Ashmore Developments Pty Ltd v Eaton [1991] QSCFC 34 [1992] 2 Qd R 1

ft. Revised copies .iGSUEr* [ 1 Court Reporting Bureau 'j IN THE SUPREME COURT OF QUEENSLAND;: ; j Date, 2 0 HAY 19Q f j FULL COURT Appeal No. 62 of 199 0 BEFORE 'The Chief Justice (Mr Justice Macrossan) Mr Justice Ryan Mr Justice Byrne BRISBANE, 26 APRIL 1991 ■, (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: 20 ASHMORE DEVELOPMENTS PTY.LTD. Respondent (Plaintiff) -and- PETER STANAGE EATON, CLAIRE ANNE EATON and PETER JAMES 0' GRADY (First Defendants). Appellants -and- PETER CHARLES HUXTABLE and NICHOLAS PHILLIP ANDERSON (Second Defendants) Appellants JUDGMENT 40 THE CHIEF JUSTICE: In my opinion the appeal should be .allowed and judgment below should be set aside, and in lieu thereof it should be ordered that judgment be entered for the first and second named first defendants dismissing the plaintiff's claim with costs to be taxed. It should further be ordered that the plaintiff pay to the first and second named first defendants the costs of this appeal to be taxed. I publish my reasons. 50 60 Printer, Qld. l [1991] QSCFC 34 -- 1 of 27 -- 10 20 30 40 50 60 MR JUSTICE RYAN: I agree with the order proposed by the Chief Justice and I publish my reasons. MR JUSTICE BYRNE: I would dismiss the appeal. I publish my reasons. THE CHIEF JUSTICE: The order of the Court will then be the appeal will be allowed in the terms that I indicated. 10 20 ( 30 40 50 60 'lOvt. Printer, Qld. -- 2 of 27 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT APPEAL NO 62 OF 1990 BETWEEN : ASHMORE DEVELOPMENTS PTY . LTD ______ Plaintiff ( Respondent ) AND : PETER STANAGE EATON, CLAIRE ANNE EATON AND PETER JAMES 01 GRADY First Defendants (Appellants) AND : PETER CHARLES HUXTABLE AND NICHOLAS PHILLIP ANDERSON Second Defendants (Appellants) THE CHIEF JUSTICE RYAN J BYRNE J Reasons for judgment delivered by The Chief Justice, Ryan J and Byrne J on 26th April, 1991 . Byrne J dissenting. "APPEAL ALLOWED, JUDGMENT BELOW SET ASIDE AND IN LIEU THEREOF ORDER THAT THERE BE JUDGMENT ENTERED FOR THE FIRST AND SECOND NAMED FIRST DEFENDANTS DISMISSING THE PLAINTIFF ' S CLAIM WITH COSTS TO BE TAXED. FURTHER ORDER THAT THE PLAINTIFF/RESPONDENT PAY TO THE FIRST AND SECOND NAMED FIRST DEFENDANTS THE COSTS OF THE APPEAL TO BE TAXED." -- 3 of 27 -- IN THE SUPREME COURT OF QUEENSLAND Appeal No, 62 of 1990 Before the Full Court The Chief Justice Mr. Justice Ryan Mr. Justice Byrne BETWEEN ASHMORE DEVELOPMENTS PTY. LTD, ( Plaintiff) Respondent -and- PETER STANAGE EATON. CLAIRE ANNE EATON and PETER JAMES O'GRADY (First Defendants) Appellants -and- PETER CHARLES HUXTABLE and NICHOLAS PHILLIP ANDERSON (Second Defendants) Appellants JUDGMENT - THE CHIEF JUSTICE Delivered the twenty-sixth day of April, 1991. CATCHWORDS : Counsel: R.M. Bourke for appellant M. Amerena for respondent Solicitors: Primrose, Couper, Cronin & Rudkin for appellants Worcester & Co. for respondent Hearing dates: 8 February, 1991 -- 4 of 27 -- IN THE SUPREME COURT OF QUEENSLAND Appeal No. 62 of 1990 BETWEEN ASHMORE DEVELOPMENTS PTY . LTD. ( Plaintiff) Respondent -and- PETER STANAGE EATON. CLAIRE ANNE EATON and PETER JAMES O'GRADY (First Defendants) Appellants -and- PETER CHARLES HUXTABLE and NICHOLAS PHILLIP ANDERSON (Second Defendants) Appellants JUDGMENT - THE CHIEF JUSTICE Delivered the twenty-sixth day of April, 1991. A narrow point was argued on this appeal. It had been accepted below that the effect of s. 117 of the Property Law Act 1974-1986 in the present case was that the plaintiff, after it had assigned its lessor's interest, ceased to be entitled to sue for arrears of rent, those persons who, up till then, had been its tenants. The material shows that the plaintiff, as registered proprietor, had leased the land in question to the defendants' predecessor in 1982 and thereafter remained owner until a contract to sell the land, entered into by the plaintiff in 1987, was settled on 26 February, 1988. For the purposes of the proceedings and to the extent that it had significance it can be taken that the plaintiff's purchaser became registered as owner on or.shortly after settlement. -- 5 of 27 -- 2 The defendants had become lessees in February, 1986 under an assignment from intermediate assignees of the original 1982 lessee. The arrears of rent which are the subject of the action had accumulated over the period between April, 1987 and the date of settlement of the plaintiff's sale in February, 1988. , On first turning to consider the effect of the words of s . 