Benmar Properties Pty Ltd v Makucha; Makucha v. Benmar Properties Pty Ltd & Anor [1993] QSC 269
0
0
0
IN THE SUPREME COURT
OF
QUEENSLAND
No. 557
of
1992
BETWEEN:
AND:
BENMAR PROPERTIES PTY LTD
(ACN 010 729 496)
PAUL MAKUCHA
Plaintiff
Defendant by
Original Action
AND BETWEEN:
PAUL MAKUCHA
Plaintiff
AND:
BENMAR PROPERTIES PTY LTD
First
DefendantAND:
. REGISTRAR OF TITLES
Second
Defendant by Counterclaim
REASONSFORJUDGMENT-THO~J.
Delivered
the
lOth day
of
September, 1993
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A more detailed statement of the facts • • . • . . . . . • • . . . . . . . . . 5
Validity of the leases . . . • . • . . . • • . . . • . . • . . . . . • • . . . . . . . 15
Termination- of the leases • . . • • . . . • • . . • . • . . . . • . . . . . • • . 35
Relief against forfeiture • . . . • • . • . • . • • . • . • . • • • • . . . • . • • 38
Other matters .
~
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
-- 1 of 40 --
2
The
plaintiff
(Benmar) is in
the
business
of
outdoor advertising, and
makes
arrangements
which
permit interested
companies (including brewery and
cigarette
companies)
to
display signs
near
highways.
The two signs
that
are
in issue in
this
case
are
displayed on
either
side
of
the
Pacific
Highway
near
Beenleigh.
The
one
on
the
western
side
of
the
highway (on land described as
lot
2)
is a double sided
"trivision" sign, and
that
on
the
other
side of
the
highway (situated on
property
described
at
lot
5)
is a double sided illuminated
static
sign known as "Big
Bertha".
,(
The
income
generated
from
these
signs is,
at
least to
my
mind, surprisingly Q
high, being
of
the
order of about
$250,000
per
annum, whilst
the
outlays
are
quite
low.
The plaintiff,
it
would
seem, succeeded
in establishing two tempting profitable
Q
assets.
The. means by which
the
plaintiff
is in
the
position
to
control
the
signs and
make contracts
with those interested
in advertising
their
products, depends upon two
registered
leases which were granted
by
the
owner
of
the
relevant
lots in
December
1988. The leases were lodged in
the office of the
Registrar of Titles on 29th June, Q
1989 and
were registered
on 20th December, 1989. They
grant to the plaintiff for
a
period
of
99 years commencing
1st February, 1989
the right to
install and
maintain
Q
an advertising device on a designated
part
of each lot, as delineated in a surveyor's
plan which forms
part of the
lease. The
rental reserved under each lease was $1
per
year.
At material times the plaintiff has held licences from
the Albert Shire
Council for the
display of its signs, pursuant to the
licensing by-law of
that
Council
which is called by-law no. 8. From time to time variations to the signs have been
made with the permission of the Council. Fairly substantial licence fees are
involved, and the evidence shows that the fee for "Big Bertha" rose to $2,811 in
-- 2 of 40 --
3
1991.
It
is
admitted
on
the
pleadings
that
the
Council licensed
the
plaintiff to
operate
the
signs, and
it
is
quite
plain
that
the
plaintiff
has done
what
the
Council
has
required
of
it
from
time
to time
and
that
the
Council has no
quarrel with
the
plaintiff
in
relation
to
its
continued operation
of the
signs.
The
first appearance
upon
the
scene
of the
defendant
(Mr Makucha) was on
28th
November, 1990. On
that
date
he signed a
contract to
purchase
the
freehold
from
the
mortgagee
(Partnership Pacific)
of the registered
proprietor (Firewater
Pty
0 Ltd).
He
knew
of
the
registered
leases
and was
aware of their
contents.
He
did
not
complete
the
purchase until
almost
a
year
later
(15th November, 1991). However in
0 early
December,
1990
very
soon
after
signing
the contract
with Partnership Pacific,
he
made
the
plaintiff aware of
his
desire
to take
over
the
signs.
There
followed a low
offer
which was refused. Since then
the
defendant
has
alleged
that
the
lease
is invalid,
threatened
expensive legal proceedings, alleged
zoning
defects
and consequential breach of each
lease, given
notice of termination
Q of
the
leases, and
brought
multiple
court
actions including (so far) two appeals
to
th~
Court of
Appeal. This has
been based on investigation, presumably initially
of
local
0 authority
files, with
the
object of
uncovering some irregularity or
invalidity
that~~,
might found an allegation
of breach or weaken
the plaintiff's
position. The laws
governing
the activity of local authorities, particularly town planning law, have
become so complex
that
any such search may be thought to have reasonable
prospects of uncovering some practices that
fail
to meet the requirements of
at
least some part of the
Local Government
Act or
by-laws, and this case tends to
confirm that
notion. The defendant chose
to
share his concerns of illegality with the
Council and with the plaintiff's customers. The plaintiff's perception that the
defendant was "coming at us from all sides" is by no 1Ileans an overstatement. It
-- 3 of 40 --
4
must
be
recognised
that
the
defendant
has
the
right to
endeavour
to
destroy
the
leases by any legal means.
At the
same
time,
I do
not
think
it
unfair
to
identify
his
conduct since
the
end of
1990
as
a
sustained commercial raid
with
a
number of
oppressive
features.
At the
end
of
the
day
the
questions
are
whether
it
is soundly
based
in law.
Despite
the
prolixity
of
pleadings and
material,
counsel
agree
that
there are
0
three
basic
issues.
These
may
be
briefly
stated
as follows:
1. Is
the
lease
void?
(This depends mainly upon
the
contention
that
it
amounts
to
a subdivision and 0
that
s. 34(8)
of the
Local Government
Act
was
not
complied with).
2. Were
the
termination notices of
20th March, 1992
effective to determine
the
lease?
(This involves
the
validity of the
s. 124
notices dated 9th
December,
1991
0
alleged
breach of cl. 3.12
of the
lease, and required
the
breach
to be remedied
by procuring
the
land
to be
included in an appropriate zone.
The defendant
0
nominated
three
months as a reasonable period
to
remedy the breach. The
main questions
are whether there
was a
breach
and whether
the plaintiff
has
remedied
it
within a reasonable time.)
3. Should
the plaintiff be relieved against forfeiture?
(This question only arises if
question 1 is answered "no", and if the defendant
is found
to have validly terminated the lease. As
the great
bulk
of the
evidence in the case was admitted on this issue only,
it
will be desirable
that
I
address this question in any event.)
-- 4 of 40 --
5
A
more detailed
statement of
the
facts
In
about
1986 a company named Aosco purchased a number
of
allotments
including
lots
2 and 5 upon which
the
relevant
signs now
stand.
It
was
run by
the
same interests
as
those
in
control
of
the
plaintiff,
and for
practical
purposes
may be
regarded
as
the
plaintiff's
predecessor in
the
relevant
outdoor advertising business.
Applications
were made to the
Albert
Shire Council for permission
to
erect
and
display advertising signs, and licences were
issued. On
lot
2 a trivision sign was built
Q by Aosco in 1987
at
a
cost of
about $80,000.
It
was installed in
replacement of
an
earlier
static
sign.
Registration of the
new sign was obtained in December, 1987 and
Q
the
licence (apparently number 0364) has
been maintained
thereafter.
In
the case
of
lot
5, a sign was
erected
at
a
cost of between
$1.50,000 and $160,000 in April, 1989.
Again
the
licence
(number 0998) has
been maintained.
On
the
advice
of accountants, Benmar became
the
vehicle by which
the
advertising business was conducted and Benmar became
the
lessee upon whose
tenure
Q
the
right to
continue
to
display
the
signs depends. Initially
it
was intended
that
Aosco should
grant
a
lease over
the relevant parts of
lots 2 and 5
to
Benmar (whose
U name was
then
Ventel), and leases in a form. very similar to those in issue in
the
present action were executed
and lodged in
the
Titles Office. These however were
withdrawn
to enable a
sale of the
freehold from Aosco to a third party to
proceed.
In
the
event, Aosco sold
the
land
to
Consulting and Design for about $450,000, on
30th November, 1988. That company quickly on-sold
it
to Firewater for $1M on 6th
December, 1988. There was an understanding or arrangement between the relevant
parties that
a lease would be granted by the purchaser to Ventel on the same terms
as the lease formerly granted by Aosco to Ventel which had been withdrawn from
registration to enable the sale to proceed. That arrangement was honoured, and on
-- 5 of 40 --
6
12th December, 1988
the
relevant
leases
were executed
by
Firewater
and Ventel.
These
were
eventually
registered
'in
the
Titles
Office
on 28th December, 1989.
The
practice of local
authorities,
of
the
practising
profession and
of the
Registrar of
Titles
in
relation
to
leases
of more
than
five years
where only
part
of
the
land is leased and when
the
parties
are
desirous
of
registering
the
lease
has
been
described in evidence. Under
that
practice
which has
been
followed for many years,
less onerous requirements
are
insisted upon in
relation
to the
preparation
of
surveyors' plans and in
relation
to
local authority
certification thereof
in
the case of
Q
subdivisions by
lease than
in
the
c~se
of
subdivisions as
they are
more generally
understood in which
separate titles are
created
out of an
existing
title.
