper to receive evidence of that refusal. After all, the Court is interpreting the contract which the parties have made and in that exercise the Court takes into account what reasonable men in that situation would have intended to convey by the words chosen. But is it right to carry that exercise to the point of placing on the words of the contract a meaning which the parties have united in rejecting? It is possible that evidence of mutual intention, if amounting to

concurrence, is receivable so as to negative an inference sought to be drawn from surrounding circumstances. Now, as I have said elsewhere, Esso Australia Ltd v Australian Petroleum Agents’ and Distributors’ Association (unreported 5 October 1993) the trend of authority would seem now to be in favour of receiving evidence of the fact of rejection of a particular form of a draft if to do so would negative an inference sought to be drawn from the surrounding circumstances that the contract bears a meaning that is positively rejected by the parties. (See NZI Corporation v Child (1991) 23 NSWLR 481 at 490–494; MCA International BV v Northern Star Holdings Ltd (1991) 4 ACSR 719 at 725; Brennan v Kinjella Pty Ltd [1993] NSW ConvR 59,858.) However I do not consider that it is every deletion or every rejection of a form of words in an earlier draft that may be tendered in evidence as an aid to construction. First, it may be that if the words used in the final written agreement are clear and unambiguous they should be given effect according to their terms unless one party is able to obtain rectification of the instrument. Second, even if the words of the contract are ambiguous and resort is had to surrounding circumstances, the bare fact of rejection of an earlier draft or deletion of particular words may be equivocal. Thus, the rejection of the earlier draft or deletion of particular words may say nothing about how or why the parties took those steps. Was it because the new draft was thought to be more elegant or achieved the particular ends of one or other of the parties? Perhaps this is [page 164] why there is what Diplock J referred to as ‘a pleasant diversity of authority’ concerning the effect that should be given to the deletion of words in construing agreements (Louis Dreyfus & Cie v Parnaso Cie Naviera SA [1959] 1 QB 498, 513). Mason J spoke in Codelfa only of circumstances in which parties

united in rejecting a particular meaning and of ‘evidence of mutual intention, if amounting to concurrence’ as receivable to negate an inference sought to be drawn from surrounding circumstances and I tend to the view that it is only evidence of that kind that is receivable. Thus in the present case the evidence tendered should be rejected unless it shows a united rejection of a meaning or concurrent mutual intention.

Subsequent conduct and prior negotiations [6.6] As has been foreshadowed (see Spunwill Pty Ltd v Bab Pty Ltd ((1994) 36 NSWLR 290 at 300), where a document is the subject of ambiguity in the sense that it is capable of more than one meaning, the question arises whether evidence is admissible of what the parties said or did under the document for the purpose of seeing whether it is to be construed as bearing one or another of the possible meanings. In FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343 (FC) it was held that such evidence was not admissible: compare Robinson v Hudson (1950) 68 WN (NSW) 9 and Appleby v Pursell [1973] 2 NSWLR 879; and see Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 (CA) where the question was discussed but was not necessary to determine. Brooking J in FAI Traders Insurance reviewed the often conflicting or ambiguous authorities. His Honour, with whom the other members of the court agreed in substance, reached the position that the views of the House of Lords endorsed by Menzies, Gibbs and Stephen JJ in Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 (at 405, 446 and 460, respectively) should be adopted. Gibbs J (with whom Menzies and Stephen JJ agreed) said (at 446): The general principle of the law is that ‘it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made’: Whitworth Street Estates (Manchester) Ltd v James Miller & Partners Ltd [1970] AC 583, at p 603; see also [1970] AC, at pp 606, 611, 615; L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235, at pp 252, 259–60, 261, 265–70, 272–73. Gibbs J in that part of his Honour’s judgment quoted by Brooking J (at [1993] 2 VR 349–50) continued, referring to some exceptions:

However, the decision in Watcham v Attorney-General (East Africa Protectorate) [1919] AC 533 that evidence may be given of subsequent conduct of the parties for the purpose of resolving an ambiguity in an instrument relating to land, although criticized, may possibly be supported as laying down a special rule for the interpretation of such instruments: see L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235. Reference was also made to the exception with respect to the construction of ‘ancient’ documents: North Eastern Railway Company v Lord Hastings [1900] AC 260 at 268–9. The court of FAI Traders Insurance apparently did not consider either exception [page 165] to be relevant (and, of course, the lease was not an ‘ancient’ document). Brooking J continued (at [1993] 2 VR 350): Even if the matter rested there [ie with the PNG case] I would have no doubt that this court should adopt the view taken by the House of Lords and endorsed by three members of the High Court, but there is in addition a seventh decision of the High Court, Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, where Mason J, as his Honour then was, cited with approval, at p 348, something that Lord Wilberforce had said in the Schuler case: The general rule is that extrinsic evidence is not admissible for the construction of a written contract; the parties’ intentions must be ascertained, on legal principles of construction, from the words they have used. It is one and the same principle which excludes evidence of statements, or action, during negotiations, at the time of the contract, or subsequent to the contract, any of which to the lay mind might at first sight seem to be proper to receive. The part of the judgment of Mason J in which this citation appears was concurred in by Stephen J, at p 344, and Wilson J, at p 392.

Any general principle that the conduct of the parties after a contract has been made may be used as throwing light on its meaning would be uncertain in its operation and mischievous in its effect. The present case affords a good example. This is a lease of a valuable building for a term of 71 years. Is a prospective purchaser of the term to ascertain its provisions not simply by examining the instrument but also by calling for evidence of what has been done under it? Is there any limit to the conduct to which regard may be had as an aid to interpretation? Does it include mere statements as opposed to acts? Is the conduct of one party admissible or must the conduct be the concurring conduct of all? Is the conduct of a party which favours the view on construction which his supports admissible even if it is not concurred or acquiesced in by the other? In principle, why should evidence of subsequent conduct be admissible where direct evidence of intention is not? FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd was considered at length but not followed by Santow J in Spunwill Pty Ltd v Bab Pty Ltd (at 36 NSWLR 304–12). In general terms Santow J declined to follow the Victorian Full Court on the basis that the position adopted with respect to evidence of subsequent conduct was not justified by earlier Australian (including High Court) authority (at 304–8); there is no special rule that such evidence should be excluded, the question is only an issue within the parol evidence rule (at 308); the admission of such evidence is not at odds with the so-called objective theory of contract (at 309–12); and such evidence is admissible in other jurisdictions with comments or indications in the cases that this is desirable (307 and 312, at the latter referring to Re Canadian National Railways and Canadian Pacific Ltd (1978) 95 DLR (3d) 242 at 262 (per Lambert JA)). Thus the position reached was that although the general rule is that evidence of subsequent conduct is not admissible it is not an absolute rule, any more than the rule with respect to evidence of prior negotiations (at 309). More particularly Santow J said (at 306–10): Caution as to the conclusions reached in FAI Traders [(1993) Aust Contract Reports ¶90-025] is required due to the weight given by Brooking J, with whom the other

[page 166] judges agreed, to the authority of Administration of the Territory of Papua and New Guinea v Daera Guba. Despite the views of the New South Wales Court of Appeal in Hide and Skin Trading, Brooking J in FAI Traders (at 89,583) [at [1993] 2 VR 349–50], treated Administration of the Territory of Papua and New Guinea v Daera Guba as decisively overruling the earlier authorities, for the reasons that the passage of Gibbs J represented ‘a considered statement of principle in the light of the decisions of the House of Lords’, and that the views of the House of Lords were ‘endorsed by three members of the High Court’. In the context of considering the validity of an order in council in Administration of the Territory of Papua and New Guinea v Daera Guba, Gibbs J stated (at 446): If it were admissible to give evidence of acts done under the Order in Council for the purpose of resolving an ambiguity in it, the instrument registered on 17 March 1905 would provide the strongest evidence that the boundary of the land described in the schedule to the Order in Council was intended to go round section I to section VIII. The general principle of the law is that ‘it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made’: Whitworth Street Estates (Manchester) Ltd v James Miller & Partners Ltd [1970] AC 583 at 603; see also [1970] AC at 606, 611, 615; L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235, at 252, 259–60, 261, 265–70, 272–73. However, the suggestion that the dicta in Administration of the Territory of Papua and New Guinea v Daera Guba represents a sufficiently unequivocal endorsement of the views of the House of Lords to overrule previous High Court authorities such as White must be regarded as somewhat questionable for two reasons, at least. First, while Menzies J and Stephen J gave general agreement to the comprehensive and lengthy discussion by Gibbs J of the several alleged

causes of invalidity in the order, they did not expressly mention the question of post-contractual conduct. Secondly, because Gibbs J was able to conclude that the order in council on its proper construction included the land in question without recourse to subsequent conduct, he did not have to embark on a comprehensive examination of this question. Though Gibbs J did in dicta endorse the English rule, he did so without addressing previous Australian authority on this topic, without examining the justifications for such an exclusionary rule, and without considering the possibility that the law in Australia may differ from that in England, as indeed it does in Canada (see cases cited in Hide & Skin Trading (at 315)), the United States (Uniform Commercial Code 1987, text, par 2-208; Restatement (Second) Contracts, par 202(4)), and ‘every other civilised system of law, including the countries of the common market’: per Lord Denning in Port Sudan Cotton Co v Govindaswamy Chettiar & Sons [1977] 2 Lloyd’s Rep 5 at 11. (New Zealand may experience some regret at its apparent relegation to the realms of uncivilised systems of law as a result of Herriott v Crofton Holdings Ltd [1974] 2 NZLR 383.) Thus while the statement of Gibbs J in Administration of the Territory of Papua and New Guinea v Daera Guba, invites the conclusion that the earlier High Court authorities employing subsequent conduct as an aid to construction of written contracts are now in doubt, it should not be treated as decisive of the issue. Possibly the most important reason that caution is required as to the conclusion expressed by FAI Traders, is due to the treatment given the decision of Mason J in Codelfa Construction. Brooking J noted (at 89,583) [at [1993] 2 VR 350] that Mason J [page 167] (at 348) cited with approval a portion of Lord Wilberforce’s judgment in L Schuler AG, in a passage with which Stephen J agreed (at 344) and

Wilson J agreed (at 392). The relevant passage from the judgment of Mason J in Codelfa Construction (at 348) is as follows: On the other hand, it has frequently been acknowledged that there is more to the construction of the words of written instruments than merely assigning to them their plain and ordinary meaning — see, for example, the remarks of Knox CJ in Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 69. This has led to a recognition that evidence of surrounding circumstances is admissible in aid of the construction of a contract. So Lord Wilberforce in L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 at 261 was able to state the broad thrust of the rule in this way: The general rule is that extrinsic evidence is not admissible for the construction of a written contract; the parties’ intentions must be ascertained, on legal principles of construction, from the words they have used. It is one and the same principle which excludes evidence of statements, or actions, during negotiations, at the time of the contract, or subsequent to the contract, any of which to the lay mind might at first sight seem to be proper to receive. His Lordship noted that evidence of surrounding circumstances is an exception to the rule, but he had no occasion to discuss its scope for there it was not, as it is here, a critical question. [My emphasis.] Brooking J in FAI Traders quoted only the middle paragraph from the above passage, and relied upon it as support for a special rule specifically preventing use of subsequent conduct as an aid for the construction of written documents. It was assumed in FAI Traders that there was no exception to this special rule. However, when read in context, the passage from Codelfa Construction appears to invite a contrary conclusion. Rather than being excluded by a special rule, subsequent conduct is excluded as part of the parol evidence rule: the parties’ intention must be determined from the words they used, and extrinsic evidence is not available for the construction of a written

contract, whether that extrinsic evidence is from prior to, at the time of, or subsequent to the time of contracting: see also Australian Estates Ltd v Palmer (Court of Appeal, 22 December 1989, unreported) at 50, per Samuels JA, with whom Kirby P agreed. Further, the parol evidence rule is subject to the exception that evidence of surrounding circumstances is available as an aid to construction of an ambiguous written contract, an exception whose scope was not defined in L Schuler AG. The possibility is thus raised, if subsequent conduct is excluded by the general parol evidence rule rather than specifically excluded by a special rule of construction, that such evidence may in some circumstances satisfy the criteria necessary to be admissible under the recognised exceptions to that rule, and in particular the ‘surrounding circumstances’ exception. Thus the status of subsequent conduct is not to be decided by the opinions of the House of Lords in L Schuler AG, but rather by an examination of Codelfa Construction to determine the scope of the surrounding circumstances exception to the parol evidence rule. Mason J discusses the scope of this exception in Codelfa Construction. It is worth quoting from the judgment of his Honour (at 353) in some detail: The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible [page 168] of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. It is here that a difficulty arises with respect to the evidence

of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both the parties and the subject matter of the contract. To the extent which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification. Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract. Mason J makes it clear, in the passage quoted above, that the scope of the ‘surrounding circumstances’ exception to the parol evidence rule is to be determined in the context of the objective theory of the contract. The object of construction is to determine the apparent intention of the parties at the time of contracting; that is, to discover and give effect to the contractual obligations that reasonable persons in the position of the parties would objectively have intended the document’s language to create. Extrinsic evidence is only available to the extent it assists in this process of determining the presumed

intention of the parties, by placing the language of the document in the context of the objective framework of facts from which it arose. Extrinsic evidence of facts, statements and conduct known to both parties when the contract was made is relevant to this process, as it will illuminate the meaning that reasonable persons in the position of the parties objectively intended ambiguous language of the document to bear. Extrinsic evidence which merely illuminates the actual subjective intentions, aspirations or expectations of the parties does not assist in discovering the presumed intention and is inadmissible. The question thus arises as to whether extrinsic evidence of subsequent conduct can ever assist in this process of determining the presumed intention of the parties. Clearly the fact that post-contractual conduct is known to both parties is not relevant, as the object is to determine the apparent intention of the parties at the time of contracting. Such conduct, however mutually known, was not part of the objective background facts at [page 169] that time. Subsequent conduct generally only has a logical relevance to the meaning of a contract as later evidence of what the parties believed the contract originally meant at the time of contracting. To the extent that this belief was not mutual, such a logical relevance is dispelled under the objective theory of contract discussed by Mason J in Codelfa Construction. Thus the general rule is that subsequent conduct may not legitimately be employed as an aid to construction. This general rule is not, however, absolute. Under the objective theory of the contract, evidence of actual intention is admissible in the limited circumstance where it is evidence of a ‘shared subjectiveness’, that is to say of matters in common contemplation or of common assumption. Such matters of mutual subjective intention are themselves part of the objective framework of facts within which the contract came into existence, and are thus receivable as part of the surrounding factual