117 of the Act the text of which has been set out in the reasons of Ryan and Byrne JJ., it might be thought that there is some element of ambiguity to be found there. Are obligations, which have fully matured in the past covered by the section so that an accrued right in the reversioner to recover arrears of rent is lost once the reversionary estate is assigned? One view, which on the face of the section could at least be considered open, is that liability for arrears of rent may remain at the suit of the reversioner even after he assigns his interest. This is the kind of view of the relationship between the parties to a lease which commended itself to the Court in Flight v. Bentlev (1835) 7 Lim 149 when it had to consider the position at an earlier time unaffected by the enactment of the equivalent of s. 117 in England. Section 117 certainly covers the right of the assignee of the reversion to receive current rent and the right to rely on continuing breaches of covenant, but what beyond that does it affect? I consider that, as indicated by Upjohn and Diplock L.JJ. in In Re King (1963) Ch.459 and by the Court in the subsequent authorities London and County (A. & D. ) Ltd, v. Wilfred -- 6 of 27 -- 3 ( \ O' Sportsman Ltd. (1971) Ch. 764 and Arlesford Trading Co. Ltd, v. Servansingh (1971) 1 W.L.R. 1080, the section should be accepted as making a fully adequate statutory prescription in the area regardless of the earlier historical situation and that, when examined, the effect of the statute should be regarded as sufficiently clear. After the owner of a reversion assigns his right he should be regarded as no longer entitled to sue his erstwhile tenant for arrears of rent. This is why it was accepted below, and before us, that the effect of the section, if nothing more appeared, would deny the plaintiff the right to recover against the defendants. It was said however that cl. 14 of the contract entered into between the plaintiff and the purchaser from it of the freehold had the effect of removing the limitation on the plaintiff's right to recover which would otherwise apply. The words of cl . 14 have been set out in the reasons of Byrne J. I am unable to agree that those words had the effect contended for by the plaintiff and found in the plaintiff's favour by the judge below. It should be accepted that cl. 14 was designed simply to adjust the rights and fix the entitlements, inter se, of the vendor and purchaser of the reversion as an understandable adjunct to the fixation of the purchase price. The amount of the consideration agreed could not be regarded as unrelated to the agreement for the apportionment of the value of outstanding liabilities, entitlements and benefits accruing. -- 7 of 27 -- 4 The result of the clause is that if either the vendor or the purchaser should receive outstanding rent from the lessee which fell to be distributed in accordance with the provisions of the clause, then either the vendor or the purchaser might be liable to account to the other. This does not mean that the vendor, by virtue of the clause, was after assignment of the reversion, given a new right to sue the lessees in its own name for arrears of rent and so hold responsible those who were strangers to the agreement which contained the clause in question. I do not discern that the words of cl. 14 were even intended to achieve, let alone capable of achieving that result. No notice effective to transform the position of the plaintiff and strengthen it beyond its statutory condition was given to the lessees. For present purposes the plaintiff's position in relation to entitlement to recover past rent could be no more than that of equitable assignee. The learned judge below, in founding his decision upon the pronouncement of Upjohn L.J. in In Re King (supra) failed to observe the significance of the concluding portion of his Lordship's observation where he said - "The assignor can still sue, if necessary, in the name of the assignee." Here the assignee was not joined as a party and yet the relevant issue must be taken to have been fully alive, because the defendants were clearly relying upon the effect of s. 117 of the Act and the transfer by the plaintiff to its assignee as matters which defeated the