Re Moglia Holdings Pty Limited v Juneris Pty Ltd and the Commonwealth of Australia Re Juneris Pty Ltd v the Commonwealth of Australia [1988] ACTSC 69 (8 December 1988)

SUPREME COURT OF THE ACT

Re: MOGLIA HOLDINGS PTY LIMITED v. JUNERIS PTY LTD
and THE COMMONWEALTH OF AUSTRALIA
Re: JUNERIS PTY LTD v. THE COMMONWEALTH OF AUSTRALIA
S.C. Nos. 1521 of 1987 and 130 of 1988
Town and Country Planning - Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Town and Country Planning - City Area Leases Ordinance 1936 - parties carried on business for the supply of landscaping and building materials respectively - various declarations, directions and orders sought - actions heard together - question of court's power under Ordinance to direct lessee not to use land for unauthorised purpose - whether lease purposes clause to be continued liberally or narrowly - power of court to order joinder of Commonwealth as party to s.9A application - costs.

Evidence - meaning of terms such as "building materials" and "landscape supplies" - whether extrinsic evidence admissible.

The Queen v. Marks and Others [1981] HCA 33; (1980-1981) 147 CLR 471

Regina v. Fraser, Harris and Fraser Book Bin Ltd. (BC, CA, 1965) 52 WWR 712

HEARING

CANBERRA
8:12:1988

Counsel for Juneris Pty. Ltd. Mr B.J. Tamberlin, Q.C.

Solicitors for Juneris Pty. Ltd. Mallesons Stephen Jaques

Counsel for Moglia Holdings Mr T.M. Johnstone

Solicitors for Moglia Holdings Crossin Power Haslem

ORDER

1. In matter No. SC 1521 of 1987, the amended notice of motion be dismissed, that the plaintiff bear its own costs and in addition the plaintiff pay the costs of the secondnamed defendant, and the firstnamed defendant bear its own costs.

2. In matter No. SC 130 of 1988, the amended notice of motion be dismissed, that the plaintiff bear its own costs and the defendant bear its own costs.

DECISION

By notice of motion dated 9 December 1987 Moglia Holdings Pty. Limited commenced proceedings against Juneris Pty. Limited seeking various declarations and orders. The proceedings were numbered SC 1521 of 1987. The orders sought included the following:
"that the defendant, Juneris Pty. Limited by its

servants and agents be restrained from using or
permitting the use of the land being Block 11
Section 6 Division of Hume or any part thereof
("the Land") for any purpose other than a purpose
permitted by the Crown Lease of the land Volume
793 Folio 94 namely:
To use the premises for storage and for the
sale of builders materials and supplies to
the building trade and for the purpose of
any manufacturing process other than offensive,
hazardous or noxious industries."

2. On 18 December 1987 Gallop J. made an order pending the hearing in the above terms.

3. His Honour directed further that for the purposes of the interlocutory order, the term "builders materials and supplies" did not include certain goods set out in a list which accompanied his Honour's order. In a schedule to the notice of motion contained in an amendment made on 17 March 1988 the list was expanded and a declaration is sought that the term "builders materials and supplies" do not include the following:

"1. Firewood. 2. Products for garden use including:-
soil;
manure;
compost;
fertilisers;
tomato stakes;
lattice work;
fencing materials;
palings;
star pickets;
wooden steps.
3.Products for landscaping including:-
mossy rocks;
ground cover including chips of wood or bark;
sawdust, granite, scoria, pebbles, blue metal
or gravel;
agricultural pipes;
formed concrete products including tree
surrounds and mowing edges, paving flat
"blocks, water channels, fence posts and
"steps;
sleepers;
pine logs;
treated pine products;
scalpings"

4. By notice of motion dated 2 February 1988 Juneris Pty. Limited commenced proceedings against Moglia Holdings Pty. Limited seeking various declarations and orders which mirror those sought by Moglia Pty. Limited. The proceedings were numbered SC 130 of 1988. The orders sought included the following:

"That the defendant Moglia Holdings Pty. Ltd. by
its servants and agents be restrained from using
or permitting the use of the land being Block 29
Section 4 Division of Hume in the Australian
Capital Territory or any part thereof ("the
land") for any purpose other than the purpose
permitted by the Crown lease of the land Volume
898 Folio 42 ("the Crown lease") namely:
To use the premises only for the purpose of
storage and distribution of landscape
supplies and related office accommodation
and for manufacturing purposes which are not
hazardous, noxious or harmful to the
environment."

5. The notice of motion also sought a declaration that the words "landscaping supplies" do not include the goods set out in the schedule to the notice of motion. They are:

"Yellow bricklayers sand
White bricklayers sand
White plasterers sand
Washed river sand
Fence stakes
Fence palings
Concrete fence posts
New sleepers
Bricks
Cobblestones
Bagged lime
Bagged cement
Bagged concrete mix
Bulk concrete mix
Blue metal dust
Red granite
Lattice
Treated logs
Used sleepers
Shadecloth
Brush fencing
Sumps
Grates
Water channels
Paving slabs
Plastic sheeting."