circumstances. For example, extrinsic evidence is admissible to show that the parties negotiated on the basis that ambiguous language had a particular meaning; parties can in effect give their own dictionary meaning to words as a result of their common intention: per Kerr J, The Karen Oltmann [1976] 2 Lloyd’s Rep 708. To be admissible, the extrinsic evidence must unambiguously show actual common agreement as to the meaning of an expression: Burns Philp Hardware Ltd v Howard Chia Pty Ltd; Secured Income Real Estate (Australia) v St Martins Investments Pty Ltd (1979) 144 CLR 696; Mason J in Codelfa Construction (at 354) allows use of prior negotiations for the purpose of revealing matters in common contemplation or of common assumption. He states (at 352–3): After all, the court is interpreting the contract which the parties have made and in that exercise the court takes into account what reasonable men in that situation would have intended to convey by the words chosen. But is it right to carry that exercise to the point of placing on the words of the contract a meaning which the parties have united in rejecting? It is possible that evidence of mutual intention, if amounting to concurrence, is receivable so as to negative an inference sought to be drawn from surrounding circumstances. Thus evidence of a mutual subjective intention is admissible as part of the surrounding circumstances, as an objective fact that illuminates the meaning a reasonable person in the position of the parties would attach to a provision. Mutual subjective intention is a factor to be taken into account in determining presumed intention, without necessarily being determinative. As was said in an analogous context: ‘Actual subjective intention to contract is a factor which the law takes into account in determining whether a contract exists but it is not, or not always, the determining factor’: Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 at 330, per Mahoney JA. His Honour then considered the question whether any other factors required a different position to be taken as to the admissibility of pre-

contractual and post-contractual intention and concluded that they did not (see 36 NSWLR 310–11). However, the approach of Santow J to the subsequent conduct of the parties was not adopted by Bryson J in Sportsvision Australia Pty Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103 at 114–16: The English law on this subject is very clear: the later conduct and statements of parties are not admissible even to resolve an ambiguity in the meaning of the contract. It is [page 170] admissible to identify the things with which the contract deals, and that is a different subject. The law was stated clearly and shortly in speeches in the House of Lords in James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583. Lord Reid stated the basis of the doctrine (at 603): ‘I must say that I had thought that it is now well settled that it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made. Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later.’ In L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 views to a similar effect were expressed in the House of Lords. An exception relating to land titles based on Watcham v Attorney-General of East Africa Protectorate [1919] AC 533 was considered. In most of the speeches treatment was brief. Lord Reid (at 252), Lord Morris of Borth-Y-Gest (at 260), Lord Kilbrandon (at 272). Lord Wilberforce spoke at greater length (at 261–262) and Lord Simon of Glaisdale (at 265–270). It is significant that Lord Simon (at 269) referred to the opinion of Baron Parke in Shore v Wilson (1842) 9 Cl & F 355 at 555–556; 8 ER 450 at 528–529 which referred to the admissibility of evidence of the meaning of foreign and technical language and for the identification of

the subject matter and went on, as quoted by Lord Simon (at 270), to say: From the context of the instrument, and from these two descriptions of evidence, with such circumstances as by law the court, without evidence, may of itself notice, it is its duty to construe and apply the words of that instrument; and no extrinsic evidence of the intention of the party to the deed, from his declarations, whether at the time of his executing the instrument, or before or after that time, is admissible; the duty of the court being to declare the meaning of what is written in the instrument, not of what was intended to have been written. In Australia the authorities up to 1990 were referred to in the judgment of Kirby P in Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 at 315–316, with references to the position in New Zealand, Canada and the United States and to the dangers of expanding the field of inquiry. Priestley JA (with whom Meagher JA agreed (at 331)) made a lengthier examination of Australian and English authority. Statements in judgments in the High Court in Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 treat the House of Lords decisions as establishing the general principle that ‘… it is not legitimate to use as an aid in the construction of the contract anything which the party said or did after it was made’: Gibbs J (at 446). However Priestley JA regarded expressions in judgments in White v Australian & New Zealand Theatres Ltd (1943) 67 CLR 266 as being to a different effect, including an enumeration by Williams J (at 281) of matters admissible to identify the meaning of words in a written contract. It was Priestley JA’s view (at 328) that as there seemed to be conflicting authority in the High Court it was prudent to consider the effect of the evidence. When considered the evidence did not affect construction of the contract. In White, Williams J (at 281) set out eight surrounding circumstances admissible in evidence to identify the meaning of the

words ‘sole professional services’ including two which were later conduct relating to the subject of the agreement. In my respectful [page 171] view, the inclusion by Williams J of those circumstances among the material considered for the purpose of identifying the ‘sole professional services’ referred to in the letter of agreement was entirely orthodox and furnishes no support for any view in which resort may be had to parties’ later conduct and behaviour for resolving ambiguities in the text of an agreement or for construction of what the written agreement said. In FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343 and in Re Homfray Carpets Australia Pty Ltd & Hycraft Carpets Pty Ltd (1996) 14 ACLC 555, the Court of Appeal of Victoria has adhered firmly with the position as established in England. In Spunwill Pty Ltd v Bab Pty Ltd (1994) 36 NSWLR 290 at 304 to 312, Santow J in this Division expressed a different view. I see the treatment of this subject in the judgments in the Hide & Skin Trading case in a different way to Santow J. To my reading the judgments do not support any different view to that of Gibbs J in Daera Guba. With respect I do not understand Priestley JA as endorsing the views expressed in White by observing that those views were entirely rational. In the case of an oral agreement, later statements and conduct of the party could well be admissible as admissions or constructive admissions of the meaning of terms on which parties had agreed, and there is no rule of exclusion of evidence extrinsic to oral statements constituting agreement. It could not be said that it is not rational to adopt a rule admitting such evidence where the agreement was in writing; nor could that be said of adopting the contrary rule. Priestley JA was directing himself to the state of authority, and the incontestable observation that the broad view is entirely rational did not express adherence to that view. Notwithstanding the force which would ordinarily be attributed to a later considered statement in High

Court judgments, Priestley JA’s conclusion was that the earlier statements made it prudent to consider what conclusion would be reached on the broader basis. In my opinion it cannot be said that Kirby P came to a conclusion supporting the broader basis. In my view the opinions expressed in Administration of the Territory of Papua New Guinea v Daera Guba, coming as they did after the High Court had given attention to the subject a number of times earlier in the century and after a very firm conclusion had been reached for the law in England, have great force for courts in New South Wales, including primary judges like myself. A rule in which later declarations and conduct could be looked to where admissible to resolve ambiguities would have advantages as well as inconveniences; but there is no such rule. In my respectful opinion the consideration stated by Lord Reid is of overwhelming and unanswerable importance. The contract cannot mean one thing if it is never acted on, and something else if it is. The meaning of the words used in a written agreement is the same, in my opinion, whether the parties did not ever do anything under it, or acted on it every day for many years, and cannot change if evidence of what they did under it becomes unavailable because the contract has been forgotten, or because everyone concerned is now dead. There are also policy considerations which weigh strongly against acting on such evidence; it is an invitation to engage in contrived behaviour, and it would lead to the admission of large bodies of evidence which in their nature require interpretation and are more difficult to interpret than the original agreement; to be picked over for assertions that they show something about the original agreement: an expanded inquiry on an inherently less reliable body of material than what the parties recorded at the time they came to agreement. It would be necessary to infer their earlier intentions from their later actions and intentions, using some form [page 172]

of the presumption of continuance. Litigants would be tempted to prove every event in relation to performance and to assert that they all contained grains of confirmation. The parties’ later declarations and conduct do not bear directly on the matter in issue, which is what their intentions were at the time when they entered into the Agreement. Bryson J then noted references, in Grant v Grant (1870) 5 CP 727 (at 728 and 729), by Blackburn J to his own text ‘Contract of Sale’ (1845), and said that the text references did not support reference to evidence of later conduct to resolve ambiguity, or to do anything but to identify the subject matter referred to; but were to the contrary: see (1998) 44 NSWLR 103 at 116–18. The position taken by Bryson J received support in the judgment of Heydon JA (with whom Mason P and Ipp J generally agreed, but did not specifically explore this issue; and cf Ipp J at [140], which may be thought to be equivocal in the present context) in Brambles Holdings Ltd v Bathurst City Council (2001) NSWLR 153 at 164: [26] The third relevant principle is that post-contractual conduct is not admissible on the question of what a contract means as distinct from the question of whether it was formed. As explained by Priestley JA (Meagher JA agreeing) in Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 at 326–330, the status of the relevant High Court authorities is unclear: hence unless it is demonstrated that the later decisions of the Victorian Full Court and Court of Appeal against admissibility, Ryan v Textile Clothing & Footwear Union of Australia [1996] 2 VR 235 and FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343, are clearly wrong or they are overruled, they should be followed in New South Wales. No attempt was made to demonstrate that they are clearly wrong. Ipp JA (with whom Meagher and Heydon JJA agreed) made further comment on the issue in C H Magill v National Australia Bank [2001] NSWCA 221; (2001) Aust Contract R ¶90-131, noting that the issue was yet to be authoritatively determined: [50] The admissibility of subsequent conduct as an aid to the construction of a contract remains to be authoritatively resolved. It is

sufficient to point to the differing views flowing from Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 expressed by Santow J in Spunwill Pty Ltd v Bab Pty Ltd (1994) 36 NSWLR 290 (where subsequent conduct was held to be potentially admissible) and by Bryson J in Sportsvision Australia Pty Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103 (where the contrary was held). [51] In my respectful opinion the views expressed in Sportsvision Australia Pty Ltd v Tallglen Pty Ltd are to be preferred. Like Bryson J, I consider the reasoning of Lord Reid in James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 at 603 to be unanswerable. His Lordship there said: I must say that I had thought that it is now well settled that it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made. Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or year later. [page 173] [52] The force of these remarks is well illustrated by the present case. I have come to the conclusion that, as at 20 November 1978, upon a construction of the written record of the contract of loan constituted by the letter of that date, CBC was the lender of the loan to be made thereunder, and not PIBA. In theory, were it to be permissible to have regard to the conversation nearly two months later between Mr Magill and Mr Munro, the contract of loan might then be differently construed, with PIBA and not CBC being held to be the lender. On this basis, CBC would be held to be the lender for nearly two months and PIBA the lender thereafter. This would be a situation of incongruity that the law could not tolerate. [53] Other intermediate courts of appeal have concluded that

subsequent conduct is not admissible for the purposes of construing a contract: see FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343; Hamfray Carpets Australia Pty Ltd v Hycraft Carpets Pty Ltd (1996) ACLC 555; Winstonu Pty Ltd t/as Harvey Norman Electrics v Pitson [2001] FCA 541. This is the law of England: L Schuler AG v Wickman Machine Tools Sales Ltd [1974] AC 235. I would adopt this rule. As to Victoria, in so far as the law in that state as to the admissibility of evidence of subsequent conduct is settled by FAI Traders, the judgment of Santow J in Spunwill Pty Ltd v Bab Pty Ltd provides a useful analysis of the authorities on the admissibility of extrinsic evidence generally. In PCM Nominees (No 2) Pty Ltd v Brighton Bay Developments Pty Ltd (2007) V ConvR 54-727; [2006] VSC 351, Whelan J said, with respect to the position in Victoria: [51] The Court of Appeal has made it clear that the position in Victoria is that evidence of later conduct is inadmissible for the purpose of interpreting a contract [FAI Insurance Traders Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343; Ryan v Textile Clothing and Footwear Union of Australia [1996] 2 VR 235 and Collins Hill Group Pty Ltd v Trollope Silverwood and Beck Pty Ltd [2002] VSCA 205 (‘Collins Hill Group’)]. The only qualification to this general principle is that postcontractual conduct might be an appropriate means in a particular case of drawing inferences in the conventional way as to relevant circumstances existing before or at the time of the making of the contract [The existence of this qualification was suggested by Ormiston JA in Collins Hill Group at [44]]. Additionally Ormiston JA, in Collins Hill Group, indicated that the position in Australia may now conform with the position in Victoria, against the admissibility of evidence of subsequent conduct in the process of contractual interpretation (at [44]): What has been said on a number of occasions in this State, and not seriously doubted by intermediate courts of appeal in other States, is that this evidence of later conduct is inadmissible for the purpose of interpreting a contract: see FAI Traders Insurance Co Ltd v Savoy Plaza

Pty Ltd and Ryan v Textile Clothing and Footwear Union of Australia [[1996] 2 VR 235]. This view seems largely now to be accepted by the Court of Appeal in New South Wales: see Brambles Holdings Ltd v Bathurst City Council [(2001) 53 NSWLR 153 at 164 para [26]) and C H Magill v National Australia Bank Ltd. [[2001] NSWCA 221; (2001) Aust Contract R ¶90-131: at para [50] – para [53]]. The only qualification [If so it can be described. It could only affect interpretation if the matrix is properly in issue.] I would place on this is that the rule is intended to apply to conduct which [page 174] might otherwise have reflected an assumption or acceptance of a particular meaning of a term or terms of a contract; I would not see it necessarily as preventing the use of post-contractual conduct as a means of drawing inferences in the conventional way as to relevant circumstances existing before or at the time of the making of the contract [Cf the 2nd and 3rd propositions in para 13-100 of Carter on Contract (2002) (looseleaf, 2002). A similar view was expressed by Campbell JA in Franklins Pty Ltd v Metcash Pty Ltd (2009) 76 NSWLR 603 at 681–2: The objective theory of contract is now clearly established in Australian contract law: Taylor v Johnson (1983) 151 CLR 422; 45 ALR 265; Pacific Carriers at [22]; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; 211 ALR 101; [2004] HCA 55 at [34] (Equuscorp); Toll at [40]–[44]. I would accept that, at the level of whether as a matter of ordinary human experience one piece of evidence can make more probable the existence or non-existence of some disputed fact in issue, subsequent conduct can sometimes provide a legitimate insight into what were the mutual beliefs of the parties, or the belief of one of the parties, about the scope of the obligations they were undertaking at the earlier time of contracting — it is a particular example of retrospectant evidence. However, under the objective

theory of contract such beliefs of the parties at the time of contracting are of no significance to what the terms are of the contract that has been entered. Rather, the terms of the contract depend upon what a reasonable observer would understand from what was said or written at the time of contracting, in the context in which it was said or written. It necessarily follows that subsequent conduct of the parties cannot enter into that exercise. His Honour then went on to say that this does not mean that in no circumstance would the subsequent conduct of the parties be admissible (at [324]): It could happen that an event occurring after was made was used as proof of matter that is relevant to construction of the contract even on the objective theory of contract. If, for example, a contracting party admitted, after the contract had been made, the truth of some fact that was a relevant part of the context in which the contract has been made, I see no reason why that admission could not be used as part of the means of proof of that background fact. See also Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570, where the High Court (Gummow, Hayne and Kiefel JJ) referred to ‘the general principle that “it is not legitimate to use as an aid in the construction of [a] contract anything which the parties said or did after it was made”: James Miller & Partners Ltd v Whitworth Street Estates Ltd [1970] AC 583 at 603; [1970] 1 All ER 7976 at 7989’: at 582. Evidence of prior negotiations is admissible to the extent that it goes to establishing objective background facts which were known to both parties and the subject matter of the contract: Codelfa Construction Pty Ltd v State Rail Authority of NSW at 149 CLR 352–3 (per Mason J); and see Spunwill Pty Ltd v Bab Pty Ltd at 36 NSWLR 308 and 310 where the relevant passages from the judgment of Mason J are quoted (set out above). [page 175]