plaintiff's right to sue for the arrears. The situation was far from being one where a right -- 8 of 27 -- 5 to rely upon the statutorily conferred immunity at the suit of the plaintiff was let go by default. The effect of the new liability of the lessees to the plaintiff's assignee did not receive emphasis and the plaintiff did not undertake to prove that the arrears in question had not been paid in whole or in part to that assignee. No question in the present appeal turns upon matters of quantum and the conclusion so far expressed means that no further investigation in that respect is called for. The claim itself fails. The appeal should be allowed. I agree with the orders proposed by Ryan J. / )u -- 9 of 27 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT C.A. No. 62 of 1990 Before the Full Court The Chief Justice Mr. Justice Ryan Mr. Justice Byrne BETWEEN : ASHMORE DEVELOPMENTS PTY LTD (Plaintiff) Respondent AND : PETER STANAGE EATON. CLAIRE ANNE EATON and PETER JAMES O'GRADY (First Defendants) Appellants AND : PETER CHARLES HUXTABLE and NICHOLAS PHILLIP ANDERSON (Second Defendants) Appellants JUDGMENT - RYAN J. Delivered the Twenty-sixth day of April, 1991. Counsel : Mr. Bourke for the Appellants Mr. Amerena for the Respondent Solicitors: Thynne & Macartney T/A for Primrose Couper Cronin Rudkin the Appellants Worcester & Co. for the Respondent Hearing date: 8 February 1991 -- 10 of 27 -- IN THE SUPREME COURT OF QUEENSLAND C.A. No. 62 of 1990 BETWEEN ; ASHMORE DEVELOPMENTS PTY LTD (Plaintiff) Respondent AND : PETER STANAGE EATON. CLAIRE ANNE EATON and PETER JAMES O'GRADY (First Defendants) Appellants AND : PETER CHARLES HUXTABLE and NICHOLAS PHILLIP ANDERSON (Second Defendants) Appellants JUDGMENT - RYAN J. Delivered the Twenty-sixth day of April, 1991. This is an appeal from a judgment of a Judge of District Courts by which he ordered that judgment be entered against the first and second-named first defendants for the sum of $46,626.97 together with interest thereon and costs. The plaintiff, Ashmore Developments Pty Ltd issued a writ of summons in May 1988 claiming $49,969.41 against the first defendants for moneys, namely, arrears of rental and outgoings for the period 1 April 1987 to 26 February 1988 owing to the plaintiff pursuant to an agreement for lease between the plaintiff as lessor and the first defendants as lessees; and against the second defendants as sureties for that sum on a guarantee in writing by each of them addressed to the plaintiff. Only the first and second named first defendants were served. The plaintiff was the registered proprietor of an estate in fee simple of land situated in Surfers Paradise. On 1 April -- 11 of 27 -- 2 1982, the plaintiff leased a part of a building erected on the land to Axlong Pty. Ltd. for a period of three years terminating on 1 April 1984 at an annual rental of $48,636.00 payable calendar monthly in advance by payments of $4,053.00. On 19 November 1984, Axlong Pty Ltd with the consent of the plaintiff assigned by deed all of its right, title and interest to and in the lease to A C and K E Robertson. The Robertsons duly exercised the option for renewal of the lease provided for in the original lease. In February 1986, the Robertsons, with the consent of the plaintiff, duly assigned all their right, title and interest to and in the lease to the first defendants. On 1 November 1987, a contract of sale was executed by Ashmore Developments Pty Ltd of the land to certain purchasers. The date for completion was 26 February 1988. Clause 14 of the contract of sale is in these terms: The rents and profits of the property hereby sold shall belong to the vendor up to and including the date of possession and thereafter to the purchaser and shall be dealt with as follows - (a) all unpaid debts and profits in respect of any period terminating on or prior to the date of possession shall not be apportioned between the parties on completion but shall be receivable by the vendor who shall have the right to recover payment thereof; (b) all rents and profits paid in advance of the date of possession shall be apportioned between the parties on completion; -- 12 of 27 -- 3 (c) all rents and profits payable in respect of any period current at the date of possession which shall not be paid at the date of completion shall be apportioned when received by either party. By the defence, the defendants alleged that on or about 28 February 1988 the plaintiff ceased to be the registered proprietor of the relevant land. They then alleged: "In the premises, by reason of the provisions of s . 