The
usual Q
practices
in
relation
to these
matters
were
followed,
both
in
relation
to the
initial
leases from Aosco
to
Ventel and the·
ultimate
leases from
Firewater to
Ventel. This
involved
the
preparation of
survey plans delineating·
the
area
the
subject
of each
lease. Applications
were made to the
local authority for
subdivision and for sealing
of
the
survey plan. In
the
case of lot
2,
the
original application was made on 23rd Q
April, 1987,
but the area
for
the
lease seems to have been regarded by
the
Council
as too large, and on 2nd June, 1987 a plan
of
a
smaller area
(800m2 as
per
drawing 0
9467) was substituted. This was approved by
the
Planning and Development
Committee on 15th June, 1987 and by full Council on 25th June, 1987. With
respect
to lot 5,
the
application for subdivision was made on 2nd November, 1988 (with
respect to an area of 1000m2). The map on
the
Council file which shows
the
relevant delineation is a copy of the
drawing which is identified by Mr Lawson as
that
on 'his map 9944. The Planning ·and Development Committee approved the
proposed subdivision by lease on 14th November, 1988 and this recommendation was
adopted by the Council on 24th November, 1988.
-- 6 of 40 --
7
The
respective
leases, containing
the
prospective
survey plans,
were then
signed and
sealed by
the
Council in
the
usual way,
that
is
to
say
by authorised use
of
the
seal
with
the
signatures
of
the
Shire
Clerk
and
Chairman
upon a page forming
part
of
the
lease.
The consent
is endorsed on form
35
prescribed under
the
Real
Property
Regulations
of
1986.
It
is
called
a
general consent, and identifies
the
lease
and
title
reference.
It states
"the
Council
of
the
Shire
of
Albert
being
the
relevant
local
authority
hereby consent
to the
registration
of
the
instrument specified
in
item
Q 1 above". This is
taken
by
the
Registrar
of
Titles
as a
sufficient
indication
of
the
fact that the
local
authority
has
consented
to
the
subdivision
effected
by
the
lease,
Q and in
the
ordinary course such a
lease
will
be
registered.
It
should
be
noted
that.
both this form
and
the
relevant
survey plan
are
bound
into
the
lease,
but
that
the
local
authority's consent
is
not
endorsed upon
the
survey plan as such, as is :the case.
with subdivisions which lead
to the
creation of
additional allotments
and
title
deeds.
As
indicated above
the
original intention
that
Ventel obtain its. leases from
Q Aosco was
altered,
and in
its place
Ventel was
granted similar leases by
the
ultimate
purchaser, namely
Firewater.
The only
differences
in
the
two
sets of documents
'0
are-
(a)
dates of execution (1st November, 1988 and 12th December, 1988
respectively);
(b) commencing dates (1st November, 1988 and
1st February, 1989 respectively);
(c) an immaterial alteration to cl.
6~01
(mentioned
at
p. 136 of ex. 19);
(d) an immaterial correction to the description on plan 9467.
The subdivided areas and the plans were identical with
tho~e
approved by the
council. The position was explained to the Shire Clerk by a letter from the
plaintiff's solicitors (Messrs Porter
Clayt~n
and Co) on 30th May, 1989. The existing
-- 7 of 40 --
•'
8
consents
were
referred
to,
and
the
change
of parties
was noted. The new
leases
were
enclosed.
The
letter stated
that
they
had
been prepared
in
terms
identical
to
those
previously
executed
by
the
parties,
and although
this
is
not strictly accurate,
it
was
·not
in
my
view a
material
mis-statement. The differences
could
not
possibly
have led
the
Council
to
a
different
conclusion in
relation to these
notional
subdivisions. In
my
view
the
Council had
already
approved
the
subdivisions
that
were
involved in
these replacement
leases. The fresh leases
were
enclosed with a
request
for execution·
of
the
appropriate
forms
of
consent. These were
duly signed and Q
sealed
by
the
Town
Clerk
and Shire Chairman on
6th
June, 1989. On
20th
June,.
1989, a
meeting of
the
Council "endorsed"
the
actions of
the
Shire Chairman and Q
Shire
Clerk
in
executing
these
documents and
their
use of
the
common seal.
Mr
Porter
then
lodged
them
for registration.
In one instance
there
was a
Titles Office requisition brought about by
the
circumstance
that
the
copy
of
the
survey plan in
the
lease had
been reduced from B4 paper. Mr
Porter retrieved the
documents from
the
Titles Office,· and arranged for
the
replacement of the
Q
unacceptable document with another
copy
of
the
relevant
survey plan. I do
not
regard any
material alteration
as having occurred, and consider
that the
plans Q
approved by
the
Council,
attached to the respective leases
to
which
the
Council's ·
officers applied
the
Council's
seal
on
the
two
separate
occasions, and
the
plans in
the
leases which
are
now
registered
iri
the Titles Office are
in all material respects
identical. I do not understand Mr Douglas Q.C. (for
the
defendant), in
the
end,
to
have submitted otherwise. He maintained the
submission however
that the
leases
had not been lodged- for registration within six months
of the notation of approval of
the local authority. As to that
I hold that the relevant notations of approval were
-- 8 of 40 --
'•
9
made
on
6th
June,
1989, and
the
leases
were
lodged
for
registration
on
29th June,
1989.
The leases
were
finally
registered
on 20th December,
1989.
Benmar continued
its
business, obtained-
clients
for
the
signs, and
dealt
with
the
Council
pursuant
to the
Council's licensing
requirements under by-law 8.
The
defendant first came
upon
the
scene
late
in 1990, on 28th
November,
when
he
signed a
contract
for
the
purchase
of
six lots including
the
two lots
in
Q question in
these
proceedings,
from Partnership Pacific Limited
as
mortgagee
exercising power
of
sale, for
a
total
price of
$550,000.
It
was
not completed until
Q 15th
November, 1991,
but
the
defendant immediately showed his
interest
in obtaining
control of
the
signs in question.
In
about November, 1990
the
defendant telephoned Mr Smith (a
director of
Benmar) and
offered
to
buy
the
signs. In a second conversation with Mr
Smith
soon
after,
he
threatened
legal action
unless
the
signs
were
sold
to
him,
threatening
that
Q
the
plaintiff
would
be
"hauled into court" and
that it
would end up losing
the
signs.
Mr Smith (whose evidence I
accept) described
the
conversation as threatening
and as
Q couched in offensive language. The defendant Mr Makucha did .not
enter the
witness
box.
On 27th December, 1990
his
solicitors wrote to Benmar asserting
that the
signs could not be
lawfully used because of inappropriate zoning and
stating that
he
would upon completion of his purchase (then said
to be 13th March, 1991) require
strict
compliance with the terms of the lease. Mr Irvine (the principal director of
this part of Benmar's business) contacted the Council but was informed
that there
was no need for any rezoning, as the current licences were all that was required.
-- 9 of 40 --
10
In
early
1991
the
defendant
had
further
telephone calls with
Mr Irvine alleging
that
he
had
the
opinions
of
two
Sydney silks
to
the effect that
the
leases
were
invalid.
He
said
that
the
structures
were worth
no
more than
$200,000 and
that
Benrhar
shou~d
have
that
sort
of
rrioney
set
aside
for
a
court
action.
The plaintiff then
obtained
its
own legal advice
on 14th May, 1991 and
instructed
Roy Somerville Surveys
Pty
Ltd
to
act
on
its
behalf..
This
resulted
in
application
to the
Council on
4th
June,
1991 seeking
the
rezoning
of lots
2
and
5
to
.•
"special
facilities
(signage and siteline)".
After
some initial delay on
the
part
of
the
Q
Council,
the
stirveyors drew up rezoning applications on
6th
September,
1991.
The
applications
were
then
duly
advertised by
the
Council.
The defendant
Q
lodged objections
to the
applications on
15th October,
1991.
There were two
other
objectors. The defendant's
grounds
of
objection included
that
it
was wrong
to
effect
"a spot
zoning
of one small leasehold
area"
and
that the
application was
inconsistent
with
the
development and
use
of the
overall parcel. The defendant emphasised his
objection with filrther
letters to the
Council on 18th October, 29th
October
and Q
18th November, 1991. The
last
mentioned
letter
was
sent
only
three
days
after
he
finally
completed
his purchase
of the
land.
It
made
the
further assertion
that the
Q
applications for rezoning were not
valid and ought not to be dealt with by
the
Council. He alleged
that the
applications were not
in
the
prescribed form, did
not
specify
the
prescribed information and were not consented to
by Partnership Pacific
which he alleged
to be the
"owner"
of the properties
at the relevant time.
The defendant also caused his solicitors to write directly to the plaintiff's
customers (including W.D; and H.O. Wills and Castlemaine Perkins) alleging
that the
advertising was an illegal use of the land.
-- 10 of 40 --
11
Despite
these
disruptive
tactics,
the
Council's Planning and Development
Committee
resolved on 20th November, 1991
to
recommend approval
to
the
Minister,
subject
to
conditions which
might be
regarded
as normal conditions.
On
20th
November, 1991
the
defendant commenced proceedings in
the
Planning and Environment
Court
seeking declarations
that
the
applications for
rezoning were
invalid. O'Sullivan
D.C.J. ruled
that
she
had no jurisdiction
to hear
the matter.
The defendant
subsequently appealed against this decision and on
()
13th May, 1992
the
Court of
Appeal ruled
that
HerHonour
had jurisdiction and
that
it
should
be heard
and
determined
according
to
law. Such a
further determination
Q has however
been overtaken
by
other
events
including
the present
action. There
can
be
little
doubt however
that the
defendant's
actions, including
the
cominencement of
those
proceedings
effectively frustrated
any
prospect of
a prompt successful .
rezoning based upon
the
favourable recommendation of
the
Council's
committee.
Having successfully impeded
the
progress
of
the
rezoning application,
the
Q defendant served
letters dated
11th December, 1991 enclosing form 10 notices under
the
Property
Law
Act
dated 9th
December, 1991. With
respect to each lease
the
Q actual date of service
is
not clearly established,
but
I shall
take
it
to be
12th December, 1991 which assumes immediate posting and one day delivery. In
each instance
the relevant content of the letter
and notice were as follows:
Letter
"We
act
for Paul Makucha. We enclose a Form 10 Notice to
Remedy
Breach of Covenant, which was today served
at the registered office
and
the principle place of business of Benmar Properties Pty Ltd.