Implication of terms

[6.7] In general the rules in relation to the implication of terms in leases are to be found in the rules applying to the implication of terms in contracts: see BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 282–4; and (1977) 52 ALJR 20 at 26–7; Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 (CA), which may include an implied obligation of good faith in performing obligations and exercising rights, see at 363–9 (Sheller JA, with whom Powell and Beazley JJA agreed); and see Greig and Davis, Law of Contract, pp 538–60; and see [8.1]. There are, nevertheless, particular instances with respect to leases where the general rules either have not by their application produced the implication of a particular term, or type of term, or are subject to an exception or a presumption or rule of law to the contrary (and see [8.1]). For example the general refusal of the courts to imply a term imposing obligations on a landlord to repair (see [10.1]) is probably an instance of the general rules failing, by their own operation, to produce the implied term whereas the refusal of the courts to imply a term that non-residential premises are reasonably fit for the permitted purpose (see [8.1] and [8.6]) is probably an example of the operation of an exception or presumption. Nevertheless, whatever the correct analysis, an express covenant may deal with these issues in any way the parties agree. This warning that general contractual doctrines in relation to the implication of terms may not apply fully to leases is becoming less apposite as the High Court and the House of Lords move to apply contractual doctrines to leases more generally (see, for example, [6.10] in relation to the doctrine of frustration and [16.26] in relation to repudiation); but, in this respect, the distinction between an agreement for lease, as an executory contract to grant a lease, and a formal lease, as an actual grant, should be kept in mind: see [4.1], and also [4.2] and [4.8]. Generally the courts will attempt to give business efficacy to commercial agreements, including leases, where possible: see Deneys v Delafotis (1992) V ConvR ¶54433; Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429; Western Australian Trustees Ltd v Poon (1991) 6 WAR 72 at 80 (CA) (per Malcolm CJ); Perpetual Trustee Co Ltd v Crooks Michell Peacock Stewart Pty Ltd (1992) 5 BPR 97,415 at 11,869 (CA(NSW); Kirby P); Kazas & Associates Pty Ltd v Multiplex (Mountain Street) Pty Ltd (2002) 11 BPR 20,353 at [55]–[68] (SC(NSW), Palmer J); Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd (2007) NSW ConvR

¶56-167 (CA); and Moratic Pty Ltd v Gordon (2007) 13 BPR 24,713; and see, for further examples, other authorities referred to with respect to rent review provisions in leases at [11.9]. Nevertheless there is a difference of fundamental significance which should be kept in mind, which was highlighted by Ipp J (with whom Malcolm CJ and Wallwork J agreed) in City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146 (FC) (at [33]–[42], particularly [34]): The City contended that the mere letting of the premises for a particular purpose did not give rise to an implied term that the premises could lawfully be used for that purpose, and relied on Hill v Harris [1965] 2 QB 601, where Diplock LJ said at 614–615: [page 176] It has been submitted that, where a lease of property is entered into and it is in the contemplation of both parties that the property shall be used for a certain purpose, there is contract or condition on the part of the landlord, implied by law, that the premises are fit for the purpose, that is to say, that they can lawfully be used for the purpose, and that there will be no let or hindrance to their being so used. That is a proposition in support of which no authority has been cited. Devlin J in Edler v Auerbach [1950] 1 KB 359 said at 373: The relevant principle of law was enunciated by Parke B in Hart v Windsor [1843] 12 M & W 68 at 87 and quoted with approval by Scrutton LJ in Bottomley v Bannister [1932] 1 KB 458 at 468 and is as follows: There is no contract, still less a condition, implied by law on the demise of real property only, that it is fit for the purpose for which it is let. Devlin J went on at 374: This principle has often been applied in cases where the premises are physically unfit for the purpose. I think it equally

applicable where premises are, so to speak, legally unfit. It is the business of a tenant, if he does not protect himself by an express warranty, to satisfy himself that the premises are fit for the purpose for which he wants to use them, whether that fitness depends upon the state of their structure, the state of the law, or any other relevant circumstance. [Counsel for the lessee] has pointed out that that statement of the law by Devlin J has not yet received approval from a higher court. I think that the sooner it does the better, and as far as I am concerned I am prepared to approve it here and now. Russell LJ also approved the principle enunciated in Edler v Auerbach [1950] 1 KB 359 at 374. Sellers LJ agreed with both Diplock LJ and Russell LJ. A distinction between commercial documents and conveyancing documents for the purpose of reading a presumed intention into a document was drawn by Wells J in Mestros v Blackwell (1974) 8 SASR 323 at 327, where his Honour said that the approach of reading a presumed intention into a document to give it business efficacy is more properly applied to purely commercial documents and commercial enterprises rather than to conveyancing documents: but compare United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904; [1977] 2 All ER 62 (HL); and note that the South Australian decision was some years before the trend to treat leases as being more akin to contracts became clear (see above). As to the implication of a term with respect to the obligations of guarantors for a renewed lease term, see Verdi La Fontana Pty Ltd v Mabrouk Pty Ltd (1992) 5 BPR 97,381 (CA(NSW)); and see [14.1]. A term will not be implied where it would operate inconsistently with a provision excluding s 144 of the Property Law Act 1958 (Vic) (its exclusion having the effect of conferring an absolute discretion on a landlord whether to consent or not to a proposed assignment of lease): Australian Mutual Provident Society v 400 St Kilda Road [page 177]

Pty Ltd [1991] 2 VR 417 at 425 (FC), applying BP Refinery (Westernport) Pty Ltd v Shire of Hastings; and see [15.6]. A lease, like any other document, should be construed as a whole: see Combara Nominees Pty Ltd v McIlwraith-Davey (1991) 6 WAR 408 at 417 (FC) (per Rowland J), referring to Australian Broadcasting Commission v Australasian Performing Rights Association Ltd (1973) 129 CLR 99 at 109 (per Gibbs J); and see Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd [1991] 2 Qd R 210 where construction of the document as a whole was significant with respect to the meaning of particular covenants. The general rules of construction of contracts and other documents are applicable to leases, subject to the particular comments made here and in other parts of this work. In addition to the texts referred to in [6.1], see also Lewison, The Interpretation of Contracts (6th ed) para 6.01 and following. As to construction of covenants, particularly, see [7.2]; and as to implied covenants, see Chapter 8, below.

Rectification [6.8] The remedy of rectification is available in the case of leases as in the case of other instruments. The party claiming rectification must prove that the instrument does not represent the common intention of the parties; proof of a previously existing contract is not, however, necessary: see, for example, Slee v Warke (1949) 86 CLR 271 at 280–1; Joscelyne v Nissen [1970] 2 QB 86; Johnstone v Commerce Consolidated Pty Ltd [1976] VR 463 (this decision of Crockett J, and the principles applied, was affirmed by the Full Court, [1976] VR 725); and L E Stewart Investments Pty Ltd v F C & M Legge Building Contractors & Developers (2003) 11 BPR 21,053 at [10]–[13] (per Barrett J). The principles to be applied, together with the authorities, were considered by Sheller JA (with whom Mahoney AP and McLelland AJA agreed) in Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 at 338–40: Mason J, [in Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336] with whose judgment Menzies J agreed (at 349), summarised the effect of the evidence by saying that the written

instrument was not executed as the result of a mistaken belief as to what it contained. The purchaser’s representative was mistaken as to its effect but not as to its contents. His Honour quoted from the judgment of Lord Chelmsford LC in Fowler v Fowler (1859) 4 De G & J 250 at 265; 45 ER 97 at 103. The person seeking rectification must establish clearly ‘that the alleged intention to which he desires’ (the instrument) ‘to be made conformable continued concurrently in the minds of all parties down to the time of its execution, and also must be able to shew exactly and precisely the form to which the deed ought to be brought’. Mason J continued (at 349): … On other occasions statements have been made which emphasize that it is for the plaintiff to show that by the writing sought to be rectified the parties intended to record the terms of an antecedent oral bargain and that by common mistake there is a disconformity between the oral bargain and the writing (United [page 178] States of America v Motor Trucks Ltd [1924] AC 196 at 200, per Earl of Birkenhead). The difference in expression is not of importance. It is explained partly by the difference in the character of written instruments sought to be rectified and partly by the more recent desire to emphasize that the remedy is designed to relieve against the mistaken expression of the true agreement of the parties. As Mason J pointed out (at 350) the existence of an antecedent agreement is not essential to the grant of relief by way of rectification. ‘It may be granted in cases in which the instrument sought to be rectified constitutes the only agreement between the parties, but does not reflect their common intention.’ It will be seen that his Honour’s remarks were directed to demonstrate that, although there may have

been an oral, although unenforceable, agreement with which the written instrument did not conform and although at all times up to the conclusion of the auction the parties may have intended that a written contract would be executed to record the terms of the auction sale, it remained for the purchaser to prove that the parties intended by the writing to give effect to the whole of the antecedent agreement and that by common mistake they had failed to do so. His Honour said (at 350–351): It may be asked why should a plaintiff be required to establish more than disconformity between the antecedent agreement and the written instrument. Why should he be called upon to show that the writing was intended to give effect to the whole of the oral contract and that by common mistake the written instrument failed to do so? The answer lies in the circumstance that the court must be satisfied that the instrument does not reflect the true agreement of the parties. It cannot be so satisfied unless the writing was intended to record the earlier agreement and by the mistake of the parties it fails to do so. If the plaintiff fails to establish these elements he does not displace the hypothesis arising from execution of the written instrument, namely, that it is the true agreement of the parties. Mason J said (at 351): Mr Mutton did not intend to give effect to the entire antecedent agreement by the writing. He was content to allow the auctioneer’s statement as to finance to remain apart from the written contract. Furthermore, the appellant and the respondent, knowing through Mr Mutton and Mr Brady respectively that the contract contained a provision requiring payment of cash on completion, executed the contract with that knowledge. Accordingly, the appellant has not shown that in this respect the instrument was intended to record the antecedent oral agreement or that the instrument by common mistake failed to conform to that agreement. The parties assented to a provision

calling for payment of cash on completion which differed from that agreement. They were not mistaken as to the contents of the written instrument. Although Mr Mutton was mistaken in the reason which led him to accept the contract in its written form, the unilateral mistake which he made as to its legal effect was not a mistake of the kind that grounds rectification. In Pukallus v Cameron (at 452), Wilson J observed that so long as there was a continuing common intention of the parties, it may not be necessary to show that the accord found outward expression, notwithstanding the views expressed to the contrary in Joscelyne v Nissen [1970] 2 QB 86 at 98 and Maralinga (at 350). Brennan J (at 457) referred to [page 179] the passage in the judgment of Lord Helmsford in Fowler v Fowler and quoted from Mason J’s judgment in Maralinga (at 349) and the need for the alleged intention to continue concurrently in the minds of the parties down to the time of the execution of the writing. Sheller JA continued, with respect to ‘governing intention’ (at 341): In his book The Principles of Equitable Remedies, 4th ed (1990) Dr Spry QC (at 597–598), dealing with the case where the parties were aware of the precise terms of the relevant part of the document but misapprehended their effect, distinguished between two positions. He said (at 597): … The first position occurs where the concurrent intention, that is, the intention that the document is desired to effectuate, remains the governing intention. In this event it should not matter that the precise terms of the document have been seen by the parties, and rectification, where otherwise appropriate should be ordered. The learned author referred to the judgment of Brightman J and

continued (at 597–598): … The second position arises where the parties, whatever their previous intention may have been, have ceased to retain that intention as their governing intention and have formed instead an intention to be bound by the precise terms of the document in question, regardless of possible discrepancies between its provisions and prior or other intentions on their part. In this event rectification is not appropriate. Maralinga was treated as an example of the second position. However Dr Spry went on to advert to another complicating factor. He said that the different considerations apply whether relevant mistake does not arise through a lack of conformity between a document and the concurrent intention of the parties, but rather arises through an error underlying that intention itself. Where there is no lack of conformity between the document and the concurrent intention, the basis for rectification does not exist. These principles may justify the decision in Frederick E Rose (London) Ltd v William H Pim Junior & Co Ltd [[1953] 2 QB 450]. An error of law or other error may have related only to the expected consequences of an agreement and not to what the parties have actually agreed. In conclusion, Sheller JA stated (at 344): In Bush v National Australia Bank Ltd (1992) 35 NSWLR 390 at 406, Hodgson J said that he thought the preponderance of authority now favours the view that, ‘provided all other requirements of rectification are satisfied, rectification will not be refused merely because the common mistake is as to the legal effect of the words used, rather than as to the actual words used’. His Honour said (at 407): In such cases, it will often be the case that each party will have conflicting intentions as to the document. It may well be the case that each party intends to give effect to the document as it is worded, but also intends to enter into a transaction with a particular legal effect, which is not the true legal effect of the document as worded. The problem is not unlike that in the