117 of the Property Law Act , the plaintiff is not and was not at the date of commencement of these proceedings entitled to maintain them as against the first and secondnamed first defendants in respect of arrears of rental and outgoings for the period referred to in the Statement of Claim." Section 117 of the Property Law Act 1974-1986 provides, so far as is relevant: (1) Rent reserved by a lease, and the benefit of every covenant, obligation or provision therein contained, touching and concerning the land, and on the lessee's part to be observed or performed, and every condition of re-entry and other condition therein contained, shall be annexed and incident to and shall go with the reversionary estate in the land, or in any part thereof, immediately expectant on the term created by the lease, notwithstanding severance of that reversionary estate, and without prejudice to any liability affecting a covenantor or his estate. (2) Any such rent, covenant, obligation, or provision shall be capable of being recovered, received, enforced, and taken advantage of, by the person from time to time entitled, -- 13 of 27 -- 4 subject to the term, to the income of the whole or any part, as the case may require, of the land leased. (3) Where that person becomes entitled by conveyance or otherwise, such rent, covenant, obligation or provision may be recovered, received, enforced or taken advantage of by him notwithstanding that he becomes so entitled after the condition of re-entry or forfeiture has become enforceable, but this subsection does not render enforceable any condition of re-entry or other condition waived or released before such person becomes entitled as aforesaid. This section is in the same terms as s 141 of the Law of Property Act 1925 (UK). In Flight v. Bentlev (1835) 7 Lim 149, it was decided that the assignee of a reversion was not entitled to arrears of rent which became due prior to the assignment. Accordingly, a purchaser of the reversion whose conveyance was executed in July 1832 could not sue for the previous June quarter's rent, but only the vendor, the reason given being that that rent had been severed from the reversion and was a mere chose in action. That decision was referred to by Lord Denning M.R. in In re King deceased [1963] Ch 459. In an examination of the historical background to s 141 of the Law of Property Act 1925. he pointed out that prior to 1540, when a lessor assigned his reversion to a purchaser, the assignee did not get the benefit of any of the express covenants in the lease, and could not even sue for breaches that occurred after he bought the premises, because he was a stranger to the covenant between the lessor and the lessee. Privity of estate gave the assignee the right to sue the lessee -- 14 of 27 -- 5 in debt for rent that occurred in his own time, but no right to sue on the express covenants. By an Act 32 Henry 8C34, assignees of the reversion were given the same advantages, benefits and remedies as the heir. The heir could sue for rent falling due in his own time, but failure to pay rent during the assignor's time was a breach which caused damage to the assignor exclusively. Accordingly, as Flight v Bentlev decided, the assignor alone could sue for it and not the assignee. His Lordship thought that s. 141 of the Law of Property Act 1925 had not changed the previous law, and Flight v Bentlev was still good law. A different view was expressed by Upjohn LJ and Diplock LJ Upjohn LJ stated his opinion as being that Flight v Bentlev was not very satisfactory, and said that the reasoning in that case that rent which issued out of the land became severed after it had become due did not apply to a covenant. Diplock LJ did not refer to Flight v Bentlev . but he expressed the view that the effect of s 141 was that after the assignment of the reversion to a lease, the assignee alone is entitled to sue the tenant for breaches of covenants contained in the lease whether such breaches occurred before or after the date of the assignment of the reversion. The issue in In re King was whether s 141 conferred upon an assignee of the reversion the right to damages for breach of a covenant to rebuild a