The
Notice requires the lessee to remedy the breach within a reasonable
time after service of the Notice. We are instructed that our client
regards the period of three (3) months as reasonable notice to remedy
the breach.
If
the breach is not remedied within that period, our client
will regard itself as being justified in terminating the lease."
-- 11 of 40 --
Notice
12
"With
reference
to the
Lease
of
the
demised premises
dated
12th
day
of
December,
1988,
from
Firewater
Pty
Ltd
to
Ventel
Pty
Ltd
(which
has changed
its name
to
Benmar
Properties
Pty
Ltd) and
the
covenant
by
the
Lessee contained
in
clause
3.12
of
the
Lease
to
opserve,
perform
and fulfil all
the
requirements
of
any
statutes,
regulations,
ordinances
or
by-laws so
far
as
the
same may
apply
to the
demised
premises
or
to the
permitted
use and
the
breach
by you
of
that
covenant
the
Lessor hereby gives you
notice
and requires you
to
remedy
that
breach
by procuring
the
land
to be
included in a zone
under
the
Town Planning Scheme for
the
Shire
of Albert
in which
the
land
may
be
lawfully used for
the
purpose
of
advertising signs."
·'
The plaintiff, rightly
in
my
view, considered
that
it
would
be
impossible
to
Q
achieve
the
necessary rezoning in
that
time.
I
am satisfied
on
the
evidence
of
Ms Vigar and
of
Mr
Porter
that it
would
be
impossible
to
obtain such a
result
in Q
three
months, even with
a
co-operative
landlord and no
particular
problem from
objectors. In
the
light of
the
obstructive conduct already revealed
on
the part
of
the
landlord, such a
result
was impossible within anything like
the time
foreshadowed.
In January, 1992 Mr Irvine was able
to
arrange meetings with
repr~entatives
of
the
Council. During
the
first meeting he put
his case, and
at
the
second
meeting
Q
a solution was proposed by
the
Town Clerk which in my view
made
any rezoning
of
development areas quite unnecessary. The proposal was
to draft
an amendment
to
Q
the
town plan which achieved what both
the
Council and
the plaintiff had assumed
the
position
to
be, namely
that
if the
licensing requirements of the
Council with
respect to
advertising signs were observed, no further town planning consents would
be required. The Council's solicitor, Mr Fynes-Clinton was in attendance and was
asked by the Town Clerk to draft
an appropriate amendment.
In due course the
Council proposed
to the necessary amendment (apparently
pursuant to s. 2.18(3)(b) of the Local Government (Planning and Environment)
Act
-- 12 of 40 --
0
0
0
0
13
1990) and
it
was finally
gazetted
on 29th
January,
1993 as cl. 7A in Division 1
of
Part
2
of
the
town
plan.
It
is in
the
following
terms:
"
"7A
Despite clauses
5, 6 and 7, a
use
of
land:-
(a) which consists only
of
the erection
and subsequent display
on
particular
land
of
a
structure
which is
not
a building
(such
as
a advertising device);
(b) in
respect of
which a licence,
permit or registration must
be
obtained under some
other
law administered
by
the
Council; and
(c) in
respect
of
which
the
required licence,
permit or
registration
has
been obtained and is in force,
is a purpose
for
which
the
development may
be
carried out
on
the
land
concerned without
the
consent
of
Council.
Subject
to
compliance with
that
other
law, such a purpose does
not cease to be
one
to
which
this
clause
applies
by reason
only
of
changes in
the
appearance
or consent
of the
display
from
time to time or
by reason only
of
the
carrying
outfrom
time to
time of
work for
the
purpose
of
changing
its appearance
or content".
I have upheld
the
validity
of
that
amendment
in a judgment published
today
in
the
associated action
of
Makucha v. The Shire
of
the
Council
of Albert and Benmar
Properties
Pty
Ltd
(No. 671 of 1993).
Once this
alternative
solution was
put
in
train,
it
might have been thought
futile to
pursue a rezoning application as such. However,
it
was
not
a foregone
conclusion
that the
amendment would
be
made, and
the
plaintiff also sought
to
achieve rezoning. On 13th March, 1992
it
sent to the defendant's solicitors a request
for
the defendant's endorsement (as owner) of the
rezoning application. No such
endorsement has ever been forthcoming.
On 20th March, 1992
the defendant served notices dated 18th March, 1992
demanding immediate possession of the relevant properties. These were
accompanied by notices demanding the removal of the signs thereon, failing which
-- 13 of 40 --
14
the
defendant
would
arrange
for
them to
be
removed
and
stored
at
the
plaintiff's
cost.
The
present action
was
commenced
on
15th
April, 1992. On
19th June, 1992
the
defendant
filed a
complaint
in
the
Magistrate's Court
under
the
lustices
Act
alleging
breaches
of
cl. 5(3)
of
the
Town Planning
Scheme
on
the part
of
the
plaintiff
on 21st April, 1992.
The
matter
was brought on
before
a
Magistrate
at
Beenleigh on
25th August, 1993 (very
shortly before
the
commencement of
the
present
trial). The
Magistrate
found
the
complaint
made
out, ordered
that
no conviction
be
recorded, Q
and fined
the
plaintiff
$500 on
each charge
and
ordered
the
plaintiff
to
pay costs to
the
defendant complainant.
It
was
not submitted
that
any estoppel arises in Q
consequence
of
this proceeding, and in any
event
an appeal is intended · by
the
plaintiff. The relevance
of
this particular
episode is
difficult to
fathom,
but
it
was
presented
as
part
of
the
history.
It
is
consistent with my view
that
until cl. 7 A was
inserted into
the
relevant
town plan,
the
zoning was inappropriate for
the
plaintiff's
activities, and in
the
absence of special town planning consent, advertising was Q
prohibited within
the
existing zoning.
I do
not
propose
to recite the
evidence concerning dealings between Aosco Q
and Benmar, ·or other arrangements made
by Benmar in relation to the
sign and
the
disposition
of the
income which is generated by the
signs. Benmar is
the lessee and
.
it
is
the party
which must defend
the threatened
invalidity or determination of the
lease.
It
is also
the party that
is in
the
position
to earn the
income from the use of
the leased land. Similarly
the fact that other parties may or may not have an
interest in the sign does not in my view
affect the question of relief against
forfeiture, and I did not understand Mr Douglas in the end to make any submission
-- 14 of 40 --
15
suggesting
that
any
relevance
attaches to
the
inter-company
dealings
i.n
question. I
therefore
do
not
propose
to
lengthen
these
reasons
by
canvassing
that
area.
On
25th February,
1993, following a renewal
of the
risk
that
the
defendant
might
physically
interfere
.
with
the
signs notwithstanding
the
pendency
of
proceedings, Moynihan S.J .A.
granted
an injunction
against
the
defendant preventing
any
such removal. The defendant
appealed against
that
order,
and
the
appeal was
dismissed on
21st
May, 1993.
0 Validity
of the
leases
The principal submission is
that
insofar as
the
lease
subdivides land,
it
is
Q prohibited by s. 34(8)(c)
of
the
Local Government
Act
1936-
1985.
0
(J
Subdivision
for
the
purposes
of
that
Act
is defined in s. 3 as follows:
"'Subdivision,' 'subdivide,' and similar
expressions
mean
and
refer to
dividing land into
parts, whether
the
dividing is -
(a) By
sale, conveyance,
transfer, or partition,
or
(b)
(c)
By any
agreement
dealing
or instrument
inter
vivos (other than
a
lease for any
term
not
exceeding five years without right ofrenewal) rendering different parts thereof
immediately available
for
separate
disposition
or separate
occupation,
or
By procuring
the
issue
of
a
certificate of
title
under 'The Real
Property
Acts,
1861
to
1887', in
respect of
a
part
of the
land."
Section 34( 1) provides:
"A person
or corporation shall
not-
(a) cause to be
opened a new road;
(b) cause land to be subdivided,
except in accordance with this Act."
Section 34(8) provides as follows:
"(8) Preliminaries to subdivision. In a case where a subdivision does not
provide for the opening of a road, land shall not be subdivided until-
-- 15 of 40 --
16
(a) An application in
respect
thereof,
accompanied by plans (which
plans,
if
the
Local
Authority
so requires, shall show
the
contours
·.of
the
land and
all
known flood levels), has
been
approved
under
this
Act;
and
(b) Any
necessary
works have
been carried out
in
accordance with
the
requirement~
of
the
Local
Authority or
as may·
be
pre5cribed
by by-law;
(c)
(d)
A
plan
of the
subdivision
bearing
the
signatures
of
all
necessary
parties,
and a
statement
containing such
particulars
as
may be
necessary
to
identify
the
title
to the
land comprised in
such
plan, has been
approved by a
notation
of approval under
the
seal
of
the
Local Authority, including a
certificate
that
all
the
requirements
of
·the
Local
Authority
and
of
this
Act
and
of
any
by-law have
been
complied with;
The plan so
noted
under
the
seal of
the
Local Authority, and
endorsed with
the
approval
of the
Local Authority, has
been
registered
in
the
office of
the
registrar of titles:
Provided
that
such plan shall
be
lodged for registration
within
six
months
after
the date
of
the
notation of
approval
of
the
Local
Authority on such plan."
Section 34(9) provides:
"(9)
Registered
plans
to
be
deposited. A copy
of every such
registered
plan shall
be
deposited
at
the
office of the
Local Authority and
there
recorded, and upon any failure so
to
do within one month
after
such
plan has
been
so
registered
in
the
office of
the registrar of titles the
applicant shall
be
liable
to
a penalty not
exceeding
forty
dollars."