case of a mistake as to the identify of a person with whom one is making a contract: one may [page 180] intend to contract with a person with a particular name and description, but also intend to contract with the very person who is present; and in subsequent legal proceedings, a decision may have to be made as to which intention should prevail. So it may also be with this type of rectification, with the additional complication that the intention and mistake must be clearly proved. So one needs to be able to say that, although in a sense the parties intended to be bound by a document which included certain words, nevertheless their intention to achieve a legal effect which was not the true legal effect of those words was somehow predominant over that other intention, and clearly predominant. This accords with Dr Spry’s ‘governing intention’. Summarising, in Prestige Land Developments Pty Ltd v Eagle Hotels Pty Ltd (1996) NSW ConvR ¶55-764 Santow J said (at 55,875): The first requirement is that the party seeking rectification must be able to establish a common intention of the parties, being that which is subjectively foreseen by all parties and intended to be effected by the document and which subsists up to and including the time of execution of the document; Commissioner of Stamp Duties v Carlenka Pty Ltd and Anor (Court of Appeal 28 August 1995, unreported per Mahoney AP at 3). That common intention may be reflected in an antecedent agreement between the parties, though this requirement is no longer necessary if a common intention so subsisting can otherwise be established; Maralinga Pty Ltd v Major Pty Ltd (1973) 128 CLR 336 per Mason J at 350. The second requirement to be satisfied is that the effect of the document sought to be rectified is not only in disconformity with the

antecedent agreement between the parties or with the other expression of their common intention still held at the time of its execution, but also that the document must have been intended by all parties to give effect to ‘the whole of’ that antecedent agreement or other expression of common intention and by common mistake did not; Maralinga Pty Ltd v Major Enterprises Pty Ltd (supra) at 350–1 per Mason J. Thus mistake by only one party as to the legal effect of the document does not suffice to ground rectification if the other party did not share that mistake. In this context ‘effect’ of the document refers to the legal and factual operation of the document or instrument, according to its true construction. Thus it does not include legal or factual consequences of the operation of the instrument of a more remote or collateral kind (such as its liability to stamp duty), per McLelland AJA in Commissioner of Stamp Duties v Carlenka Pty Ltd and Anor. The third requirement, applicable where the document involves a misapprehension of its terms, though purposely entered into, is that it must be clearly proven that the parties have a predominant or governing intention to give effect to their common intention, which prevails over any intention to enter into the document sought to be rectified; Bush v National Australia Bank Ltd (1992) 35 NSWLR 380 at 407 per Hodgson J. And see Winks v W H Heck & Sons Pty Ltd [1986] 1 Qd R 226, particularly the judgment of Thomas J at 237, referred to by Sheller JA in Carlenka at 342– 3; and see Simic v New South Wales Land and Housing Corp (2016) 339 ALR 200; (2016) 91 ALJR 108. Also, in Waipara Pty Ltd v Police Association of Victoria (1997) V ConvR ¶54-557, Hansen J said (at 66,695): [page 181] It ought not be inferred from what I have said that I am of the view that rectification is possible only in circumstances where one or both parties are mistaken as to the actual terms of their contract. There may

well be cases in which rectification is properly ordered where both parties know precisely what words are incorporated into their written agreement, but one or both parties are mistaken as to the meaning or effect of the words so used. The decision of Doyle CJ in Australian Consolidated Investments Ltd v Southern Equities Corporation Ltd (unreported, 1 November 1995, sub-nom Australian Consolidated Investments Ltd v England (1995) 183 LSJS 408) (‘ACIL’) may be such an example. And see, similarly, Classic International Pty Ltd v Lagos (2002) 60 NSWLR 241 at 249–50, [42] (per Palmer J). In order to obtain rectification of a lease it is not enough to show, for example, that both parties, in fact, intended that the defendant should be allowed to reside on the demised premises; there must have been a common intention to insert such a provision in the lease: City and Westminster Properties (1934) Ltd v Mudd [1959] 1 Ch 129 at 143; and see Swainland Builders Ltd v Freehold Properties Ltd [2002] 2 EGLR 71 (CA) at [33] (per Peter Gibson LJ); and KPMG LLP v Network Rail Infrastructure Limited [2007] Bus LR 1336. The lessor and lessee executed an original and counterpart of a lease, the counterpart having deleted from a printed list of lessee’s obligations therein the payment of rates and insurances. By mutual mistake, these items were not deleted from the original. The lessee was entitled as against the lessor to have the lease rectified by deleting the reference to rates and insurance premiums, and his rights were held to be protected against a purchaser by s 42(2)(e) of the Transfer of Land Act 1958 (Vic): Downie v Lockwood [1965] VR 257. There must be clear evidence that this intention of the parties is not reflected in the document sought to be rectified: see Pukallus v Cameron (1982) 180 CLR 447 at 457 per Brennan J; Waipara Pty Ltd v Police Association of Victoria (1997) V ConvR ¶54-557; affd on appeal (1998) V ConvR ¶54-583; and Misner v Australian Capital Territory (2000) ACTR 1. Also essential is a common mistake ‘or a unilateral mistake made by the party claiming rectification which, at the time the contract was entered, was known to but not corrected by the other party, or where the other party was responsible for the first party’s unilateral mistake’: see Waipara ¶54-557 at 66,693 (per Hansen J), referring to Maralinga; and Australia and New Zealand

Banking Group Ltd v Letore Pty Ltd (SC(Vic), 22 December 1994, unreported (BC9401303)) where Hansen J said (at BC 38): In a case of unilateral mistake, if one party to a transaction knows that the instrument contains a mistake in his favour and that the other party does not and he does nothing to correct it and allows the other party to sign the document, he will be precluded from resisting rectification. In A Roberts and Co Ltd v Leicestershire County Council (1961) Ch 555 at 570 this was described as ‘a species of equitable estoppel’. Cf Royal Bank of Canada v Oram, Rowberry and Hoggard (1978) 1 WWR 564. The present is a clear case of unconscionable dealing. [page 182] … It was submitted that the courts have been reluctant to rectify written instruments and have imposed a high standard of proof of the terms of any alleged agreement, because of the problem which a case such as the present highlights, namely, trying to ascertain from versions of the facts, what was in fact agreed or intended to occur. The relevant standard of proof is, of course, on the balance of probabilities. I bear in mind the warnings as to the degree of satisfaction required, in determining this case. See Commerce Consolidated at 730; Pukallus v Cameron (1982) 56 ALJR 907 at 909 and 911; The Bacchus Marsh Concentrated Milk Co Ltd (In Liquidation) v Joseph Nathan and Co Ltd (1919) 26 CLR 410 at 433. In A Roberts & Co Ltd v Leicestershire County Council [1961] Ch 555 at 570, Pennycuick J adopted the principle as stated in Snell’s Principles of Equity, 25th ed (1960), p 569, as follows: By what appears to be a species of equitable estoppel, if one party to a transaction knows that the instrument contains a mistake in his favour but does nothing to correct it, he (and those claiming under him) will be precluded from resisting rectification on the ground that the mistake is unilateral and not common.

The principle thus enunciated was referred to with approval by the Court of Appeal in Riverlate Properties Ltd v Paul [1975] Ch 133 at 140; [1974] 2 All ER 656 at 660, but with the gloss that the ‘[k]nowledge of the intention and mistake of the other party must be a question of fact to be decided on the evidence … such as to involve the lessee in a degree of sharp practice’. In Thomas Bates & Son Ltd v Wyndham’s (Lingerie) Ltd [1981] 1 WLR 505 the Court of Appeal reviewed the Roberts and Riverlate cases, with approval, and again endorsed the principle, but subject to the comment (at 515) that the reference to ‘sharp practice’ in the Riverlate case was an obiter dictum. Buckley LJ emphasised that the basis of the principle was that the defendant’s conduct ‘must be such as to make it inequitable that he should be allowed to object to the rectification of the document’. In so doing his Lordship strengthened the foundations of the principle in equitable estoppel and avoided the possibility of it being narrowed as some species of fraud. In conclusion, Buckley LJ, with whom other members of the court agreed in substance, said: For this doctrine (that is to say the doctrine of A Roberts v Leicestershire County Council) to apply I think it must be shown: first, that one party, A, erroneously believed that the document sought to be rectified contained a particular term or provision, or possibly did not contain a particular term or provision which, mistakenly, it did contain: second, that the other party, B, was aware of the omission or the inclusion and that it was due to a mistake on the part of A: third, that B has omitted to draw the mistake to the notice of A. And I think there must be a fourth element involved, namely that the mistake must be one calculated to benefit B. If these requirements are satisfied, the court may regard it as inequitable to allow B to resist rectification to give effect to A’s intention on the ground that the mistake was not, at the time of execution of the document, a common mistake. Eveleigh LJ added that he did not think it was necessary to show that the party aware of the mistake would be benefited. He said (at 521): ‘It is enough that the [page 183]

inaccuracy of the instrument as drafted would be detrimental to the other party, and this may not always mean that it is beneficial to the one who knew of the mistake.’ This view is to be preferred as more consistent with the basis of the ‘doctrine’ as an equitable estoppel. It is difficult to see why it would be any the less inequitable for one party to stand by and knowingly, gratuitously, allow the other to act to his or her detriment. In the context of the broad view Buckley LJ took in other respects it seems surprising that he would have intended to restrict the principle. Nevertheless, his Lordship’s fourth point is unambiguous and approved by the third member of the court, Brightman LJ (as he then was). See also Slee v Warke (1949) 86 CLR 271; Johnstone v Commerce Consolidated Pty Ltd [1976] VR 463; Majestic Homes Pty Ltd v Wise [1978] Qd R 225; Taylor v Johnson (1983) 151 CLR 422; Easyfind (NSW) Pty Ltd v Paterson (1987) 11 NSWLR 98; State Rail Authority of NSW v Ferreri (1990) NSW ConvR ¶55-512 (per Young J); Thermoplastic Foam Industries Pty Ltd v Imthouse Pty Ltd (1990) 5 BPR 97,334; and Wu v Glaros (1991) 55 SASR 408 (FC). The basis of relief by way of rectification for unilateral mistake is necessarily different from rectification for mutual mistake (and also from rescission): see Terceiro v First Mitmac Pty Ltd (1997) 8 BPR 15,733; and Fox Entertainment Precinct Pty Ltd v Centennial Park and Moore Park Trust (2004) 11 BPR 21,629. In Terceiro v First Mitmac Pty Ltd McLelland CJ in Eq said (at 15,739): The principles which govern rectification for unilateral mistake are founded upon the concept of unconscionable conduct in the sense in which that expression is used as a description of a species of equitable fraud. In the context of a claim for rectification for the unilateral mistake of one party, the unconscionable conduct of the other party ‘must be such as to make it inequitable that he should be allowed to object to the rectification of the document’ (per Buckley LJ in Thomas Bates & Son at 515). It is important to note, as was pointed out by Stuart-Smith LJ in Commission for New Towns [v Cooper (Great Britain) [1995] Ch 259 (CA)] (at 278), after referring to the decision of the High Court of Australia in Taylor v Johnson 151 CLR 422, that Taylor ‘was a case of rescission, and the same principles do not ordinarily apply, for the simple reason that in rescission the Court simply undoes the bargain, provided that the parties can be restored to their original

position; in rectification for unilateral mistake the original bargain is undone and a different one imposed’ (and see Meagher, Gummow & Lehane Equity Doctrines & Remedies (3rd ed) at para 2615 where it is said ‘… the fundamental bases of the remedies of rescission and rectification are entirely different. The latter supposes that there was a valid agreement which has been incorrectly documented, the former that in equity there never has been a valid agreement at all’). In other words unconscionable conduct sufficient to found a remedy by way of rescission is not necessarily sufficient to found a remedy by way of rectification. Furthermore, the elements of unconscionable conduct which would justify rectification for unilateral mistake must be proved to the same clear and convincing standard as the elements which would justify rectification for common mistake (cf Whittet v State Bank of NSW [(1991)] 24 NSWLR 146 at 150–4 per Rolfe J). [page 184] And further, in relation to unilateral mistake, see Fox Entertainment Precinct Pty Ltd v Centennial Park and Moore Park Trust (2004) 11 BPR 21,629 at [24] and [25] (per Barrett J), particularly the reference to the position as stated in Taylor v Johnson: [24] In the case of unilateral mistake, where the actuating misapprehension is said to have operated upon one party but not the other, rectification is generally not permissible. There is, however, an exception where the party not under the misapprehension is guilty of fraud, whether actual, constructive or equitable. The relevant principle was stated by Mason ACJ, Murphy and Deane JJ in Taylor v Johnson (1983) 151 CLR 422 at 432–433 as follows: The particular proposition of law which we see as appropriate and adequate for disposing of the present appeal may be narrowly stated. It is that a party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an

order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension … In such a situation it is unfair that the mistaken party should be held to the written contract by the other party whose lack of precise knowledge of the first party’s actual mistake proceeds from wilful ignorance because, knowing or having reason to know that there is some mistake or misapprehension, he engages deliberately in a course of conduct which is designed to inhibit discovery of it. Clear and convincing proof is required of the factual elements necessary to establish a claim for rectification: see Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329; Waipara Pty Ltd v Police Association of Victoria (1997) V ConvR ¶54-557; affd on appeal (1998) V ConvR ¶54-583; Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336; Pukallus v Cameron (1982) 180 CLR 447; 56 ALJR 907; Terceiro v First Mitmac Pty Ltd (1997) 8 BPR 15,733; and L E Stewart Investments Pty Ltd v F C & M Legge Building Contractors & Developers (2003) 11 BPR 21,053 at [10]–[13] (per Barrett J); Fox Entertainment Precinct Pty Ltd v Centennial Park and Moore Park Trust (2004) 11 BPR 21,629; Stormriders Pty Ltd v Copperart Pty Ltd (2005) NSW ConvR ¶56-110; Carrathool Hotel Pty Ltd v Scutti (2006) NSW ConvR ¶56-132; and Aspro’s Pty Ltd v Hayter [2005] ANZ ConvR 425 (SC(NSW), Bergin J). As an equitable remedy the grant of relief by way of rectification is discretionary, in relation to which general equitable principles apply: see Re Butlin’s Settlement Trusts [1976] Ch 251; and Misner v Australian Capital Territory (2000) ACTR 1. Also applicable are the usual priorities rules applicable to legal and equitable interests: see Wu v Glaros (1991) 55 SASR 408 (FC). This case contains a discussion of the application of the equitable priorities rules as between the equity of the tenants under an agreement for lease and that of a purchaser under a contract of sale: see at 55 SASR 414–15,