factory, where the covenant had already been breached by the lessee before the assignment. It was held that it did. That case was not concerned with the applicability of s 141 to the question of rent in arrear at the date of the -- 15 of 27 -- 6 assignment of the reversion. That issue did arise however in London & Countv Ltd v W Sportsman Ltd [1971] 1 Ch 764, when it was decided that Flight v Bentlev was not now the law. Russell LJ with whom other members of the Court agreed said that the language of s 141 was such as to indicate plainly that an assignee of the reversion may sue and re-enter for rent in arrears at the date of the assignment when the right of re-entry had arisen before the assignment. The position is therefore that an assignee of the reversion acquires the right to sue for breaches of covenant committed before the assignment, and the assignor loses that right. That was recognised by His Honour, but he considered that by virtue of Clause 14(a) of the contract of sale the plaintiff was entitled to recover against the first defendants. He referred to a passage in Halsbury, 4th ed, Vol 27 para. 403 where it is stated: - "After an assignment of the reversion it is accordingly the assignee who alone may sue for rent and for breaches of covenant whenever they have occurred, at any rate unless the assignee and the assignor have agreed to the contrary." In support of that statement, reference was made to a passage in the judgment of Upjohn LJ in In re Kina at p 488, where it is said: "The assignor has by the operation of s. 141 assigned his right to the benefit of the covenant and so has lost his remedy against the lessee. Of course, the assignor and assignee can always agree that the benefit of the covenant shall not pass in which case the assignor can still sue, if necessary, in the name of the assignee." Though His Honour purported to apply the principle stated by Upjohn LJ, he overlooked the significance of the words which -- 16 of 27 -- 7 made it necessary for the assignor to sue in the name of the assignee. That was not done in this case though the defence had raised specifically the issue of the entitlement of the plaintiff to maintain the proceedings. In my opinion the failure was fatal to the assignor's right to bring the action. The agreement between the assignor and assignee in clause 14 of the contract of sale was one which bound them, but which did not affect the lessee. The lessee was obliged by s 141 to pay the rent to the assignee. The assignee agreed with the assignor that the rent up to the date of possession would belong to the assignor. The result of this arrangement was to effect an equitable assignment of the debt from the assignee (who became the assignor of the debt) to the assignor (who became the assignee of the debt). There is nothing to show that notice of the assignment from the purchaser to the vendor of the rents was given to the lessee prior to the bringing of the action. The position is therefore as it was stated by Atkinson J. in Holt v Heatherfield Trust Ltd [1942] 2 KB 1 at p 41:- "Until notice be given the assignment is an equitable ( assignment, but it is an assignment which requires ( ) nothing more from the assignor to become a legal assignment. The assignee may himself give notice at any time before action brought, and further than that, even before notice, he may sue in his own name provided that he makes the assignor a party to the action, as plaintiff if he consents, and as defendant if he does not consent. This is made quite clear in Performing Right Society Ltd, v. London Theatre of Varieties Ltd. [1924] A.C. 1, where Viscount Cave L.C. said (at p. 14): 'No action can now be defeated by reason of the misjoinder or non-joinder of any party; but this does not mean that judgment can be obtained in the absence of a necessary party to the action, and the rule is satisfied by allowing parties to be added at any stage of a case.'" -- 17 of 27 -- 8 In this case, as in Performing Rights Society Ltd v London Theatre of Varieties , the plaintiff has taken its stand upon a supposed right to sue alone. In the circumstances, I consider that non-joinder of the purchaser of the reversion was fatal. Accordingly I would allow the appeal, set aside the judgment below and in lieu thereof order that judgment be entered for the first and second-named first defendants dismissing the plaintiff's claim