Section 34(17) provides:
"(17) .Restriction on registration of
instruments.
It
shall
not be
lawful
for
the registrar of titles to register
any instrument dealing with land
in a subdivision unless
the
plan
of
subdivision (with all roads,
if
any),
bearing
the
approval
of the
Local Authority, has been registered, or
unless in one of the cases following,
that
is to say - ... "
(The cases then specified are not relevant for present purposes.)
Prima facie the leases are instruments rendering different parts of a parcel of
land immediately available for "separate occupation". This is so even though the
occupation is of a limited kind and is confined to the use in the land for a limited
purpose. I note however that the s. 3 definitions apply "unless the context otherwise
0
0
0
0
-- 16 of 40 --
·~~~~~~~---~-~-~----·-··
----
----~----
17
indicates or
requires",
and
there are
substantial arguments
to the
effect that
some
parts of
s.
34
can
sensibly apply only
to
subdivisions in
the
better
understood
sense
of activity
which
causes
separate titles to
be
created
from an existing
title.
The main requirements of
s. 34 concerning
the
production
of
plans
necessary
for
subdivisions, and
their ultimate
perpetuation
by
the
Registrar of
Titles
are
contained
in sub-ss. (6), (8)
and (17). Sub-section (6)
deals with
the
requirements
when roads need
to
be
opened and sub-s. (8) deals with
the
situation where
the
0 subdivision does
not
provide
for
the
opening
of
a road. Sub-section (17) makes
it
unlawful
for
the
Registrar of Titles
to register
any
instrument
dealing with "land in a
0 subdivision" unless
the
plan approved by
the
local
authority
has
been registered.
The
registration of
plans
of
subdivision is also
contemplated by s. 119
of
the
Real
Property
Act
1861,
but
there
is no extended definition
of
subdivision for
the
purposes
of
that
Act.
It
seems to
me that that
section
has in mind what might be
called
the
conventional notion
of
subdivision, namely
the
creation of
additional
titles
Q
out of
an existing
title.
Such subdivisions
are treated
as
effected
by
the
registration of the relevant
Q plan
of
subdivision. Section 119(4) provides:
"119(4) [Proprietor
to
apply] Whenever land under
the
provisions
of this
Act
is subdivided,
the registered proprietor thereof
shall,
after the
plan
of
subdivision has been registered, apply forthwith
to take out
and
receive
in his own name, a
certificate of title
for each such subdivision
of the
land so subdivided as
the
Registrar, having
regard to the
number
of subdivisions shall deem necessary or expedient for the
orderly
registration of dealings therewith."
It
is impossible
to read that
provision as contemplating the more artificial
concept of subdivision by lease. This is a strong indication
that the "subdivision"
contemplated by s. 119 is what I have called a conventional subdivision. This is
further supported by the title of the section "When new certificates of title to issue
-- 17 of 40 --
18
in
respect of
subdivisions
of
land".
The
indications
are
not
all one way however, and
s. 119(3A), which was
inserted
in 1976,
refers to the
times
prescribed
by s. 34(6) and
34(8)
of
the
Local Government
Act.
. I
note
however
that
s. 119(3A)
refers
specifically
to
"a
plan lodged
for
registration"
which is
the
language
of
subdivisions
of
land leading
to
the
issue
of
new
certificates of
title,
but
not
the
language
or
practice of
subdivisions by lease. In
the
latter
instance,
I do
not
consider
that
the
Real Property Acts require
the
lodgment as such
of
a plan for registration, although
the
distinction is a fine one. In
the
ordinary course where
a
lease
is
granted with
Q
respect to
part
only
of
land
the
subject
of
an existing
title,
a plan will
be
included as
part
of
the
lease, and
the
lease
as such will
be registered.
In this indirect
way
the
plan may
be regarded
as becoming
part
of
the
register
under ss. 32 ·and 35
of the
Real Property
Act
1861. However
there
is no reason why some leases might
not be
registered without such a plan, as for example where a
metes
and bounds description
would
suffice.
0
The need for proper delineation
of
leases
of
part
only
of
a
parcel of land is Q
adequately
protected
by s. 120
of the Real Property
Act
1861 which
relevantly
gives
the Registrar discretionary power
to
"require
the proprietor ... desiring
to transfer,
Q
lease or otherwise
to
deal with
the same or
any portion thereof to
lodge for
registration ... a plan of such land in
the
prescribed form,
certified
by a licensed
surveyor ... ". In other words if he sees
fit to
do so
the Registrar can with
respect to
a lease impose plan requirements as rigid as those required for subdivisions under
s. 119. However he is not obliged
to
do so, and in
the
ordinary course a simpler less
expensive survey plan will be. sufficient to permit the registration of a lease. The
prescribed form (and other regulations. governing surveyors) would seem to contain
far more onerous requirements such as the inclusion of permanent pins, spikes and
-- 18 of 40 --
19
other
data
which
are
not
required
in
the
case
of
leases. By
contrast
form
8
prescribed under
the
Real
Property
Regulations 1986, which is
the
prescribed form
of
lease, has provision
for "description
of
land" and
for
"description
of
land being
leased
(demised premises)".
The form contains a
note
-
"sketch
plan
of
leased
area
must
be
in
accordance with
Registrar's
guidelines". I do
not
propose
to
pursue
the
guidelines
or
the matter
further. Quite
plainly
the
legislation, regulations and forms
all
contemplate different practices
with
respect to
subdivision by
lease than
for
the
0 subdivision
of
land as generally understood. The
practices
that
have developed
are
in
separate
streams.
This,
with respect, seems
sensible, and accords with
the
0 construction
I have given s. 119.
It
is generally undesirable
that
subdivisions by
lease
be visited with
the same
expensive provisions as
are
thought necessary in
order to
identify
separate titles.
Unfortunately
the
Local Government
Act
was
not drawn with such a
distinction clearly
in mind, and
the
one principal provision,
the rather
lengthy s. 34,
Q purports
to cover
all forms
of
subdivision; although
the
one principally in
the
mind of
the drafter
seems to be
subdivision
of
land into
separate titles.
The consequence of
Q this is
the
raising
of some difficult
questions
of construction as
to the effect
of
s.
34, and in particular, s. 34(8).
Mr Douglas Q.C. for
the
defendant submitted
that the
requirements of s. 34
are "mandatory not directory". I
prefer the
approach expressed in Attorney-General
ex rei Franklins Stores v. Lizelle Pty Ltd (1977) 2 N.S.W.L.R. 955. In
that
case
Reynolds J .A. considered
the
question whether non-performance of a requirement
prescribed by a
statute
should be regarded as a condition precedent to the validity of
subsequent dealings. His Honour said (at pp. 963-964):
"In the solution of similar problems, it has been customary for courts
to categorise statutory pre-requisites as being, on the one hand,
-- 19 of 40 --
20
mandatory
or
imperative
and, on
the
other
hand, as
directory.
This is
but
a compendious way
of stating that,
in
some cases,
the
legislature
intended
that
failure
to
comply
with
certain
requirements
would
result
in
the
invalidity
of
the
Act to
which
these
requirements were
precedent or
that,
on
the
other
hand, non-fulfilment
of
the
requirement
did
not result
in
the
invalidity
of
the
Act."
His Honour
further
observed:
"Upon
the
basis
of the
consent
so issued, companies
may
be
formed,
capital
subscribed, buildings
erected
and
commitments of
all kinds
made. Is
the
legislature
to be
presumed
to
intend
that,
at
any
time
after the
issue
of the
consent,
its
validity is
to
be
open
to
impeachment
to the
detriment of
all who
acted
on
the
faith of
it?
Did
the
legislature intend
that
those
who wished
to
rely
upon a
development consent
should
seek
to
ascertain whether
in
the
particular
case
consultation
was
required
and,
if
so,
whether
the
private
files
of
the
council and
the referee
evidenced
it?
Did
it
intend
that, if the
answers
to
inquiry
were
favourable,
but
incorrect,
the
person acting
should
remain unprotected?
To
my
mind
these
questions suggest an
answer."
The
practices
followed with
respect to the
leases in
the
present case were
those
which have been followed for many years by local authorities,
the Registrar of
Titles,
private practitioners
and
the
public alike.
That
is
not
to
say
that
such
0
0
practices
are
in conformity with
the
law,
or
that
proper construction should give way Q
to general practice. It
is
to
say
however
that
all
the
actions taken
by all
parties
in
relation to the
leases in question (including
the
defendant's predecessor in
title,
Q
Firewater) were
done in good
faith
and in
the
expectation
that
valid leases would
result.
It
is necessary
to
look
at
each paragraph of
s. 34(8). I am satisfied
that
in
each instance, insofar as a subdivision
was
sought, an application in respect thereof,
accompanied by plans, was approved by the
local authority. Plainly
the
only
necessity for such an .application arose under the Local Government Act, and the
approval was under that Act. Exhibit 20 (the Council file) shows that in each
instance there was initially an application for subdivision of land, examination of it
-- 20 of 40 --
21
by Council
officers,
reference to the
relevant
Council
Committee,
approval
by
the
Committee,
approval
by
the
Council, and
reference
back
to
the: designated
officers
of
the
Council (including
the
Town Clerk)
for the.sealing of
the
appropriate survey
plan. In
each instance
there
was a
further
"application for
sealing
of
survey plan"
lodged
by
the
plaintiff's
surveyor. I
accept the
evidence of
Mr Moore
(the
Town
Clerk) as
to
the
usual
sequence
and in
particular accept
that
it
is
the
proposal
for
subdivision
with
which
the
Council is concerned.
There
is no
necessity
in
my
view
Q
that
the
eventual survey
plan
be
placed
before
the
Council as such.