relying upon Lapin v Abigail (1930) 44 CLR 166 and Taddeo v Catalano (1975) 11 SASR 492. [page 185] In Robinson v Young [2005] NSWSC 777 Smart AJ considered the relative priorities of the interest of a tenant of Torrens title land under an unregistered lease, who claimed rectification on the basis of a unilateral mistake in the omission of a particular document from the lease, and the equitable interest of a purchaser of the freehold under a contract of sale. It was accepted that the tenant’s equity was a personal equity as envisaged in Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) (1965) 113 CLR 265 and, consequently, the question was whether the purchaser had taken subject to this equity, which, in turn raised the question whether the purchaser was a bona fide purchaser for value without actual or constructive notice of this equity: see [2005] NSWSC [52] and following. In considering this question Smart AJ said: [66] The sheet anchor of its submission was the decision of Upjohn J (as he then was) in Smith v Jones 1954 2 All ER 823. … [68] … Although it did not arise for decision, but because it had been fully argued, his Lordship dealt with the second defence that the defendant was a bona fide purchaser for value without notice of the plaintiff’s equity: Upjohn J adopted these statements of principle from Barnhart v Greenshields (1853) 9 Moo PC C 32, 14 ER 204 (citations omitted): With respect to the effect of possession merely, we take the law to be, that if there be a tenant in possession of land, a purchaser is bound by all the equities which the tenant could enforce against the vendor, and that the equity of the tenant extends not only to interests connected with his tenancy, as in Taytlor v Stibbert, but also to interests under collateral agreements, as in Daniels v Davidson, Allen v Anthony, the principle being the same in both classes of cases; namely, that the possession of the

tenant is notice that he has some interest in the land, and that a purchaser having notice of that fact, is bound, according to the ordinary rule, either to inquire what that interest is, or to give effect to it, whatever it may be. And continued: Later in the judgment Mr Pemberton Leigh cited a passage from the judgment in Allen v Anthony where Lord Eldon, LC said: It is so far settled as not to be disputed, that a person purchasing, when there is a tenant in possession, if he neglects to inquire into the title, must take, subject to such rights as the tenant may have. [69] Upjohn J continued at 827: … it would be extending the doctrine of notice and the obligation to make inquiry far too much if the doctrine was extended to cover an equity of rectification. [70] Upjohn J explained that the purchaser was bound by the rights of the tenant in occupation and must look at and is bound by the tenancy agreement. [71] Upjohn J stated (at 827): … a purchaser is not only entitled but bound to assume, when he is looking at the agreement under which the tenant holds, that the agreement correctly states [page 186] the relationship between the tenant and the landlord and he is not bound to ask or make inquiry whether the tenant has any rights which would entitle him to have the agreement rectified. [72] In Smith Upjohn J was not dealing with a case where extrinsic evidence was admissible to resolve an ambiguity nor with a case where

the written agreement specifically referred to another document (Annex C) and to additional leased property. On its face the 2002 lease suggested that there was a document missing. Mr Young contended that even if the verbatim equivalent of Annex C was not incorporated in the 2002 lease nevertheless the references in it pointed to a document which should have been included and should have formed part of the 2002 lease and, at the very least, required inquiries to be made to ascertain the true position. In spite of the distinctions that could be drawn with the situation in Smith v Jones, Smart AJ found that in the particular circumstances of Robinson the fact that the lease was incomplete on its face should have prompted enquiry by the purchaser, which would almost certainly have led to the position of the tenant being disclosed: see [2005] NSWSC 777 at [82]. As this case and the references to Smith v Jones indicate, it does not necessarily follow that an equity to rectify based on extrinsic evidence and circumstances will necessarily be discoverable (at least within the bounds of the doctrine of constructive notice and the expectations that apply to the conduct of parties with respect to enquiries that should be made) by a person seeking to take what would be an inconsistent interest — in which case the equity may be defeated by that person as a bona fide purchaser for value without notice of the equity; but cf Ong v Luong (1991) 9 BPR 16,759 where McClelland J reached a different result on the application of ss 42 and 43 of the New South Wales Real Property Act 1900 in the circumstances of that case. A different view of the effect of Smith v Jones was taken by Smith J in Downie v Lockwood [1965] VR 257, in the context of s 42(2)(e) of the Victorian Transfer of Land Act 1958 which provides, as an exception to statutory indefeasiblity, the ‘interest … of a tenant in possession of the land’: see at 259–60. The priority dispute in this case was between the rights of a party in possession under a tenancy agreement and the registered proprietors of the freehold. In this context, Smith J said (at 259): Two views are possible as to what the plaintiff’s rights were immediately before the defendants contracted to buy the land. One is that there were two rights to which he was entitled, namely: (a) an equitable leasehold interest in the land, having among its

incidents an obligation to pay rates and premiums and a power of re-entry for non-payment thereof, and (b) a separate and distinct equity to have the agreement rectified by striking out the references therein to rates and premiums. The other view is that what he was entitled to was an equitable leasehold interest in the land, not subject to any such obligation or power of re-entry as I have just referred to. How matters would stand upon the first of these two views it is unnecessary for me to consider, for, in my opinion, the second of them is the true view. The plaintiff’s [page 187] equitable interest in the land had its existence by reason of the fact that the plaintiff was entitled, as against Tovell’s executrix, to specific performance of the contract made between the plaintiff and Tovell: Lysaght v Edwards (1876) 2 Ch D 499; Coatsworth v Johnson (1885) 55 LJQB 220. The incidents of that interest were determined by the form in which specific performance would have been enforced: Walsh v Lonsdale (1882) 21 Ch D 9. And the cases of Craddock Bros Ltd v Hunt, [1923] 2 Ch 136; [1923] All ER Rep 394, and United States v Motor Trucks Ltd, [1924] AC 196, have made it clear that immediately before the defendants contracted to buy the land the plaintiff was entitled to specific performance in the form of a decree or order requiring Tovell’s executrix to sign and deliver to the plaintiff a registrable lease of the land upon terms imposing no obligation on him to pay rates or premiums and giving no power of re-entry for non-payment thereof. In Wu v Glaros (1991) 55 SASR 408 at 414–15 Olsson J (with whom Matheson and Duggan JJ agreed) treated the competing ‘equities’ arising from an agreement to lease and a contract of sale as both being ‘equitable interests’ of the same status and so applied the ‘first in time rule’; referring to Phillips v Phillips (1861) 4 DeG F & J 208; 45 ER 1164; and Lapin v Abigail. This is consistent with Downie v Lockwood, but not Robinson v Young where the equity

to rectify was treated as a ‘mere equity’ and so liable to be defeated by the bona fide purchaser for value without notice of an equitable interest. The decision of the High Court in Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) would seem to indicate that the approach in Robinson v Young is to be preferred in general terms; but even applying this approach it would not follow that a different result would have been obtained in Downie v Lockwood having regard to the provisions of the Victorian Torrens legislation; and see Ong v Luong. As a chose in action a right of rectification is assignable provided, as with assignments of equitable property, the intention to make an immediate disposition is clearly expressed. Thus in Misner Crispin J said (at (2000) 146 ACTR 9 and 10): [27] … It is clear that a right to rectification is a chose in action capable of assignment: see Dickinson v Burrell (1866) LR 1 Eq 337; 35 LJ Ch 371; and Majestic Homes Pty Ltd v Wise [1978] Qd R 225 per Stable SPJ at 232. Furthermore, all that is required to assign equitable property is a ‘clear expression of an intention to make an immediate disposition’: Norman v FCT (1963) 109 CLR 9 per Windeyer J at 30. See also William Brandt’s Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454 per Lord Macnaghten at 462. It is unclear whether rectification is possible in the case of an assignment of a contractual document (and the contract which it embodies or evidences) which does not contain any reference to an assignment of the right of rectification (see Napier v Williams [1911] 1 Ch 361) though I am inclined to agree with the learned authors of The Laws of Australia that it is probably a matter of construing the subject matter of a particular assignment: see ‘Remedies’, at 7.9. But absent an express assignment, the implication of a term assigning a right of rectification depends on the application of the usual rules in relation to the implication of terms: see Misner at (2000) 146 ACTR 10 and 11. Crispin J, in that case, rejected the argument that the right of rectification passed as a result of registration of a transfer of [page 188]

the lease under the Australian Capital Territory Torrens legislation. His Honour said (at 10): [25] It is clear that what passed to a transferee by virtue of s 77 was the estate or interest of the transferor ‘as set forth in the transfer’ and the rights, powers and privileges belonging or appertaining to that estate or interest. A right to seek rectification is not, in my view, a right which might fairly be described as belonging or appertaining to the leasehold interest so set forth but rather a right in personam to obtain redress in relation to the lease or agreement to lease. [26] It is true that in English Scottish and Australian Bank Ltd v Phillips (1937) 57 CLR 302 at 322 Dixon, Evatt and McTiernan JJ said of a comparable South Australian provision that: … the plan of the legislation is to enable the proprietor to transfer by registration not only the interest in the land, but all the accompanying personal obligations normally incident thereto. However, even if one were to assume that the plan of the legislation extended, conversely, to enabling the transfer of all accompanying personal rights ‘normally incident thereto’ it would be difficult to see how a right to seek rectification could fall within the relevant provision. Whilst Mr Arthur would, no doubt, contend that it was an ‘accompanying’ personal right, it could not be said to be ‘normally incident’ to the estate or an interest as set out in the relevant instrument. In the earlier case of Measures v McFadyen (1910) 11 CLR 723 at 731, Griffith CJ construed the terms of s 52 of the Real Property Act 1900 (NSW), which is a comparable provision to s 78 of the Real Property Ordinance 1925 (ACT) as reflecting an intention to transfer the estate or interest of the transferor in the land with all rights incidental to present and future possession. His Honour observed that he did not think that it was ‘intended to transfer also mere choses in action in respect of past and completed breaches of covenant’. I am not satisfied that the right to rectification can be regarded as falling within these principles and, accordingly, I am unable to be satisfied that Ms

Misner’s right to seek rectification was assigned to the plaintiff by operation of either of these sections. Nevertheless, it is not always necessary to resort to rectification. The courts will go some distance in correcting obvious errors and slips. In Ex parte Whelan [1986] 1 Qd R 500 Thomas J (with whom other members of the Full Court agreed) reviewed the authorities on how far this was possible (at 502– 3): The present case is not one which requires the evidence tests and procedures of rectification to be pursued, as the meaning of the lease is already sufficiently clear. It is sometimes overlooked that ‘words may generally be supplied, omitted or corrected in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency’ (Fitzgerald v Masters (1956) 95 CLR 420, 426–7). The Court there inferred that the word ‘inconsistent’ must be read as if it were the word ‘consistent’. This salutary exercise is sometimes referred to as the correction of an absurdity or error. An example of application of the principle by this Court may be found in Kavir Pty Ltd v Dwyer [1973] Qd R 192, 198 where certain figures were corrected and the agreement was read as if a particular figure had been deleted. A similar exercise was performed in Re United Pacific Transport Pty Ltd [1968] Qd R 517, 523, in which W B Campbell J (as he then was) made the following observations: [page 189] An instrument is to be construed according to the intention of the parties appearing from the whole of its contents and to that end corrections may be made which a perusal of the document shows to be necessary: and — In my opinion the word ‘mortgagee’ in the latter part of cl 2 of the deed should be read as ‘mortgagor’ otherwise that latter part of the clause is meaningless and clearly contrary to the

intention of the parties as it appears from the whole of the contents of the debenture charge. I do not consider it necessary that there should be an order for rectification of the deed in a suit brought for that purpose before I should give effect to the intention of the parties. It is simply a matter of the interpretation of the document. In the present case all the necessary criteria are present, and it is apparent that words of linkage have been omitted. I do not think that any court since the time of Council of the Upper Hunter County District v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 would have any great difficulty in concluding that the parties to this commercial lease did have a meaning and that that meaning is readily ascertainable. The Privy Council recently applied similar reasoning in Watson v Phipps (No 16 of 1985, October 21, 1985) which involved construction of a clause which literally gave a lessee an ‘utterly meaningless’ right to make an offer to purchase the demised land for a specified consideration. Of course anyone in the world could make such an offer without the need for a clause to confer such a right. Their Lordships held that the clause ‘can be read without giving rise to an absurdity if it is construed as creating a right to purchase, and not as creating a meaningless power to make an offer to purchase’. Accordingly the lessee succeeded on construction of the clause, making relief by way of rectification unnecessary. And see Spunwill Pty Ltd v Bab Pty Ltd (1994) 36 NSWLR 290 at 299–300; and Westpac Banking Corporation v Tanzone Pty Ltd (2000) 9 BPR 17,521 (CA). But see Miwa Pty Ltd v Siantan Properties Pty Ltd (2011) 15 BPR 29,545, where Basten JA observed that ‘courts have no mandate to rewrite agreements, so as to depart from the language used by the parties, merely to give a provision an operation which, as it appears to the court, might make more commercial sense’: at [18] (emphasis in the original text) Generally, reference should be made to Greig and Davis, Law of Contract, pp 928–38; Seddon, Bigwood and Ellinghaus, Cheshire and Fifoot’s Law of Contract, [12.30]–[12.45]; and also Heydon, Leeming and Turner, Equity

Doctrines and Remedies, 5th ed, [27-005]–[27-160]; and Spry, Equitable Remedies, 9th ed, p 630 and following.