with costs to be taxed. I would further order that the plaintiff pay to the first and second-named first defendants the cost of this appeal to taxed. -- 18 of 27 -- IN THE SUPREME COURT OF QUEENSLAND C.A. No. 62 of 1990 Before the Full Court The Chief Justice Mr Justice Ryan Mr Justice Byrne BETWEEN : ASHMORE DEVELOPMENTS PTY LTD (Plaintiff) Respondent AND : PETER STANAGE EATON. CLAIRE ANNE EATON and PETER JAMES O'GRADY (First Defendants) Appellants AND : PETER CHARLES HUXTABLE and NICHOLAS PHILLIP ANDERSON (Second Defendants) Appellants JUDGMENT - BYRNE J. Delivered the 26th day of April, 1991 CATCHWORDS : Landlord and tenant - action to recover arrears of rent by assignor of the reversion - whether s. 117 of the Property Law Act 1974-1989 debars claim - effect of cl. 14 of 1982 REIQ contract. Counsel: R.M. Bourke for the Appellants M.P. Amerena for the Respondent Solicitors : Thynne & Macartney T/A for Primrose Couper Cronin Rudkin for the Appellants Worcester & Co for the Respondent Hearing date: 8 February 1991 -- 19 of 27 -- IN THE SUPREME COURT OF QUEENSLAND C.A. No. 62 of 1990 BETWEEN : ASHMORE DEVELOPMENTS PTY LTD (Plaintiff) AND : PETER STANAGE EATON. CLAIRE ANNE EATON and PETER JAMES O'GRADY (First Defendants) AND : PETER CHARLES HUXTABLE and NICHOLAS PHILLIP ANDERSON (Second Defendants) JUDGMENT - BYRNE J. Delivered the 26th day of April, 1991 This appeal raises the question whether, notwithstanding s. 117 of the Property Law Act 1974-1989, cl. 14 of the standard form contract adopted by the Real Estate Institute of Queensland in 1982 permits the vendor of land to recover from a lessee rent due but unpaid when the purchaser takes possession of the demised property. Ashmore Developments Pty Ltd ("Ashmore") owned land at Surfers Paradise. By a lease dated 1 April 1982 part of the building constructed on the land was demised to Axlong Pty Ltd. In February 1986 the lease was assigned to the appellants ("the tenants"). On 1 November 1987 Ashmore sold the land. The contract stipulated that possession was to be taken on the date fixed for completion, 26 February 1988. By that date, arrears of rent and other outgoings payable by the Respondent Appellants Appellants -- 20 of 27 -- 2 tenants were $46,626.97. Judgment was given in the Southport District Court for that amount. The tenants now appeal contending that the registration of Ashmore's transfer to its purchaser triggered s . 117 of the Property Law Act and that its operation precludes the claim. It was not suggested that the terms of the lease, the language of the assignment or any provision of the Real Property Acts are germane. Section 117 of the Property Law Act provides: "(1) Rent reserved by a lease, and the benefit of every covenant, obligation, or provision therein contained, touching and concerning the land, and on the lessee's part to be observed or performed, and every condition of re-entry and other condition therein contained, shall be annexed and incident to and shall go with the reversionary estate in the land, or in any part thereof, immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and without prejudice to any liability affecting a convenantor or his estate. (2) Any such rent, covenant, obligation, or provision shall be capable of being recovered, received, enforced, and taken advantage of, by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased. (3) Where that person becomes entitled by the conveyance or otherwise, such rent, covenant, obligation, or provision may be recovered, received, enforced or taken advantage of by him notwithstanding that he becomes so entitled after the condition of re-entry or forfeiture has become enforceable, but this subsection does not render enforceable any condition of re-entry or other condition waived or released before such person becomes entitled as aforesaid..." In this Court it was common ground that the authorities, principally London and County (A & D) Ltd v. Wilfred Sportsman Ltd [1971] Ch. 764 and Arlesford Trading Co Ltd v. Servansinah [1971] 1 W.L.R. 1080, relevantly establish two matters concerning the meaning and effect of s. 117, the Queensland -- 21 of 27 -- 3 counterpart to s. 141 of the Law of Property Act 1925 (UK). First, it confers on the assignee of the reversion a right to arrears of rent accrued prior to the assignment. Secondly, once the assignee acquires that right, the assignor