It
was
submitted
that the
leases
were "never sighted
by Council". I
am not sure whether they were or
0 not,
but the real
point
is
that
relevant
applications and proposals
for
subdivision
were
considered by
the
Council and approved.
Not
only
were
the
initial proposals
approved, and
the relevant forms
signed by duly authorised officers of the.
Council;
by subsequent resolutions
the
Council expressly
ratified the
affixation of
the
seals
with
respect
to the
transactions
in question.
0 There
is no deficiency in
relation to
compliance with ss. 34(8)(a) or 34(8)(b).
However
there
is
more substance in
the
allegation
that
some of the
Q requirements of sub-s. 8(c)
were not satisfied.
It
will
be suffident
to
consider
the
question with respect to
one
of the
leases and I shall
take that
with
respect to lot
2.
Page
20
of
ex. 19 shows
the relevant plan
that
forms
part
of
the
lease, and p. 18
shows
the
Council's endorsed consent (under seal although
the
photocopy does not
show it), also forming
part of the
lease. I cannot recall any submission as
to
who
are
the
"necessary parties", and
the
Local Government
Act
does not readily supply the ·
answer. In the event it
is signed under the common seal of Ventel and is also
endorsed by the surveyor applicant. It is capable of being regarded as a plan of the
-- 21 of 40 --
22
subdivision,
and.it certainly
contains such
particulars
as are
necessary
to
identify
the
title
to the
land
comprised
in
the
plan.
The
next
question under sub-s. (S)(c) is
whether
that
plan "has
been
approved
by a
notation
of
approval under
the
seal
of the
local
authority
... ".
The
Council has
not
done so in
those precise
words. What
it
has done,
under
its
seal, in
the
words
of
the
Real Property
Act
general consent form, has
been
to
"consent
to the
registration
of
the
instrument specified
...
"~
Can this
be
regarded
as a
notation of
approval
of
the
plan
of
subdivision which appears two pages
further
on in
the
same instrument?
Q
I
am
inclined
to
hold
that
it
can be
and
that
it
is.
The consent to
the
registration of
the'
instrument
that
effects
that
notional subdivision is necessarily an approval
of
Q
that
plan
of
subdivision and
of
no
other.
That
is indeed
the premise
upon which
the
practice
has grown up, and upon which
the relevant
public bodies and officials have
sought
to
comply with
the
requirements
of
the
Act.
If
however
they
and I
are
wrong
about this,
the
non-compliance
can
only
be
described as a
trivial
and
technical
oversight with no possible adverse
effect
upon
the
rights of
any
citizen. 0
The final
requirement of s. 34(8)(c) is
that
there
should
be
included "a
certificate that
all
the
requirements of the
local authority and of this
Act
and of Q
any by-law have been complied with". This plainly was
not
included. The submission
does
not suggest
that
any
relevant by-law was
not complied with, and
it
is simply
the
absence
of
a
certificate
saying so
that
is relied upon. I must therefore
hold
that
the
notation of approval did not include a
certificate to that effect
and·
that that
particular requirement of
the
sub-section was not complied with. However I find
it
difficult to infer any intent· on· the part of the legislature
that
in
the context of an
application
of
this kind. the omission of such a certificate should render invalid the
subdivision or the lease.
-- 22 of 40 --
0
0
23
It
was
further
pleaded
by
the
defendant
(in
para.
19
of
the
defence
and
counterclaim)
that
"no such plan was
registered
in
the
office of
the
Registrar
of
Titles".
It
may be
a
moot
point
whether
the
relevant
plan in a
lease
that
effects
a
subdivision is
ever registered
as such,
but
on one view
it
is
registered
in
the
office of
the
Registrar of
Titles,
as
the
lease
of
which
it
forms a
part
has
been registered
there.
In Rock v. Todeschino (1983) Qd.R. 356, McPherson
J.
considered,
without
expressly deciding,
that
a plan
of
subdivision identifying an
easement
was
itself
an
"instrument"
which was.
registered
upon
entry
by
the
Registrar
of
Titles
on
the
Certificate
of
Title for
the
relevant
land
of
the.
appropriate memorial of
subdivision
by
means
of
the
plan. In
the
present case the actual
title
reveals
the
relevant
leases.
On lot
2
·instrument of lease
J962567M is
recorded
on
the title,
and
particulars of
the
lease
are stated
as
"of
part
of
the
land
to
Ventel
Pty
Ltd
... " (see
ex. 14). Sections 32 and 35
of the Real
Provertv
Act
1861 support
the
suggestion
that the
plan, upon
registration of
the
lease, is also
registered.
If
this is
not correct,
Q
it
serves
to
emphasise
the
inappropriateness
of the
wording
of s. 34(8)(d)
of the
Local
Government
Act
if
it
is intended
to be
applied
to
subdivisions by lease.
Q My conclusion with
respect to
s. 34(8)(d) is
that
the relevant plan has been
registered
in
the office of the Registrar of
Titles. However
that the
plan is not
itself noted or endorsed with
the
approval
of the
local authority; this is only
contained in
the separate consent within
the same lease document.
Mr Douglas
further submitted
that
under
the
proviso
to
sub-s. (8),
the
plan
was not lodged for registration within six months of the date of the
local authority's
approval. This was based on.
the premise that the
only approval of the local
authority was that with respect to the earlier withdrawn leases. However I consider
that separate applications were made with respect to each lease and that the ·
-- 23 of 40 --
24
approvals in question
related to the
leases
that
are
in issue in
the present
proceedings. The leases (including
the
relevant
plans)
were
lodged for
registration
well within
the
six months
of
the
"date of
the
notation of
approval" which
date
was
6th
June, 1989
for
each
lease. Indeed,
they were
lodged on 29th June, 1989.
Thus
far
then,
the
defendant
has
succeeded
in showing
what
I
regard as
two
minor omissions with
respect to the
multiple requirements
of
ss. 34(8)(c) and 34(8)(d)
of
the
Local Government
Act.
,·
'It
was
further submitted
that
the
Registrar of
Titles
acted
unlawfully in Q
registering-
the
leases in
contravention of s.
34( 17)
of
the
Act.
This sub-section has
been
set
out earlier (at
p. 15).
For
the
reasons already
stated
(pp. 17-19) I do
not
Q
consider
that the
Registrar
acted
unlawfully in this instance, although I recognise
the
difficulty.
of
reading 'all
the
relevant statutory
provisions so as
to
obtain a
tidy
logical
result.
My reasons,
briefly
stated are
-
(a) Sub-s. (17) expressly mentions
the
registration of
a plan of
subdivision.
It
is
directly
focused upon
the
'registration
of
subdivisions
by
the
Q
Registrar of Titles. The only
section
in
the
Real Property Acts dealing
with
subdivisions is s. 119
of the
Real Prooerty
Act of
1861. The most
Q
sensible construction of this sub-section in
the
Local Government
Act
is
that it
has in mind subdivisions under s. 119
of the
Real Property
Act
1861, and no others.
If
this is
correct, then
at
least
in
the context of
this -sub-section,
the
provision is directed to
conventional subdivisions
and there
is no additional requirement imposed upon sub-divisions by
lease. I am aware that
this involves application· of the qualification in
the- definition section of the Local Government
Act
"unless the context
otherwise indicates or requires" but in this instance, s. 34(17) of the
-- 24 of 40 --
0
0
0
0
25
Local Government
Act
and s. 119
of
the
Real
Property
Act
can be read
together far
more
appropriately
if the
legislature
is
taken
to
have been·
contemplating
the
same
kind of. subdivision, namely
the
conventional
subdivision
rather
than
the
special
extended
inclusion
of
subdivision by
lease. Both
the
Real Property Acts
and
the
Local
Government
Acts
are
important
legislative measures.
It
is
true
that
the
provisions in
the
Local Government
Acts were
passed
later
in
point of
time
and
if
the
two
Acts cannot
be read
sensibly
together
the
latter
will prevail.
However
it
seems
to me
that the
Acts can
only
be
read together
sensibly
by
treating
s. 34(17)
of the
Local Government
Act
as
relating
to
subdivisions
to
which
the
Real
Property Acts
apply.·.
(b) Assuming
to the
contrary
that
notional subdivisions by
lease are
intended
to be covered by s. 34(17),
the
relevant
plan
of
subdivision
was
that
contained within
the
lease.
For the
reasons given above, I
incline
to the
view
that that
plan has been registered
upon
the
registration of the
lease. This leaves as
the
only arguable deficiency
that
the registered plan of
subdivision is
not one "bearing"
the
approval
of the
local authority. The deficiency is
that the
approval
of the
local
authority is endorsed,
not
on
the
plan,
but
on a special form within
the
document of
which
the
plan forms a
part.
The. deficiencies in satisfaction of the requirements of s. 34
are therefore
limited to two minor omissions arising under ss. 34(8)(c) and (d), and, arguably, the
same deficiency under s. 34(17).
It was further submitted that the registration was contrary to s. 119 of the
Real Property Acts 1881. I have already stated why I consider that that section does
-- 25 of 40 --
26
not
apply
to
subdivisions
o.f
the.
present
kind. I shall however discuss
the
alleged
breaches
of
s.
119 on
the
footing
that
this
view is
incorrect.
If
s. 119 applies
to
a subdivision
of
this
kind,
the
proprietor
would
be
obliged
by sub-s. l(b}
to
"lodge for registration"
a plan
of
subdivision which "shall show
distinctly .
delineated
therein
every
separate
and
distinct
subdivision
into
which
the
land is,
by
the
plan, divided
marked with
a
separate
and
distinct
number
or
symbol".
Now whilst
the
plans within
the
leases adequately delineate
the
subdivision,
they
do
not.
mark
the
two
parts
with
different
numbers
or
symbols, unless
the
hatching is
to
be
regarded
as a symbol.
Further, those
plans
are
not "certified
as
accurate
by a
licensed surveyor" (under s.