Fraud, illegality and mistake [6.9] The question whether a tenancy agreement was rendered void or illegal by reason of the fact that the premises in respect of which it was made were not registered as required by a by-law and were incapable of registration was considered in Ford v Newton [1949] St R Qd 119. The plaintiff sued for rent under a lease by which he [page 190] had let premises to the defendant knowing that the defendant intended to use them for a dancing studio and for letting for private functions. The premises did not comply with the requirements of an ordinance under the Local Government Act with respect to construction of exits and staircases. The trial judge found that the plaintiff knew that in this regard the defendant’s use of the premises would be unlawful. On appeal it was held that the trial judge was entitled so to find and that in those circumstances the lease was not enforceable by the plaintiff: T P Rick Investments Pty Ltd v Calderon [1964] NSWR 709; (1964) 38 ALJR 43n. In Holidaywise Koala Pty Ltd v Queenslodge Pty Ltd [1977] VR 164, Gillard J recognised the distinction between laws which have the effect of prohibiting the use of premises on the one hand and legislation which may prohibit the letting of the premises on the other hand. In the former case, where a particular use is prohibited, a letting which will involve a use which is prohibited may not be void. In that case, his Honour considered, at 170–6, the relevant authorities dealing with the effect of illegality on the validity of the lease. Failure to provide a proper rent book as required by statute was held not to disentitle the landlord to rent in Shaw v Groom [1970] 2 QB 504; 1 All ER 702. Like other contracts, a lease may be avoided for fraud; moreover, if a lease and some other agreement are interdependent upon one another, fraud

which taints the other agreement will taint the lease also: Campbell v Morris (1952) 69 WN (NSW) 40. In Sowler v Potter [1940] 1 KB 271; [1939] 4 All ER 478, a case which has been discussed frequently, the defendant had on 12 May been convicted under the name of Ann Robinson of permitting disorderly conduct in a cafe conducted by her. In June she entered into negotiations with the plaintiff’s agent for the grant of a lease to her of certain premises to be used as a restaurant and tea-room. During these negotiations she concealed her identity under the alias of Ann Potter, under which name she subsequently obtained the lease. The plaintiff’s agent knew that a woman named Ann Robinson had been convicted of keeping a disorderly cafe, but did not associate that name with the defendant. Tucker J took the view that the lease was void ab initio, on the ground that there was a mistake on the part of the plaintiff as to the identity of the proposed lessee. This decision has been subjected to a good deal of learned criticism, the suggestion being that there was only one entity (the woman known both as Ann Potter and as Ann Robinson), so that the lease was not void on the ground of mistake, but merely voidable for fraud. A party to an illegal or fraudulent transaction may not be denied relief if the cause of action can be proved without proving the illegality or fraud: Muirs v Morrison [1980] VR 83. In that case the defendant was able to prove a tenancy at will without proving the illegality or fraud. The nature of illegality and its effect was considered by Marks J in Dovastand Pty Ltd v Mardasa Nominees Pty Ltd [1991] 2 VR 285 in the context of the requirements of s 15 of the Retail Tenancies Act 1986 (Vic) which regulated the basis upon which [page 191] outgoings could be apportioned and recovered from tenants. His Honour decided that non-compliance with the statutory provisions did not, once and for all, make the outgoings irrecoverable but, rather, that they were not recoverable until these provisions were complied with. The Act did not provide for any penalty or any other consequence for non-compliance. In

response to the tenant’s arguments that the landlord’s claim was unenforceable, Marks J said (at 288–9): Mr Heerey QC for the tenant submitted that as a result the claim of the landlord is unenforceable. He submitted that this resulted from the proper construction of s 15. He relied on a number of authorities to the effect that a contract might become illegal or void in its performance although it was perfectly legal in its making. He cited Anderson, Ltd v Daniel [1924] 1 KB 138 a decision of the Court of Appeal which was followed in B and B Viennese Fashions v Losane [1952] 1 All ER 909 and cited with approval by Brennan J in Trade Practices Commission v Milreis Pty Ltd (1977) 14 ALR 623, at pp 637–9. Mr Heerey placed particular reliance on the statement of Denning LJ in Marles v Philip Trant and Sons Ltd [1954] 1 QB 29, at pp 36–7, to the effect that a contract which becomes unlawful only in the performance of it is not void ab initio but unenforceable. Denning LJ referred to a passage in the judgment of Atkin LJ in Daniel’s Case. However, it is inappropriate here to debate the matter. I observe merely that Mr Heerey sought to extract from these authorities the doubtful proposition that an illegality arising in the performance of a contract has a different consequence from one which arises in its making, namely that in the latter case a question of unenforceability only arises but no question that the contract or a provision of it has become void. I do not think that this is what the authorities say, although it must be conceded that the language of Denning LJ, out of context, might give that impression. But the authority to which his Lordship referred — Lord Atkin in Daniel’s Case — does not support the proposition of Mr Heerey. In the cases cited the contract in its entirety was held to have become void by the illegality in performance. That result is not contended for here nor a result that the lease provisions for payment of the share have become void. In principle, the consequences of illegality must be the same no matter at what time it arises, that is, the courts will not assist either

party to enforce an illegal contract or provision. The concept of unenforceability is susceptible of different juridical analysis. At times, the courts have said that a void contract is unenforceable, at others they have reserved the word ‘unenforceable’ for contracts which are not illegal but which the law will not enforce, for example, oral contracts for the sale of land. The authorities on which Mr Heerey relied also concerned statutes which, unlike the Act, provided penalties for contravention of the relevant provisions. He also referred to Liverpool Borough Bank v Turner (1860) 2 De GF and J 502 which he contended was not such a case as the statute there did not provide for imposition of a penalty. However, the decision turned entirely on the construction of a differently worded statute and on a conclusion that its effect was to render inoperative a contract which did not conform with its requirements. Here, Mr Heerey contends for the legality of the lease but the temporary downfall only of some of its provisions. [page 192] In my opinion, the questions here are to be answered according to the proper construction of the Act and it is unnecessary to debate such problems as might stem from use of the word ‘unenforceable’ in some of the cases to describe not, as Mr Heerey contended, a consequence of something short of a void contract but a consequence of a contract being void ab initio or having become so in its performance. Marks J continued (at 290): It goes without saying that the Act, as is common ground, does not provide a penalty or that there is to be any other consequence of the non-compliance. In Cutler v Wandsworth Stadium Ltd [1949] AC 398, at p 107, Lord Simonds said: It is, I think, true that it is often a difficult question whether,

where a statutory obligation is placed on A, B … has a right of action against him … The only rule which in all circumstances is valid is that the answer must depend on a consideration of the whole Act and the circumstances, including the preexisting law, in which it was enacted. But that there are indications which point with more or less force to the one answer or the other is clear from authorities which, even where they do not bind, will have great weight with the House. For instance, if a statutory duty is prescribed but no remedy by way of penalty or otherwise for its breach imposed, it can be assumed that a right of civil action access to the person with is damnified by the breach. For, if it were not so, the statute would be but a pious aspiration. In Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) CLR 410 members of the High Court emphasised that questions of the present kind turn on application of the ordinary principles that Govern construction of statutes: see Gibbs ACJ, at p 413 and Mason J, as he then was, at p 424 ff. Where the illegality is brought about by an act or omission of the party seeking to have the lease declared void, the legislature must have evinced a clear intention in the wording of the statute that such illegality is to have that effect. In Gnych v Polish Club Ltd (2015) 255 CLR 414, the respondent held premises that were licensed for the sale or supply of liquor for consumption on premises under the Liquor Act 2007 (NSW). The respondent leased part of this licensed premises to the appellants without approval of the Independent Liquor and Gaming Authority, in contravention of s 92(1)(d) of the Liquor Act, which provided that a licensee must not lease or sublease any other part of the licenced premises except with the approval of the Independent Liquor and Gaming Authority. The New South Wales Court of Appeal held that the policy of the Liquor Act meant that a lease that contravened s 92(1)(d) was unenforceable by the courts. In allowing the appeal, the High Court (French CJ, Kiefel, Keane and Nettle JJ) said: [43] Section 92(1)(d) is concerned with the act of the licensee; it proscribes the grant by the licensee rather than that which is granted. It

does not, in terms, proscribe the performance by the parties of their obligations under the relationship created by the grant. [44] The club, in pressing for a more expansive view of the scope of the proscription in s 92(1)(d), in which the rights of the parties to the lease are sterilised, did not shrink from the unattractive result that, on this view, contractual arrangements freely entered [page 193] into by a licensee would be automatically sterilised, at the licensee’s instigation, but the licensee’s reliance on its own breach of the statute to the detriment of the lessee. [45] As a matter of a legislative construction, the likelihood of adverse consequences for the “innocent party” to a bargain has been recognised as a consideration which tends against the attribution of an intention to avoid the bargain to the legislature; Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1 at [46]. That consideration is consistent with the general disinclination on the of the courts to allow a party to a contract to take advantage of its own wrongdoing: New Zealand Shipping Co v Societe des Ateliers et Chantiers de Franc [1919] AC 1 at 8 and 9; Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 AC 180 at 188–9; Alghussein Establishment v Eton College [1988] 1 WLR 587 at 595; [1991] 1 All ER 267 at 274. There may be cases where the legislation which creates the illegality is sufficiently clear as to overcome that disinclination; but it is hardly surprising that the courts are not astute to ascribe such an intention to the legislature where it is not made manifest by the statutory language: Orr v Ford (1989) 167 CLR 316 at 323, 326–7 and 333–4; 84 ALR 146 at 147, 149–50 and 154–5. And in the present circumstances, this unattractive aspect of the club’s argument is compounded by the circumstances that, as its counsel acknowledged, the club was obliged to take steps to seek the approval of the authority for the grant of the lease and did not do so; Mackay v Dick (1881) 6 App Cas 251 at 263; Secured Income Real Estate

(Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 605-6; 26 ALR 567 at 575-6; Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; 88 ALJR 814; 312 ALR 356; [2014] HCA 32 at [25]. See also Croft, Hay and Virgona, Retail Leases Victoria, [210,005] and [210,025].

Frustration [6.10] In National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675 the House of Lords had the opportunity to consider whether the doctrine of frustration applied to leases. The facts raised the issue squarely. The appellants leased a commercial warehouse for a period of 10 years at an annual rent, reviewable after five years. The landlord’s covenants included an express covenant for quiet enjoyment. The lease also contained special provisions under which the obligation to pay rent was suspended and the lease terminable at the option of the landlord in the event of destruction by fire. There were also provisions for re-entry by the landlord for breach of covenant, or on six months’ notice if required for the purposes of British Railways (with whom the respondents were associated). Unfortunately for the appellant lessee a Victorian period warehouse which stood beside the only access to the leased warehouse became both dangerous and derelict and for safety reasons the City Council closed this access, apparently to both vehicles and pedestrians, pending demolition of the Victorian warehouse. The leased warehouse was thereby rendered totally useless as a commercial warehouse, the one use for which it was fitted and the sole purpose for which, under the terms of the lease, it could be used. The lessee’s problems did not end there, as the Victorian period warehouse [page 194] had become a ‘listed building’ under national heritage conservation legislation with the result that it could not be demolished without permission from the

Secretary of State for the Environment. Local objections meant that consent could not be granted without a public local inquiry. Even assuming an ultimately favourable result, the process was likely to last in excess of a year. Shortly after the street was closed the lessee stopped paying rent. It defended the landlord’s claim solely on the basis that the lease had become frustrated and was at an end. The question remained open as although the Court of Appeal had decreed that the doctrine of frustration was not available to determine a lease in Leighton’s Investment Trust Ltd v Cricklewood Property and Investment Trust Ltd [1943] AC 221 the appeal to the House of Lords produced evenly divided opinion on the issue, and a clear statement of the arguments for and against the application of the doctrine to leases. Lord Wilberforce considered these arguments in National Carriers and was persuaded that the doctrine should apply to leases, a view that was shared by the majority on the basis of substantially the same reasoning ([1981] AC 675 at 693–7): 1.

2.

The doctrine of frustration of contracts made its appearance in English law in answer to the proposition, which since Paradine v Jane (1647) Aleyn 26, [1558–1774] All ER Rep 172 had held the field, that an obligation expressed in absolute and unqualified terms, such as an obligation to pay rent, had to be performed and could not be excused by supervening circumstances. Since Taylor v Caldwell (1863) 3 B & S 826, [1861–73] All ER Rep 24 it has been applied generally over the whole field of contract. Various theories have been expressed as to its justification in law: as a device by which the rules as to absolute contracts are reconciled with a special exception which justice demands, as an implied term, as a matter of construction of the contract, as related to removal of the foundation of the contract, as a total failure of consideration. It is not necessary to attempt selection of any one of these as the true basis; my own view would be that they shade into one another and that a choice between them is a choice of what is most appropriate to the particular contract under consideration. One could see, in relation to the present contract, that it could provisionally be said to be appropriate to refer to an implied term, in view of the grant of the right of way,

3.

or to removal of the foundation of the contract, viz use as a warehouse. In any event, the doctrine can now be stated generally as part of the law of contract; as all judicially evolved doctrines it is, and ought to be, flexible and capable of new applications. In view of this generality, the onus, in my opinion, lies on those who assert that the doctrine can never apply to leases. They have at once to face the argument that it has been held to apply to demise charters of ships (and presumably by analogy could apply to hirings of other chattels) and to licences for use (see Krell v Henry [1903] 2 KB 740; [1900–3] All ER Rep 20 and other Coronation cases). So why not to leases of land? To place leases of land beyond a firm line of exclusion seems to involve anomalies, to invite fine distinctions, or at least to produce perplexities. [page 195]

4.

How, for example, is one to deal with agreements for leases? Refusal ever to apply the doctrine to leases of land must be based on some firm legal principle which cannot be departed from (compare art 62 of the Vienna Convention on the Law of Treaties (1969) (Cmnd 4818) which excludes boundary disputes from the analogous doctrine in international law). Two arguments only by way of principle have been suggested. The first is that a lease is more than a contract: it conveys an estate in land. This must be linked to the fact that the English law of frustration, unlike its continental counterparts, requires, when it applies, not merely adjustment of the contract, but its termination. But this argument, by itself, is incomplete as a justification for denying that frustration is possible. The argument must continue by a proposition that an estate in land once granted cannot be divested, which, as Viscount Simon LC pointed out, begs the whole question.