loses it. Assuming, as the parties did, the correctness of those propositions, the appeal's fate depends on (i) whether the impact of s. 117 may be excluded by agreement between assignor and assignee of the reversion; and (ii) if so, whether cl. 14 of the contract achieves that result. For if Ashmore and its purchaser concluded an agreement effective to prevent the right to sue for the arrears "go (ing) with the reversionary estate ..." (see s. 117(1)) and Ashmore retained that right for itself, Ashmore established its entitlement to judgment. As the case was argued, the parties seemed to accept that, in principle, a contract for the sale of land may deny to the purchaser the benefits s. 117 would otherwise extend under an open contract or upon registration of a transfer executed without a prior contract. Two cases contain statements supporting this assumption. In Dalearove Ptv Ltd v. Isles Parking Station Ptv Ltd (1988) 12 N.S.W.L.R. 546, in respect of the New South Wales analogue to s. 117, Bryson J. remarked that "the intention of the parties is significant and could even operate to exclude the benefit from passing ...": at p. 555. In Re King deceased. Robinson v. Gray [1963] Ch. 459 Upjohn L.J. said (at p. 488): "Of course, the assignor and assignee can always agree that the benefit of the covenant shall not pass in which case the assignor can still sue, if necessary, in the name of the assignee." The point appears not to have arisen for decision. What -- 22 of 27 -- 4 Bryson J. said in Dalegrove was not necessary to the essential reasoning. Re King was not concerned with arrears of rent but instead with the rights of an assignee of the reversion for damages for breach of a covenant to rebuild; and the assignment did not contain a term concerning rights to sue for prior breaches: see p. 494 per Diplock L.J. However, it is, I think, correct that a purchaser may contract out of an entitlement under s. 117 to arrears of rent. To construe s. 117 as permitting a purchaser to renounce such a benefit accords with the notion that "everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual, in his private capacity, and which may be dispensed with without infringing on any public right or policy" : The Equitable Life Assurance of the United States v. Bogie (1905) 3 C.L.R. 878 at p. 897 per Barton J. citing Maxwell 1 s Interpretation of Statutes 4th ed. p. 480; cf. 12th ed. (1969) p. 328. This is the concept expressed in the maxim quilibet potest renunciare juri pro se introducto. Broom 1 s Legal Maxims 10th ed. (1939) p. 477 explains the maxim as meaning: "Anyone may, at his pleasure, renounce the benefit of a stipulation or other right introduced entirely in his own favour." The books contain several instances of the application of this principle to the surrender of private rights and privileges conferred by statute: see Re Permanent Trustee Nominees (Canberra) Limited [1989] 1 Qd.R. 314 and Commonwealth of Australia v. Verwaven (1990) 170 C.L.R. 394 -- 23 of 27 -- 5 where the cases are considered. In my opinion, the principle applies to s. 117. Of course the statutory benefit could not be given up by the assignee if it also exists for the benefit of another party; for example, the tenant. But neither the purpose nor language of s. 117 discloses an intention to benefit anyone other than the assignee of the reversion. At common law, except in respect of rent or services in the nature of rent, the right to sue for damages, to forfeit the lease and to re-enter could not be assigned. So where a breach of a lessee's covenant preceded assignment of the reversion, the new reversioner could not sue for damages or exercise powers of forfeiture or re-entry. Statute intervened: see Re King at pp. 479-482 where Lord Denning MR discusses the three major legislative initiatives beginning in 1540. Nowadays s. 117 "connotes the transfer of a right to enforce the covenant from the assignor to the assignee with a consequent cessation of the right to the assignor to enforce the covenant against the tenant": Re King per Diplock L.J. at p. 497. That was its object. The lessee is not an intended beneficiary of these additional rights. It may sometimes be inconvenient for the lessee that the purchaser contracts out of a statutory right to the arrears. Until apprised of the terms of the new lessor's contract, the lessee may be in doubt whether to pay