119(1}(c}}
although
the
surveyor's name
appears thereon.
It
is hardly surprising
that
s. 119 has
not been complied with, in
that
neither the
plaintiff's
advisors nor.
the
Registrar of Titles thought this section
applicable
to the
registration of
such leases. The
practice of
the
Registrar
in such
matters
is
succinctly
stated at
p. 366
of
ex. 19.
0
0
On this footing
then several
omissions
of ·the requirements of
s. 119 would
be
Q
shown. However, in my view so
far
as leases
are
concerned, those persons
effecting
subdivision by leases
are
bound by
the
provisions
of
the
Local Government Acts, but
0
when
they. come
to
register their
leases, they are not subjected to the
additional
hurdle
of
s. 119 of
the Real Property
Act.
They will
be
governed by familiar
provisions which include ss. 52, 65 and
120 of
the
Real Property
Act
1861 and forms
8 and 35 of the Real Property Regulations 1986. No irregularities are
shown under
the Real Property Acts. if this view is correct.
The question then is whether two minor omissions arising under ss. 34(8}(c}
and (d), and arguably, the same deficiency under s. 34(17}, bring about the invalidity
of leases subsequently registered.
-- 26 of 40 --
0
0
27
Mr Douglas who
presented
his submissions
with admirable
conciseness, which I
am
unable
to match
in dealing
with them, relied
primarily
upon
two
decided cases,
re
Lehrer
and
the
Real Property
Act
(1961)
S~R.N.S.W.
365 and
Travinto
Nominees
Pty
Ltd
v.
Vlattas
(1972-1973)
12~
C.L.R. 1. In
re
Lehrer,
jacobs
j.
expressed
the
view
(obiter)
that
under
similar
legislation in New South Wales, a local Council could
not
give a qualified approval
of
a subdivision
such
as
"for
leasing purposes only". His
Honour did
not
consider
that
such
a provision was
truly
a condition (p. 373). This
does
not traverse
any submission upon which
the
plaintiff
relied,
but
it
underlines
the
difficulty
of
applying a
separate stream
of
requirements
to
subdivisions by lease
when such subdivisions
are
caught
up in a wider definition.
The
. principal propositions
are
that the later
enactment
(the Local
Government
Act)
prevails over
the Real
Property
Act,
that
the
requirements
of
s. 34
are
mandatory
and
not
directory,
that
the
Registrar
is bound
not
to register
in
breach of
s. 34(17),
that
no indefeasibility
of
title
results from
the registration of
Q .
the relevant interest,
and
that the
plaintiff
should
be
compelled
to execute
such
documents as will
cause
the register to
be rectified to remove the current
Q registration.
The legislation in
the
Travinto ·Nominees
case
was an industrial arbitration
section which expressly rendered void, unless
the
Industrial Commission had approved
of its terms, any
contract
under which a person leased or agreed to lease any
premises for the
purpose of hairdressing.
It
was conceded in argument
that the
legislation invalidated
the
lease,
but the
question arose whether the registration
under the Real Property Acts had validated the lease and to what extent. The ratio
is that registration of the lease did· not validate the covenants to renew the lease.
-- 27 of 40 --
28
The headnote· in
my
view is
not entirely accurate.
Barwick:
C.1
.,
with
whom
McTiernan
1.
agreed, discussed
the
notion
of
indefeasibility as follows: (p. 17)
"Though as a
term
'indefeasibility'
is convenient enough,
it
must
always
be
remembered
that it
is
the
title
to
and possession
of
the
land
or of
the
interest
in
the
land
of
which
there
is· a
registered proprietor
which
is
rendered
secure
by
the
registration.
In
the
case of
a leasehold
it
may be
and
frequently
is
the
case
that
the extent
of
the
leasehold
interest
is
not merely
described by
reference to
a
term
of years
but
must of
necessity
be
determined
by
reference
to the
operation
and
effect
of those
terms
and conditions
of the
lease
which
affect
or
qualify
the interest
in
the
land which
the
lease purports
to create.
It
may be
noted
that
the
Real
Property
Act
recognises
that
there
may
be
.
terms'
and conditions in
the
memorandum
of
lease,
see
the
Real
Property
Acts.
53(3). These considerations
seem
to me to result
in
the
conclusion
that
registration of
the
memorandum
of
lease
does
not
ensure
the
validity
of every
term
and condition
of
the
lease
or
indeed
of
the
enforceability
of every covenant
it
contains."
Menzies
1.
said
(pp. 29-30):
"Here,' because of
the effect
of
s. 88B
of
the
Industrial Arbitration
Act, the tenant
was
not entitled to register the
memorandum
of
lease
as
there
was no
lease.
If a person becomes
registered
in such
circumstances,
the
Registrar-General can cancel
the
registration:
s.
l36, Real Property
Act.
The registration
did not, in my opinion,
validate an option in a lease given
contrary
to
a
statute.
Accordingly,
I do
not
find
'it necessary to
consider the· observations contained in
the
New Zealand cases
cited
as
to
whether registration under
the
provisions
of the Real Property Ac.t
creates
indefeasible rights in
respect of each
and every covenant of the
lease which is registered."
Contrary to what
the
headnote suggests, Menzies
1.
confined his
agreement
with Gibbs
1.
's opinion
to the
question of estoppel. Gibbs
1.
said
(at
pp. 33-35)
that
there
could
be
no doubt
that the Real Property Act
had
the effect that
"upon
the
registration of a lease the lessee obtains a
title to the estate or interest specified in
the lease notwithstanding
that apart from registration the lease would be void and
ineffective" and
that "that title
is immune from attack". However His Honour went
ori to hold
that the Industrial Arbitration
Act
was passed subsequent to the Real
Property
Act
and that effect must therefore be given to its provisions
notwithstanding any contrary provision in the Real Property Act. His Honour
0
0
0
0
-- 28 of 40 --
-
---
----
---~--
---.........
29
concluded
that
the
later
enactment
contained
"clear
language
from
which
it
is plain
that
its
provisions
were
intended
to
apply
to
land
under
the Act
and
to
apply in a
manner inconsistent with
the
Real Property
Act".
His Honour considered
that
"the
provisions
of s.
880
on
their
proper interpretation
operate to
avoid a lease,
to
which
they
apply,
whether or not
the
lease
is
registered
under
the
Real
Property Act''. His
Honour distinguished Breskvar v. Wall (1972) 126 C.L.R. 376, observing
that
in
that
case
it
was held
that
the
two
statutes
(the
Real Property Acts
(Q) and
the
Stamp
Q Act) could
stand together.
It
is
not
necessary
to
pursue
the true
ratio of
Travinto
Nominees, as
it
is plain
that the
necessary exercise
is one
of
statutory
construction
Q and
an
analysis
of
the extent to
which the.
later
statute
makes
it
clear
that
the
indefeasibility provisions
of
the
Real Property Acts
are to be
disregarded.
The
Local Government
Act
(s. 34) is
certainly not
as
clear
as
the
Industrial
Arbitration
Act
provisions.
The transaction
is
not
expressly voided, although
there
is
a prohibition upon persons causing land
to be
subdivided
except
in accordance with
Q
the Act. That
is
not
necessarily inconsistent with a "substantial compliance"
construction. Again, although s. 34(17) impliedly prohibits
the
Registrar of Titles
Q from registering
certain
instruments,
there
is no express
statement
destroying
the
indefeasibility provisions in
the event
that
he does
register the
instruments. In
the
spectrum of statutory
provisions
that
prohibit
activity
and
state the
consequences
thereof, the
legislation might be thought to fall somewhere in
the
middle.
Mr Douglas placed reliance upon
the
decision of Davidson A.J. in Roseville
Extended Limited v. Lucas (1926) 26 S.R.N.S.W. 402. His Honour held
that the
Local
Government
Act of 1919 (N.S.W.) impliedly prohibited subdivisions without the
consent of the local Council and that successful registration of a subdivision into a
number of allotments under the Real Property Act did not result in valid
-- 29 of 40 --
30
Certificates of Title
being issued.
That
decision was
thought
by Mason
J.
(as
he then
. was)
not
to
have
survived
.Frazer
v. Walker (1967) 1 A.C. 569, in
the
New
South
Wales
Court of
Appeal .decision in
Travinto Limited
v.
Vlattas
(1972) 1 N.S.W.L.R.
24, 47. I
respectfully
agree,
and consider
that
Roseville Extended should
not be
followed,
particularly
in
the
light
of Moffitt
P's
analysis in Southerland Shire Council
v. Moir (1982) 49 L.G.R.A. :115, 116. -
"It
was decided by
Davidson
A.J
., as
he then
was, in Roseville Extended
·
Ltd
v. Lucas (1926) 26 S.R. (N.S.W.) 402
that,
where an
Act
prohibits
the
doing
of an
act,
which, in consequence
of it,
would
alter the
title
to
land (in
that
case,
as in
the
present case,
a subdivision without
following
the
procedures prescribed
by
the
Local Government Act),
the
registration
under
the
provision
of
the
Real
Property
Act
of the
change
in
the title
to
land is inoperative so
far
as
it
is
contrary to
the
prohibition. As Mason J .,
then
a judge
of
this
court
(in Travinto
Pty
Ltd
v.
Vlattas
[1972] 1 N.S.W.L.R. 24,
at
p. 47) pointed out, with
respect
correctly, this
decision was in
effect
overruled by
the
Privy
Council decision in
Frazer
v. Walker [1967] 1 A.C. 569. A good
title
will
arise
from
registration of it,
although
that title
was derived from
acts
or instruments which
were
void
or were rendered
so by another
Act
of Parliament."