It was pointed out, however, by Atkin LJ in Matthey v Curling [1922] 2 AC 180 at 199–200, in a passage later approved by Viscount Simon LC, that as a lease can be determined, according to its terms, on the happening of certain specified events, there is nothing illogical in implying a term that it should be determined on the happening of other events, namely, those which in an ordinary contract work a frustration. It has indeed been held, with reference to an agreement for a lease, that this can be put an end to through implication of a term (see Rom Securities Ltd v Rogers (Holdings) Ltd (1967) 205 Estates Gazette 427 per Goff J). So why, in the present case, for example, should an actual lease not be determinable by implication of a term? If so, it could hardly be suggested that a lease was not capable of frustration even though the theory of frustration had shifted to another basis. In the second place, if the argument is to have any reality, it must be possible to say that frustration of leases cannot occur because in any event the tenant will have that which he or she bargained for, namely, the leasehold estate. Certainly this may be so in many cases, let us say most cases. Examples are London and Northern Estates Co v Schlesinger [1916] 1 KB 20, [1914–15] All ER Rep 593, where what was frustrated (viz the right of personal occupation) was not at the root of the contract, and requisitioning cases, eg Whitehall Court Ltd v Ettlinger [1920] 1 KB 680, [1918– 19] All ER Rep 229, where again the tenant was left with something he could use. But there may also be cases where this is not so. A person may desire possession and use of land or buildings for, and only for, some purpose in view and mutually contemplated. Why is it an answer, when he or she claims that this purpose is ‘frustrated’ to say that he or she has an estate if that estate is unusable and unsaleable? In such a case the lease, or the conferring of an estate, is a subsidiary means to an end, not an aim or end of itself. This possible situation is figured, in fact, by Viscount Simon LC in the Cricklewood case. The second argument of principle is that on a lease the risk passes to the lessee, as on a sale it passes to the purchaser (see per Lord

Goddard in the Cricklewood case). But the two situations are not parallel. Whether the risk, or any risk, passes to the lessee depends on the terms of the lease; it is not uncommon, indeed, for some risks (of fire or destruction) to be specifically allocated. So in the case of unspecified risks, [page 196]

5.

which may be thought to have been mutually contemplated, or capable of being contemplated by reasonable people, why should not the court decide on whom the risks are to lie? And if it can do this and find that a particular risk falls on the lessor, the consequence may follow that on the risk eventuating the lessee is released from his or her obligation. To provide examples, as of a 999-year year lease during which a frustrating event occurs, or of those in decided cases (see above), to show that in such cases frustration will not occur is insufficient as argument. These examples may be correct; they may cover most, at least most normal, cases. But the proposition is that there can be no case outside them and that I am unable to accept. I find the experience in the United States of America instructive. It is clear that in the common law jurisdictions of that country, the doctrine of frustration has developed and is still developing. It has been applied, inter alia, in connection with Prohibition and leases of liquor saloons, to leases. Yet neither of the well-known commentators, Williston or Corbin, sees any doctrinal objection to this. I quote one passage from Corbin on Contracts, 1951, vol 6, para 1356): In modern cases, there has been a tendency to treat a lease as a contract instead of a conveyance, although in fact it is both at once. The older allocation of risks does not now always seem just. Many short-term leases have been made, in which the purpose of the lessee was to conduct a liquor

saloon, a purpose known to the lessor and one which gave to the premises a large part of its rental value. There followed the enactment of a … prohibitory law preventing the use of the premises for the expected purpose. The prohibition law does not make it impossible or illegal for the lessee to keep his promise to pay the rent … but it frustrates his purpose of using the premises for a liquor salon in the reasonable hope of pecuniary profit. If the terms of the lease are such that the lessee is restricted to this one use, it has been held in a considerable number of cases that his duty to pay rent is discharged. Williston is to a similar effect, where it is pointed out that termination of a lease by frustration is more difficult to establish than termination of a mere contract (Contracts, 3rd ed, 1978, para 1955). There is a similar indication in Canada. In Highway Properties Ltd v Kelly, Douglas & Co Ltd (1971) 17 DLR (3d) 710 the Supreme Court had to consider the extent to which the contractual doctrine of wrongful repudiation could be applied to a lease, the argument being that the landlord was limited to remedies given by the law of property. In an instructive judgment Laskin J said (at 721): It is no longer sensible to pretend that a commercial lease, such as the one before this Court, is simply a conveyance and not also a contract. It is equally untenable to persist in denying resort to the full armoury of remedies ordinarily available to redress repudiation of covenants, merely because the covenants may be associated with an estate in land. So, here is a route opened by common law jurisdictions, by which the result of frustration of leases may be attained. This may be wide, or narrow, or indeed very

[page 197]

6.

narrow, that we need not decide in advance. But it would be wrong to erect a total barrier inscribed ‘You shall not pass’. I can deal briefly with the authorities: they are one way (against application of the doctrine), they are partial. They decide that particular sets of facts do not amount to frustrating events. A judgment often quoted is that of Lush J in Schlesinger’s case [1916] 1 KB 20, [1914–15] All ER Rep 593 where a lessee was unable to occupy the rented premises because he was an alien enemy. Lush J said ([1916] 1 KB 20 at 24: cf [1914–15] All ER Rep 593 at 595): As the contract could be performed without his personal residence, the fact that his personal residence was prohibited by the Order did not make the performance of the contract impossible. But there is, I think, a further answer to the contention. It is not correct to speak of this tenancy agreement as a contract and nothing more. A term of years was created by it and vested in the appellant, and I can see no reason for saying that because this Order disqualified him from personally residing in the flat it affected the chattel interest which was vested in him by virtue of the agreement. There is nothing to disagree with here, the argument may indeed be valid in many or most cases of leases. It is not expressed as one which must apply to all. The reasoning of this House in Matthey v Curling [1922] 2 AC 180, [1922] All ER Rep 1 is not ‘clear’ or any authority that the doctrine of frustration does not apply to a lease (see per Lord Wright in the Cricklewood case [1945] AC 221 at 230; 1 All ER 252 at 256). It was not until the Cricklewood case that the argument was put on principle and fully explored. The governing decision (of the Court of Appeal) was summary, unargued and based on previous cases which will not bear the weight of a

generalisation. I think that the movement of the law of contract is away from a rigid theory of autonomy towards the discovery, or I do not hesitate to say imposition, by the courts of just solutions, which can be ascribed to reasonable men in the position of the parties. It is said that to admit the possibility of frustration of leases will lead to increased litigation. Be it so, if that is the route to justice. But, even if the principle is admitted, hopeless claims can always be stopped at an early stage, if the facts manifestly cannot support a case of frustration. The present may be an example. In my opinion, therefore, though such cases be rare, the doctrine of frustration is capable of application to leases of land. It must be so applied with proper regard to the fact that a lease, ie a grant of a legal estate, is involved. The court must consider whether any term is to be implied which would determine the lease in the event which has happened and/or ascertain the foundation of the agreement and decide whether this still exists in the light of the terms of the lease, the surrounding circumstances and any special rules which apply to leases or to the particular lease in question. If the ‘frustrating event’ occurs during the currency of the lease it will be appropriate to consider the Law Reform (Frustrated Contracts) Act 1943. On the facts of the case it was held that, although the appellant’s business would be severely dislocated, the events did not approach the gravity of a frustrating event. This [page 198] serves to emphasise a point made very strongly by their Lordships, that the cases in which a lease will be held to have been frustrated will be rare. It follows that longer term ‘speculations and investments’ are generally less easily frustrated than short-term leases, an extreme example being a 999-year lease: see Lord Hailsham LC at [1981] AC 691.

Consideration was given to the basis and nature of the doctrine, or principle, of frustration in Graves v Graves [2007] EWCA Civ 660; [2008] HLR 10 at [33]–[39] (Thomas LJ, with whom Hughes and Coleridge LJJ agreed). In particular, Thomas LJ commented: [37] It is helpful to refer in a little more detail to the judgment of Vaughan Williams LJ in Krell v Henry [[1903] 2 KB 740], the case arising out of the postponement of the coronation of King Edward VII, at p 749 where he said of the principle of frustration: I do not think that the principle of the civil law as introduced into the English law is limited to cases in which the event causing the impossibility of performance is the destruction or non-existence of some thing which is the subject matter of the contract or of some condition or state of things expressly specified as a condition of it. I think that you first have to ascertain, not necessarily from the terms of the contract, but, if required, from necessary inferences, drawn from surrounding circumstances recognised by both contracting parties, what is the substance of the contract, and then to ask the question whether that substantial contract needs for its foundation the assumption of the existence of a particular state of things. If it does, this will limit the operation of the general words, and in such a case, if the contract becomes impossible of performance by reason of the non-existence of the state of things assumed by both contracting parties as the foundation of the contract, there will be no breach of the contract thus limited. Although the National Carriers decision indicates that the English courts will ‘hardly ever’ find that a lease has been frustrated (see Lord Hailsham LC at [1981] AC 692) it does also indicate that these courts are now more concerned with commercial realities and will not be constrained by doctrines of real property that had their reason and relevance in a quite different historic and economic environment. The same view or approach has been adopted in Australia following a number of decisions on the application of the doctrine of repudiation to leases. This is particularly evident in the decision of the High Court in Progressive Mailing House Pty Ltd v Tabali (1985) 157 CLR 17 in

which the National Carriers decision was referred to with approval in relation to the application of the general view or approach that it is no longer sensible to treat a commercial lease as simply a conveyance and not also a contract: see Mason J at 28 (with whom Wilson and Dawson JJ agreed in substance) and Deane J at 52–3, although Brennan J expressly declined to consider the doctrine of frustration, see at 42. Brennan J, in Progressive Mailing House, distinguished discharge of a contract by frustration and discharge by repudiation on the basis that (at 157 CLR 42): An implied term that a lease should determine on the happening of a frustrating event is in the nature of a limitation. An implied term that a lessor should have an election to determine if the lessee should repudiate is in the nature of a condition. [page 199] This is a very convenient way of reconciling the dual nature of leases (see also Wood Factory Pty Ltd v Kiritos Pty Ltd (1985) 2 NSWLR 105 at 123 and Ripka Pty Ltd v Maggiore Bakeries Pty Ltd [1984] VR 629). In resolving whether the doctrines of frustration and repudiation are applicable to leases, the courts have really been asking a wider question: how far is contractual doctrine generally applicable to leases? Lord Roskill, in the National Carriers case (at [1981] AC 713 and 717–18), indicated very strongly that compartmentalisation of the law is likely to lead to anomalous and arbitrary results. The same view is clear in the views of the other members of the House of Lords in the majority, and in the High Court decisions in Shevill v Builders Licensing Board (1982) 149 CLR 620 and the Progressive Mailing case (see, particularly, Deane J at 157 CLR 53 in the latter case). In Maori Trustee v Prentice [1992] 3 NZLR 344 it was accepted that the doctrine of frustration applied to leases but it was held that a substantial rent increase did not constitute a frustrating event. For earlier Australian cases with respect to the application of the doctrine of frustration to leases, see Firth v Halloran (1926) 38 CLR 261; Re Equity Trustees Executors & Agency Co Ltd [1932] VLR 137; Scanlan’s New Neon Ltd v Tooheys

Ltd (1943) 67 CLR 169; Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 302; [1944] ALR 89 (per Williams J); Shiell v Symons [1951] SASR 82; Robertson v Wilson (1958) 75 WN (NSW) 503; Thearle v Kelley (1958) 76 WN (NSW) 48; Frieze v Unger [1960] VR 230 at 241; Lobb v Vasey Housing Auxiliary (War Widows Guild) [1963] VR 239 at 246–7; and see Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 where the formulation of the doctrine of frustration by Viscount Simon in National Carriers was adopted. The weight of this Australian authority is, nevertheless, against the application of the doctrine of frustration to leases. However, given the trend in the authorities of applying contractual doctrines to leases (see, particularly, Progressive Mailing House, and the authorities referred to in [16.26]) it is thought that the High Court will ultimately follow National Carriers and apply the doctrine of frustration to leases. See also Effron, ‘The Contractualisation of the Law of Leasehold: Pitfalls and Opportunities’ (1988) 14 Mon VL Rev 83; Cockburn, ‘Frustration of Commercial Leases’ (1993) Qld Lawyer 195; and see O’Hara, ‘The Frustrated Tenant — Towards a Just Solution’ (1994) 2 APLJ 1. Cockburn’s article contains a useful discussion of relevant considerations in determining whether a lease is frustrated (pp 206– 11). In the meantime there are a number of more recent Australian decisions which have either applied the doctrine to leases or indicated that it is applicable, but is not attracted in the particular circumstances. If any ‘golden thread’ can be extracted from these cases it is probably the same that runs through the speeches in the House of Lords in the National Carriers case — ‘hardly ever’! Turning now to the more recent Australian cases, a convenient place to start is City of Subiaco v Heytesbury Properties Pty Ltd (2001) WAR 146 (FC). In this case [page 200] the leases were very long-term leases by Australian standards, four 99-year leases. A significant part of their remaining terms had been purchased by Heytesbury with the intention of developing the land commercially. In the meantime Heytesbury continued to sub-lease the land to Humes Ltd, from

which Heytesbury had purchased its interest in the leases, which carried on a concrete pipe manufacturing business. This type of business was within one of the permitted uses under the leases. In fact the leases imposed an obligation to carry on manufacturing on the leased premises, an obligation which Heytesbury had requested the City, as landlord, to waive; but this request had been refused. The permitted use under the leases had been varied, in 1984, to permit the warehousing, wholesaling or retailing of goods manufactured on the premises — or in certain other, specified, circumstances, but provided the use did not contravene the provisions of the town planning scheme in force from time to time. In 1993 the relevant planning scheme was amended to prohibit manufacturing on the leased land. An application by Heytesbury for a permit to conduct a concrete pipe manufacturing business was refused in 1993 but it continued to treat the leases as subsisting. This situation continued until 1996 when Heytesbury sold its interest in the leases to the Subiaco Development Authority for $2.5 million. The rights of the parties were preserved under the agreement assigning Heytesbury’s interest and in this context one of the issues it raised in proceedings against the City was frustration. In relation to the issue of frustration, Ipp J (with whom Malcolm CJ and Wallwork J agreed) reviewed the authorities in relation to the basis of the law of frustration in relation to contracts generally and then considered its application to leases (see at (2001) WAR 163–5). In relation to the basis of the doctrine of frustration generally, Ipp J said (at 163–4): [66] The law relating to frustration of contracts was discussed by Stephen J in Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 at 162–163 in the following terms: It is no doubt true, as critics complain, that the various expositions of the true basis of the doctrine of frustration leave imprecise its actual operation when applied to the facts of particular cases. How dramatic must be the impact of an allegedly frustrating event? To what degree or extent must such an event overturn expectations, or affect the foundation upon which the parties have contracted, or, again, how unjust and unreasonable a result must flow or how radically different from that originally undertaken must a contract become (to use the language of some of the various expositions), before it is to be

regarded as frustrated? The cases provide little more than single instances of solutions to these questions. These differences of application of the doctrine of frustration were keenly appreciated by both Latham CJ and by Williams J in their consideration of the doctrine in Scanlan’s New Neon Ltd v Toohey’s Ltd (1943) 67 CLR 169. They are, perhaps, inevitable in questions of degree arising when a broad principle must be applied to infinitely variable factual situations. [67] In Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 357, Mason J, in effect, adopted these remarks, saying: [page 201] I agree with Stephen J’s acceptance [in Brisbane City Council v Group Projects Pty Ltd] of the approach adopted by Lord Reid and Lord Radcliffe in Davis Contractors [1956] AC 696. Lord Reid said that the task of the court is to determine ‘on the true construction of the terms which are in the contract read in light of the nature of the contract and of the surrounding circumstances’, ‘whether the contract which they did make is … wide enough to apply to the new situation: if it is not, then it is at an end’ (at 720–721). Later he described frustration as ‘the termination of the contract by operation of law on the emergence of a fundamentally different situation’ (at 723). Lord Radcliffe (at 729) said: … frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract … It was not this that I promised to do.