vendor or purchaser. Yet this possibility does not give the lessee an interest which should prevent the renunciation of the assignee's statutory entitlement to the arrears. In short, a contract for the sale of land may deny to a purchaser th^ right to pre-completion arrears of rent. -- 24 of 27 -- 6 Is cl. 14 of the contract effective to extinguish the entitlement s. 117 otherwise confers on the purchaser to sue for arrears of rent and to preserve that right for Ashmore? The answer depends on the meaning of its words. Clause 14 provides : "Rents and profits. The rents and profits ... shall belong to the Vendor up to and including the date of possession and thereafter to the Purchaser and shall be dealt with as follows - (a) All unpaid rents and profits in respect of any period terminating on or prior to the date of possession shall not be apportioned . . . but shall be receivable by the Vendor who shall have the right to recover payment thereof; (b) All rents and profits paid in advance of the date of possession shall be apportioned between the parties on completion; (c) All rents and profits payable in respect of any period current at the date of possession which shall not be paid at the date of completion shall be apportioned when received by either party ." No doubt the primary object of the clause is to regulate apportionment of rent and "profits" which would otherwise be treated differently by statute or under the general law. Sub clause ( b ), for example, apportions rent payable in advance. This is something the common law did not permit without express agreement, and it is something s. 232 of the Property Law Act does not accomplish: cf. Ellis v. Rowbotham [1900] 1 Q.B. 740; Butt The Standard Contract for Sale of Land in New South Wales at pp. 667-668. Sub-clause (c), by its use of "profits", extends the duty to apportion beyond the periodical payments mentioned in s. 232. But the clause achieves more. An agreement between vendor and purchaser apportioning rent in arrears need not preclude the operation of s. 117. An -- 25 of 27 -- 7 agreed apportionment might involve no more than the vendor ' s entitlement to receive a payment from the purchaser of the apportioned amount. It is also possible to envisage a choice of words allowing the vendor to pursue against the lessee a claim for arrears after s. 117 has worked an assignment of them to the purchaser. The parties might agree on arrangements which did not inhibit the purchaser's having the benefit of s. 117 but nevertheless permitted the vendor to use the purchaser's name to recover an apportioned amount from the lessee. This prospect may explain why in Re Kino (at p. 488) Upjohn L.J. mentioned that it might sometimes be necessary for the assignor to sue in the assignee's name. Clause 14 is not, however, a provision having that effect. Rather, in my opinion, cl. 14 precludes the purchaser's acquiring the benefit of s. 117 in respect of the "unpaid rents" mentioned in sub-cl. (a) . Clause 14 begins with words pointing to that conclusion. "The rents" are to "belong to the Vendor up to and including the date for possession". Sub-clause (a) is also significant. Its language shows that the purchaser was not to have the benefit of s. 117 in respect of arrears of rent and that the vendor was to retain it. The arrears in this case answer the description "all unpaid rents and profits in respect of any period terminating on or prior to the date of possession". The clause provides that the lessee's liability in that respect "shall not be apportioned". Instead the rent "shall be receivable by the Vendor": an expression which signifies recovery from the lessee, not from the purchaser. And, in \ -- 26 of 27 -- 8 words apparently intended to prevent the purchaser ' s maintaining an action for unpaid rents, the clause stipulates that it is "the Vendor who shall have the right to recover payment thereof." Sub-clause (a) does not proceed on the basis that, while s. 117 works its statutory assignment of the right to arrears, the purchaser must lend his name to a suit at the behest of the vendor to recover arrears from the lessee. In my opinion, consistently with the clause's opening words, sub-cl. (a) envisages that the vendor retains the right to arrears and may sue in the vendor' s name to recover them. That is what happened here. I would dismiss the appeal with costs. -- 27 of 27 --