I
turn then
to the
submissions
of
Mr Muir Q.C. for
the
plaintiff. I
reject
his
primary submission
that
s. 34(8)
of the
Local Government
Act
does
not
apply
to
notional subdivisions by lease. I
can see
sufficient reason for departing from
the
wide definition of "subdivision" in
the
particular context of
s. 34(17)
but there
is no
sufficient reason
to
deprive
the
definition of practical
effect
by failing
to
apply
it
to
any
part of
s. 34 which is
after
all
the
only section dealing directly with
the subject
of subdivision.
It
was submitted
that it
is a sufficient compliance with the requirements of
s. 34(8) if the local authority's approval is not on
the plan itself but is contained in a
document of which the plan forms part. Reference was made to Brisbane Unit
Development Corporation Pty Ltd v. Deming No. 456 Pty Ltd (No. 2) (1983) 2 Qd.R.
92, 96; 155 C.L.R. 129 where compliance within the body of a larger document was
.o
0
0
0
-- 30 of 40 --
..
31
held
sufficient
compliance with
a
statutory
requirement for
a
prescribed
statement
in
writing
to
contain
a
particular
detail.
It
was
further
submitted
that
substantial
compliance
is all
that
is
required, and
that
the
wording
of
s. 34 does
not demonstrate
an
intention
to
render
instruments
of
lease
which
may
bring about
a notional
subdivision void
or
unlawful.
There
are
strong
policy reasons
why
parties
to
a
lease
and persons who
might
subsequently deal with
the
subject
land
such
as
mortgagees
and assignees
ought
to be entitled
to
rely
on
the register
in
order
to
ascertain
their
Q rights.
He further submitted
that the
Real Property
Act
and
the
Local Government
Act can be read together
without necessitating
the
destruction of
indefeasibility
that
Q
the Real Property Acts
provide.
It
is
difficult
to
find in
the
Local Government
Act
any
clear
language
that
its
provisions
were intended
to
apply in a
manner inconsistent with
the
Real Property
Act,
although
the
illegality ·of
the
Registrar's actions
if they are
in
brea~h
of
s.
34( 17) could
be taken
as
destructive of further
consequence. There
is nothing
Q however in sub-s. (17),
or
elsewhere, which makes
it
plain
that the
indefeasibility
of
subsequent registered titles
is
to be
overridden.
Q The
final submission on
behalf of the
plaintiff
on
the
issue
of validity
of the
leases is
that
once registered,
the
lessee's
interest
obtains
the
benefits of
indefeasibility. Even a
registration
which results from a void instrument is
effective
once registration
is obtained (Breskvar v. Wall (1971) 126 C.L.R. 376, 385). The only
power in
the court to cancel an entry
in
the register
book is
that ins.
124, and those
circumstances do not apply here. In some circumstances the Travinto Nominees case
may require a registered interest to be disregarded, but
~hat
will depend upon the
terms of the legislation.
-- 31 of 40 --
32
The
question
then
is
whether
the
relevant
legislation,
of
which
some
breaches
have
been
established, is
such
as
to render
illegal and void
the
lease
from
Firewater
to
Ventel notwithstanding
its
registration
in
the
Titles Office. The breaches
in
question
are of
two
matters
ins.
34(8) and, possibly,
of
one
aspect
of
s. 34(17). They
are
breaches
of
requirements
which
are
devoid
of practical
consequence,
either
in
the
circumstances
of
the
particular
case,
or
even generally in
the context of
subdivisions by lease. No person would
be
better
off,
and
the
public would
not be
better
protected if they were
complied with. The
breaches
are
not
in
my view
of
substantial
matters
and
may
fairly
be
described as
trivial.
0
The
reference to
indefeasibility is a convenient description
of
the
immunity Q
from
attack
by adverse
claim to the interest
in
respect of
which a person is
registered (Frazer
v. Walker (1967) 1 A.C. 569, 580). Mention
may be made of
two
New South Wales decisions, although
they are
not sufficiently close
to
provide
direct
guidance. In Attorney-General (N.S.W.) ex
rel
Franklins
Stores
v. Lizelle (referred
to
earlier), on
the
assumption
that
there
was a
statutory requirement for
the
local
Council
to
consult with a planning authority before granting an interim development
application, Reynolds J .A. and Hutley J .A. considered
that
such a failure would
not
render
the
Council's consent invalid. In
that
case there
had been no compliance
whatever with such a requirement, and
it
was not possible
to
argue substantial
compliance. Their Honours were of the
view
that
despite non-compliance,
it
should
not be inferred
that the
Council's consents should be rendered invalid.
It
would seem
that matters of public convenience, and the perceived undesirability of encouraging
third parties, after assiduous search, to undo the validity of bona fide decisions on
which other persons might reasonably act, may have played some part in this
conclusion (see pp. 963-965, 969, 980). In McRae v. Coulton (1986) 7 N.S.W.L.R. 644,
0
0
-- 32 of 40 --
0
0
0
0
33
an
application
which
contrary
to the
requirements
of
a
statute
failed
to
give
particulars
and
failed
to
provide plans was held
to be
a
sufficient
compliance with
the
statutory
requirements,
and
that
invalidity did
not
follow
the
lack
of
strict
compliance.
The approach
of
Step
hen J.
i~
Victoria v.
The Commonwealth and Connor
(1975) 134 C.L.R. 81, 179 in
my
view has
more
direct
relevance
to the
present
case:
"A
directory construction
will
not assist
in securing validity unless,
despite
the
non-compliance which is
the
occasion for
invoking
that
construction,
there
may nevertheless
be seen
to be
substantial
compliance with
the
general object
at
which
the statutory
provision
aims.
Sometimes
the
stipulation
which has
not
been complied with is,
in
its context,
so
relatively unimportant
to the attainment
of
that
general
object
that,
although
there
has
been
total
non-compliance, a
directory construction may
be
appropriate. In such
cases
it
may not
matter that the
non-compliance is
complete, not partial.
Indeed
the
stipulation
in question may
be
of
a kind which is incapable
of partial
compliance;
to
give
to
such a
stipulation
· a
directory interpretationrecognises
that
it
may be
wholly disregarded without prejudice
to
validity because of its relative
unimportance in
the attainment
of
the
general
statutory
object
and also, perhaps, because of
the
far-reachingand undesirable consequences
of
treating its
non-observance as
invalidatory."
In
the present case there
has been substantial compliance with
the
perceived
general object of
s. 34
of the
Local Government
Act,
which is essentially
the
fair
consideration by local authorities of subdivisions and
the
ensuring
of proper
identification of the
areas
subdivided. In my view
there
has been substantial
compliance with
the section's requirements, and
the
points of
non-compliance do not
lead
to the result
that the
whole exercise was a nullity.
If
the above conclusion is wrong, and
if the lease was, prior to its registration,
a void instrument, "the enquiry must be whether the later Act
avoids the registered
interest, not merely some document or transaction from which the title to the
registered interest derives" (per Connolly
j.
in Rockhampton Permanent Building
Society v. Peterson No. 2 (1989) 1 Qd.R. 670). In the present case the lease was
-- 33 of 40 --
34
already
registered before
the
defendant
acquired any
interest
in
the
land, and
he
took with
full
notice of
the
plaintiff's
registered interest.··
It
may not be unrealistic
to
infer
that
the
purchase
price
was significantly
reduced
by
the
existence
of
that
registered interest.
It
is
not
lightly
to
be
inferred
that
the
legislature intends
consequences
to the
effect that
trivial
omissions in
the
performance of
a
statutory
scheme
will
destroy
future
dealings in
the
scheme
of
statutory
title
under
the
Real
Property Acts.
I would distinguish
the
legislation
from
that
considered in
the
Travinto Nominees
case
and hold
that
the
interest
obtained by
the
plaintiff under
the
Q
Real Property Acts
has
not been
voided by any non-compliance by
the
Council
or the
plaintiff
under
the
Local Government
Act.
Although
not
all
terms or
covenants
of
a 0
lease
are
necessarily validated by registration,
the
grant
which
creates
or
qualifies
the
estate
or interest
is
preserved
(compare P.T. Limited v. Maradona
Pty
Ltd
(1991) 25 N.S.W.L.R. 643) unless
some other
statute
requires a
contrary
conclusion.
If I am wrong on
practically every point above,
the
plaintiff's fall-back
position seems to be
as follows.
The defendant derives his
title.
from
Firewater,
0
having purchased
the
reversion
after
registration of
the
leases in question.
Let
it
be
assumed
that
the
leases
are
prohibited conditionally,
that
is
to
say
the
subdivisions Q
cannot be regarded as having occurred unless and until
the
provisions of s. 34(8) have
been
strictly
complied with;
that the
substantial compliance is insufficient; and
that
no valid consent
yet
exists for
the
subdivision. Even on
these
assumptions,
the
plaintiff should still have
the
opportunity of obtaining
the
necessary consent and of
fulfilling
the necessary requirements. The defendant, who took his interest in
the
land with· knowledge of this conditional grant by his predecessor could not be heard
to object to such ari ·opportunity being afforded the plaintiff to perfect the grant
(~f.
Misiaris
~.
A.F.C. Holdings Pty Ltd (1988) 15 N.S.W.L.R. 231, 232, 234, 236), and
-- 34 of 40 --
35
should
be
obliged
to
provide such co-operation
as
rr:iay
be
necessary
to
enable
the
grant
to
be perfected
(cf. Gaye (No.
1)
Pty Ltd
v. Allan Rowlands Holdings
Pty
Ltd
H.C.
30th June,
1993, (1993) 13 Leg.Rep. 10).
I
need not
pursue this
prospect further,
as I consider
that
the
registered lease
is valid.