His Lordship, noting that special importance attaches to an unexpected event, observed ‘There must be as well such a change in the significance of the obligation that the thing undertaken would, if performed, be a different thing from that contracted for.’ In relation to leases, particularly, Ipp J continued (at 164–5): [68] The cases in which the doctrine of frustration could properly be applied to leases are extremely rare (National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675 at 688–689 per Lord Hailsham). One reason for the rarity is that a lease is more than a contract, it conveys an estate in land. Thus, in many instances, frustration of leases will not occur because the tenant will still have that which he or she bargained for, namely, the leasehold estate — particularly when it has considerable value. In that event, the tenant would be ‘left with something he could use’ (per Lord Wilberforce in National Carriers Ltd v Panalpina (Northern) Ltd at 694). Of course, that would not be so when the estate is ‘unusable and unsaleable’ (per Lord Wilberforce at 695). [69] An example of the tenant being ‘left with something he could use’ is London & Northern Estates Co v Schlesinger [1916] 1 KB 20. By a wartime order in council, an Austrian subject, who was an ‘alien enemy’, was prohibited from residing within certain specified areas, including the area where the leased premises were situated. Although he could not personally exercise a right of personal occupation, he could sub-let the premises and therefore there was no frustration. [70] Another example is Whitehall Court Ltd v Ettlinger [1920] 1 KB 680, where a tenant was forced to give up possession of leased premises by authorities acting under wartime regulations. As there was a requisition of the premises only for ‘the time being’ and as the tenant still had the leasehold interest in the property (which was a benefit to him), there was no frustration. [71] In determining whether a frustrating event has occurred, regard may be had to all relevant circumstances. The evidence in question is not admitted so as to construe the contract and the parol evidence rule

has no relevance. The purpose of the evidence is simply to show the change in obligations and that the contract cannot be performed in the way contemplated by the parties. Thus, in Brisbane City Council v Group Projects [page 202] Pty Ltd the economic and other consequences of the relevant event were examined. In Finch v Sayers [1976] 2 NSWLR 540, a case where it was said that a contract of employment had been frustrated, Wootten J took into account the nature of the illness of the employee, the prospects of recovery and other relevant matters. In Bank Line Ltd v Arthur Capel Co [1919] AC 435 at 454, Lord Sumner said, ‘What happens [after the frustrating event] may assist in showing what the probabilities really were, if they had been reasonably forecasted …’ It has been said that what the parties say and do about the event said to cause the frustration ‘is only evidence, and not necessarily weighty evidence, of the view to be taken of the event by informed and experienced minds’: Hirji Mulji v Cheong Yue Steamship Co Ltd [1926] AC 497 at 509. Ipp J also referred to other factors that were important in the particular circumstances: see at 165. These included the fact that: the leased land was useable and saleable and was regarded as being critical to the redevelopment of the area and in which Heytesbury wished to participate, the evidence of this being the actual sale of the leases to the development Authority; when the planning scheme was amended Heytesbury had no intention or desire to manufacture at the leased premises; and, finally, the treatment, by Heytesbury, of the leases as ‘fully operative’ for three years after the town planning amendment. The latter was said to be fatal to the frustration claim: see Ipp J at 165, [75]. And see Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd (2010) 14 BPR 27,605, where Barrett J expressed the view that the question of whether the doctrine of frustration applied to leases had not been the subject of ‘seriously considered dicta of a majority’ of the High Court (adopting the description made relevant by Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230

CLR 89 at [134]) and that, in light of the decision in Heytesbury Properties, ‘it cannot be said today, as an abstract proposition, that the doctrine of frustration has no application to leases, in the sense that a lease can in no circumstances whatsoever be discharged by frustration’: at [220]. There are some cases in England, Scotland and Australia where leases have been avoided successfully on the basis that a frustrating event had occurred. In England and Scotland, see Taylor v Caldwell (1863) 3 B & S 826; 122 ER 309 (where, absent negligence by the tenant, the building or structure the subject of a short-term lease was destroyed totally); Krell v Henry [1903] 2 KB 740 (where the purpose of the leases was to enable the tenant to view the coronation procession of Edward VIII, which was cancelled); Denny Mott & Dickson v James B Fraser [1944] AC 265 (where wartime restrictions prevented performance of a supply contract integral to the subject matter of an agreement for lease); Tay Salmon Fisheries v Speedie [1929] SC 593 (where a bombing range was constructed near a salmon fishery in Scotland which was, consequently, rendered unusable); and see Woodfall’s Landlord and Tenant, para 17.282. In Crickelwood Property and Investment Trust Ltd v Leighton’s Investment Trust Ltd [1945] AC 221, Lord Simon LC was not prepared to deny the possibility of frustration: ‘if, for example, some vast convulsion of nature swallowed up the property altogether, or buried it in the depths of the sea’: at 229. In Australia, see Robertson v Wilson (1958) 75 WN (NSW) 503 and Sheill v Symonds [1951] SASR 82 (FC) at 88 (per Ligertwood J; [page 203] with whom Napier CJ and Abbott J agreed on the frustration point) (premises rendered unusable or inaccessible as a result of the operation of an act or regulation); and see Liberty Investments Pty Ltd v Sakatik Pty Ltd (CA(NSW), 30 August 1996, unreported) (accepting the possibility that a court may properly find that a lease had been frustrated, but concerned principally with procedural issues on appeal); and Re Brickworks Markets Pty Ltd (1997) 74 FCR 165 (FCA) at 182, where Mansfield J appeared to accept the general possibility of the doctrine of frustration applying to leases, commenting that an increased burden to pay rates and taxes would not necessarily amount to frustration and,

further, raising a possibly significant issue (which it was not necessary for him to consider) in relation to whether a lease registered under the Torrens legislation can be frustrated by a supervening event, referring to Firth v Halloran (1926) 38 CLR 261; National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675; and Shevill v Builders Licensing Board (1981–82) 149 CLR 620). For a collection of cases in England and Australia where a claim that the lease has been frustrated has failed, in addition to the cases referred to above, see Woodfall’s Landlord and Tenant, para 17.282, and Redfern and Cassidy, Australian Tenancy Practice and Precedents (LexisNexis Butterworths, looseleaf), [17 450] and [17 455]. There is some authority to support the view that ‘partial frustration’ may be a possibility where it is temporarily impossible to perform a particular covenant or covenants, rather than the lease as a whole. It has been suggested that the result would be to suspend any obligation to perform the affected covenant or covenants during the temporary impossibility of performance: see Leighton’s Investment Trust Ltd v Cricklewood Property and Investment Trust Ltd [1943] AC 221 at 233 (per Lord Russell); and see Woodfall’s Landlord and Tenant, para 17.283. Authorities in the United Kingdom, the United States, Canada and Australia are considered in the context of a discussion of the doctrine, theory and policy issues in relation to frustration and leases in O’Hara, ‘The Frustrated Tenant — Towards a Just Solution’, (1994) 2 APLJ 1. The application of the doctrine of frustration to leases may, of course, be provided for by making express provision as to the rights of the parties on the occurrence of a ‘frustrating event’ or ‘events’ (as far as any can be anticipated): see City of Subiaco v Heytesbury Properties Pty Ltd (2001) WAR 146 (FC) at 163, [65] (per Ipp J, referring with apparent approval to the judgment of White J at first instance). In this respect regard should be had to the statutory provisions implying or providing for the adoption of lease covenants: see [7.1]; see also some drafting suggestions in Cockburn at 13 Qld Lawyer 213–16. The consequence of a finding of frustration of a contract is to discharge obligations in futuro, and not to produce something in the nature of rescission

ab initio; but the occurrence of a frustrating event does not produce a right to damages, though it does [page 204] not affect a cause of action in damages which has already accrued, and, as a general law, contract terms cannot be enforced once frustration has occurred: see Carter, Contract Law in Australia (6th ed), [34-02]–[34-05] and following; and see Greig and Davis, p 1331 and following; and see Conveyancing Service NSW (LexisNexis Butterworths, looseleaf) [13640] where, referring to Minister for the Army v Dalziel (1944) 68 CLR 261 at 302 (per Williams J) it is said that the effect of frustration is to bring the contract to an end, a position seemingly unaffected by the Frustrated Contracts Act 1978 (NSW).

Collateral warranty [6.11] It often happens that someone is induced to take a lease or enter into some other agreement by a representation made by or on behalf of the other party to the transaction, the lease or other agreement containing no provision concerning the matter in question. Sometimes the party so induced is able to establish fraud and the other elements necessary to found an action for damages for deceit. At other times it is possible to establish that the statement made was not a mere representation, but constituted a warranty in law, being a warranty collateral to the lease. Such a case was De Lassalle v Guildford [1901] 2 KB 215; [1900–03] All ER Rep 495, where the plaintiff, who was negotiating to take a lease from the defendant, refused to hand over the counterpart until he received a verbal assurance from the defendant that the drains of the house were in order. The drains were not in order and the plaintiff suffered loss in consequence. The Court of Appeal held that the plaintiff was entitled to recover, saying, at KB 221–2: Now what constitutes a warranty in law, or a mere representation? To create a warranty no special form of words is necessary. It must be a collateral undertaking forming part of the contract by agreement of the

parties express or implied, and must be given during the course of the dealing which leads to the bargain, and should then enter into the bargain as part of it. It was laid down by Buller J as long ago as 1789 in Pasley v Freeman (1789) 3 TR 51; 1 RR 634; [1775–1802] All ER Rep 31: ‘It was rightly held by Holt CJ’ in Crosse v Gardner [1688] Carth 90 sub nom Cross v Garnet [1688] 3 Mod 261 and Medina v Stoughton [1699] Salk 210; 1 Ld Raym 593: ‘and has been uniformly adopted ever since, that an affirmation at the time of sale is a warranty provided it appear on evidence to have been so intended’. In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment. In the former case it is a warranty, in the latter not; see Benjamin on Sales, 3rd ed, p 607, whose statement upon the law, in my judgment, is accurate. That the above constitutes a warranty upon the sale of a chattel cannot be doubted, and why not upon the sale of real property, or upon the granting and taking of a lease if it be collateral? I know of no authority which shows, nor do I see any principle upon which it should be held, that, the like conditions existing, such an affirmation does not constitute a warranty upon, as in this case, the granting of a [page 205] lease. Now in the present case, did the defendant assume to assert a fact, or merely to state an opinion or judgment upon a matter of which he had no special knowledge, and upon which the plaintiff’s wife, on behalf of her husband, might be expected also to have an opinion? What is it the defendant asserts? I paraphrase the evidence: ‘You need have no certificate of a sanitary inspector — it is quite unnecessary; the drains are in perfect condition. I give you my word upon the subject. Will that satisfy you? If so, hand me over the counterpart.’ What more deliberate and emphatic assertion of a fact

could well be made during the course of the dealing which led up to the counterpart lease being handed over to the defendant? That the question asked and the answer given were seriously intended, to use the words of Wills J in Best v Edwards (1895) 60 JP 9, to be the basis of the contractual relation between the parties, I cannot doubt. There is the evidence that the plaintiff would not take the lease unless the drains were guaranteed, and surely the statements made by the defendant were not made on the assumption that they were to be of no avail to the plaintiff except they were made fraudulently. In my judgment everything necessary to establish a warranty has in this case been proved. The next question is, was the warranty collateral to the lease so that it might be given in evidence and given effect to? It appears to me in this case clear that the lease did not cover the whole ground, and that it did not contain the whole of the contract between the parties. The lease is entirely silent about the drains, though there is a covenant that the lessee during the term should do the inside repairs, and the lessor the outside repairs, which would, I suppose, include the drains which happened to be inside or outside the house. There is nothing in the lease as to the then condition of the drains ie at the time of the taking of the lease, which was the vital point in hand. Then why is not the warranty collateral to anything which is to be found in the lease? The present contract or warranty by the defendant was entirely independent of what was to happen during the tenancy. It was what induced the tenancy, and it in no way affected the terms of the tenancy during the three years, which was all the lease dealt with. The warranty in no way contradicts the lease, and without the warranty the lease never would have been executed … Another example of a collateral agreement not inconsistent with the main contract is Clement v Morris [1922] VLR 189. Difficulty may be experienced, however, in satisfying the court that a verbal statement which preceded the making of the written lease amounted to a warranty: Heilbut Symons & Co v Buckleton [1913] AC 30; [1911–13] All ER Rep 83; Cutts v Buckley (1933) 49 CLR 189. The only conclusion which will support a collateral warranty is that the statement relied on was promissory and not merely representational: J J

Savage & Sons Pty Ltd v Blakney (1971) 119 CLR 435; [1971] ALR 92. Moreover, a party may not set up a collateral agreement which conflicts with the main agreement: see Hoyt’s Pty Ltd v Spencer (1919) 27 CLR 133; and Maybury v Atlantic Union Oil Co Ltd (1953) 89 CLR 507; and s