The plaintiff
also submits
that
the
plaintiff
is estopped from contending
that
the
lease
is invalid
because
the
defendant
from an
early
stage
asserted
his position
oi
as lessor and
represented
that
the
plaintiff
should
remedy
the
alleged'
breach
by
taking all
necessary
steps to
rezone. Benmar
infact spent
considerable
time
and
Q money in
attempting
to
do so. As
early
as 27th December, 1990 solicitors had
stated
their client's
intention
to
require
strict
compliance. The defendant, also
at
a fairly
early
stage
orally suggested
to
one of
the
plaintiff's directors
that the
leases were
"invalid" arid
it
is
submitted
on behalf of
the
defendant
that
he thereby kept
his
options open and
that
the
plaintiff cannot rely
upon
the
assertions
of
.
breach
as
Q founding an estoppel.
The
matter
is
quite
arguable,
but
it
is enough
at
this
stage
for
me to indicate
that
were
I
of
the
view
that the
lease is invalid and
that
it
does
not
Q bind
the parties,
I would
not regard
that
the
defendant has estopped from clain:iing in
court
that it
is invalid and seeking a determination accordingly.
Termination
of the
leases
By cl. 3.12
of the
lease,
the lessee was obliged
to
observe all
the requirements
of statutes, regulations, ordinances and by-laws so far as they applied
to the demised
premises or to the installation and maintenance of the
sign and advertising thereon.
Under the Town Planning Scheme for the Shire of Albert (pursuant to Order in
Council of 17th March, 1988) an advertising sign is a "structure", the use of any
structure on land is "development", and the purposes for which development may be
-- 35 of 40 --
36
carried out
·are specified
in a
table of
zones
pursuant
to
cl. 5 in division 1
of
part
2
of
the
scheme.
Under cl. 7(2) no person may
erect
or use any
structure
in
any
zone
for a purpose
set
forth
in column 5 applicable
to
that
zone.
The
zoning
at
material
times
has
been
"special
facilities
(ski lake,
roller skating
and
associated
administration, club
facilities,
restaurant
and
take
away food outlets)".
The
advertising in question was
not
ancillary
to
that
use, and
it
would
seem
that
at
material times
the
zoning was
not
appropriate for
the
use
in question. Accordingly,
the
defendant
was
correct
when
he
alleged
the
existence
of
the
breach. 0
In
order
to be
able
to forfeit the
term,
compliance with
s. 124
of
the
Property
Law
Act
was necessary. Although
the
lease provides
for
a
right of
re-entry,
the
0
statute
affords a locus
poenitentiae
to
lessees, and
the
right
to re-enter
is postponed
to
the
giving
of
the
notice
(Holden v. Blaiklock (1974) 2 N.S.W.L.R. 262). Under
s. 124(l)(b),
if the
breach
is
capable of
remedy,
the
notice must require
the
lessee to
remedy it.
If
the
lessee fails within a reasonable
time thereafter to
remedy the
breach,
the
lessor's
right of re-entry
under
the
lease will
become enforceable. 0
The breach
was plainly one capable of being remedied, although
the
remedy
was obviously
not
inevitably achievable. The expression
of
opinion on behalf of the
Q
defendant, in
the
accompanying
letter, that three
months was sufficient
to
remedy
the matter
was in my view quite unrealistic. The difficulty
of
remedying
the breach
was aggravated by
the obstructive tactics with which
the defendant persisted.
It
was submitted on behalf of the defendant
that the plaintiff let three
months elapse
before _even commencing a fresh application for rezoning.
It
is difficult to see
why
the plaintiff should have needed to bring. a fresh application
at
all when he already
had a pending application for an appropriate zoning, which was held up, as
it
seems
to me, by legal action and .other activity promoted by the defendant. Furthermore,
-- 36 of 40 --
---------------~-·-~-~-~·--~--
37
the alternative
solution proposed
by
the
Town Clerk, which
eventually eliminated
the
problem,
had already been
proposed in January, 1992
..
The
demand
for
possession,
served
on
20th
March, 1992 was
premature,
as
the
plaintiff
could
not
at
that
stage be
said
to
have failed within a reasonable
time after
the receipt of
the
s.
124
notice,
to
have remedied
the
breach.
Indeed,
the
achievement
of
the
amendment
of
the
town plan by
the
inclusion
of
cl. 7A
therein,
finally
gazetted
on
29th January,
1993 (13 months
after the
receipt
of
the
s. 124
Q notice) in
my
view amounts
to
a remedying of
the
breach
within a reasonable
time.
It
eliminated
the
problem.
0 The purported termination of the
leases on 20th March, 1992 was
therefore
ineffective.
This is
the
only
termination
which has
been relied
upon for
the
purposes
of
the
action.
It
follows
that
the· balance of
the term of
the
lease
has
not been
effectively
forfeited
and
that
no
effective re-entry
has occurred.
0
It
becomes unnecessary
to
consider
further arguments advanced on behalf of
the plaintiff
including - (a)
the
defendant himself breached cl. 3.08 by obstructing
Q the plaintiff's attempts to
remedy
the
breach, and
he
is precluded thereby from
relying upon any failure on
the part
of the
plaintiff; and (b)
the
s. 124 notice was
served by
the defendant when
Firewater
was
still
the
owner of the
properties,
the
defendant was not "the
lessor" within
the
meaning
of s. 124, and he was not entitled
to
issue
the
notice.
Without expressing a concluded view on
the latter
point for which no
authority was advanced, I incline to the view
that the defendant was an "assign"
within the meaning of the definition of "lessor" in the Property Law Act. As the
purchaser under an executory contract, he had an equitable interest, and the title
-- 37 of 40 --
•'
38
was subsequently
made
good by completion
of
the
contract.
It
is however
unnecessary
to
decide
these
issues.
Relief against
forfeiture
In view
of my primary
findings,
there
is no valid
forfeiture against
which
the
plaintiff
needs any
relief.
However because
the
issue
featured
so largely in
the
litigation I shall express
my
view on
the
assumption
that
the
leases
were
validly
determined on
20th
March, 1992 by reason
of
a subsisting
breach
which
the
plaintiff
had failed
to
remedy
within a reasonable time.
0
A wide
discretion
is
entrusted to the court
in such an exercise (Property
Law
Acts.
124(2)); Shiloh Spinners
Ltd
v. Harding (1973) A.C. 691; Jam
Factory
Pty
Ltd
0
v. Sunny
Paradise
Pty
Ltd
(1989) V.R. 584).
The main
factors
that
emerge
in
the present case are the
following.
The
breach has been successfully remedied and
it
would
seem
that
there
is no
prospect of
its recurrence.
It
was
not
a breach which was of any
particular concern
to
the
local
0
authority which regarded its
own licensing
system
as an adequate control measure in
relation
to the
advertising activities of
the
plaintiff. On
the other
hand
it
was, on
analysis, a breach of the
town planning provisions, and this could have led
to
activity
orf
the part of the
Council prejudicial
to the
owner as well as
to the actual user.
However
the essential point is
that there
was a breach but
it
is over and done with.
It
was not a cynical breach, being
the
product of ignorance on
the part of the
plaintiff and
the Albert Shire Council alike. In
the event
it
has done no harm to the
defendant other than the incurring of expenses which may be thought to be largely
self-inflicted.
In short, the plaintiff's default was not wilful; the breach did not in the event
damage the position of either party; and there is a great disparity, at least from the
-- 38 of 40 --
39
plaintiff's point
of
view between
the
value
of
the
interest of
which
forfeiture
is
claimed
(a 99
year lease
with
97
years
to
run) and
the
damage caused by
the
breach
(which is negligible).
From
the
defendant's point of
view,
the
low
rental
($1
per
annum) is no
doubt
a
factor
which increases his
desire
to terminate it, but the
gain
to
him
(forfeiture
of
the
remaining
term
of
97 years)
bears
a
similar disparity
to
damage caused by
the
breach.
Other
submissions
were
advanced, two
of them
by
the
insertion
of
paras.
B(s)
0 and 8(t) in
the
defence
and counterclaim. The
first of these
alleges
that
the
face of
the
trivision sign on
.lot
2 is 12.34m by 3.44m,
contrary
to the
description of
the
0 lessee's
sign in
the
lease
which is 10.5m
by
4m. This is
said
to be relevant to relief
·
against
forfeiture
as
it
demonstrates
the
existence of another breach
which
it
is
submitted
is
irremediable without
the
substantial destruction
of
the
signs
themselves. The answer
to the
submission is
to be
found in cl. 3.11
of the
lease
which
relevantly
provides:
Q "Alterations
to
sign
Provided
the
lessee
is authorised
to
do so under any
current
...
permit
or registration
the
lessee may
... replace, ... enlarge, ... and install a
n substitute
sign
or
otherwise deal with
the
lessee's sign whether
'~·
·
structurally or otherwise ..."
The alterations have always been with
the
consent of the
Council, and
are permitted
by
the
lease. There
is no
merit
in this particular
submission.
The allegation in para. 8(t) was
that
one of the
signs encroached over the
main road area. However the evidence failed to support
that
allegation.
The present case
is a plain one in which I would be disposed to relieve the
lessee from the consequences of forfeiture if the lessor were otherwise .entitled to
effect a forfeiture.
-- 39 of 40 --
'I
"'\..
40
Other matters
The defence and counterclaim also alleges that cl. 8.09 of the lease is invalid
and not binding upon the defendant. This does not appear to have remained a live
issue, and despite my adversion to it, and Mr Douglas's seeking of instructions upon
it, no submissions were made in support of it. The covenant in question seems
designed to protect the rights of the lessee to use his signs as contemplated by the
lease, and I can see no basis for the claim in question.
I shall hear submissions as to the appropriate form of order. Prima facie the Q
counterclaim should be dismissed and a declaration should be made in terms of
para. (b) of the relief clause in the statement of claim. I shall hear submissions as to Q
whether any injunctions or further declarations are necessary.
0
()
-- 40 of 40 --
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