6. On 17 March 1988 Kelly J. made an order permitting amendment of the notice of motion taken out by Moglia Holdings Pty. Limited in SC 1521 of 1987 by the addition of the Commonwealth of Australia as a second defendant, by the expansion of the list of items set out in the schedule and by the addition of a claim for costs against both defendants.

7. Both matters came on for hearing before me on the same day. I decided to hear SC 1521 of 1987 first. However, during the hearing things became confused and sometimes evidence and submissions in the one case were heard in the other at the same time. In the end, however, evidence and argument on both matters were complete.

8. There were no pleadings and the precise issues were never really identified. I leave aside the question whether a party who wishes to obtain relief under the general law in the nature of injunctions, declarations and the like is entitled to do so by simply filing a notice of motion and supporting affidavits. During the course of counsel's addresses, counsel for Moglia Holdings Pty. Limited informed me that the basis of his client's claim was restricted to the provisions of s.9A of the City Area Leases Ordinance 1936 (the Ordinance). Counsel for Juneris Pty. Limited informed me that his client based its claim on its rights under the general law as well as under the Ordinance.

9. It is convenient to set out the provisions of ss.9, 9A, 9B and 9C of the Ordinance which are in the following terms:

"Interpretation
9. In sections 9A to 9CD (inclusive) -
(a) "land" means land held under a lease;
(b) "unauthorized purpose", in relation to land,
means a purpose for which the use of the
land is not authorized by or under the lease
of the land; and
(c) a reference to the use of land includes a
reference to the use of part of the land.
Supreme Court may restrain use of land for
unauthorized purpose
9A. Where the lessee or sub-lessee of land uses
the land, or permits the land to be used, for an
unauthorized purpose, the Supreme Court may, by
order, direct the lessee or sub-lessee, as the
case may be, not to use the land, or permit the
land to be used, for that purpose.
Who may apply
9B. An application for an order under section 9A
may be made -
(a) by the Minister; or
(b) by a person who is a resident of, or the
lessee or sub-lessee of land or premises in,
the Territory.
Parties to an application
9C. (1) The parties to an application under
section 9B are -
(a) the applicant;
(b) the person specified in the application as
the person against whom an order under
section 9A is sought; and
(c) any person who becomes a party by virtue of
section 9CB.
(2) A person referred to in paragraph
(1) (b) or (1) (c) shall be a respondent to an
application under section 9B."

10. It may be noted that s.9CB applies where the land is the subject of a sublease and, in view of what I will say below, is of no practical relevance in the present case.

11. The above provisions of the Ordinance confer power on the Supreme Court to direct the lessee not to use the land or permit the land to be used for an unauthorised purpose. They do not confer any power to make declarations at all or to make orders other than as provided for. Insofar as each party seeks declarations and orders other than an order as provided for in s.9A reliance must be placed upon the general law and not merely upon the Ordinance. Furthermore, there is no provision in the Ordinance which makes the Commonwealth, or the Minister, liable to be joined as a party. Justification for joining the Commonwealth as a respondent must be found, not in the Ordinance, but in the general law.

12. It is appropriate to make some further reference to the provisions of the Ordinance, and in particular the following:

"Power of Minister to grant leases
5. Subject to this Ordinance, the Minister may,
in the name of the Commonwealth, grant leases of
land for business or residential purposes or for
both business and residential purposes.
Limitation as to lease for business purposes
8. A lease granted for business purposes or for
business and residential purposes may specify the
particular class or classes of business for which
the land included in the lease may be used."

13. At first sight it would seem that s.5 of the Ordinance envisages that leases of land may be granted for one or both of two categories of purposes only, those purposes being business purposes and residential purposes. Section 8 would seem to indicate that within the scope of business purposes or mixed business and residential purposes there are particular sub-categories, which may be specified in a lease and that the use of the land will be restricted to such specified "particular class or classes of business". However, there are other provisions in the Ordinance which suggest that the term "purposes" is not restricted to two categories only. Section 8A is concerned with the use of land "for industrial purposes" and specific purposes of that nature are referred to in sub-ss.8A(1), 8A(2), 8A(3), 8A(5) and possibly sub-ss.8A(6) and 8A(7). Hence it would seem that the specification in a lease pursuant to s.8 of a particular class or classes of business for which the land may be used may be regarded as the authorization of the use of the land for such particular class or classes of business but only for such particular class or classes of business. If the land is used for other than such particular class or classes of business, then the use may be regarded as use for an unauthorized purpose under s.9.

14. The general nature of the issues between the parties, as I understand them, may be shortly stated. Each party has for several years carried on business in the Hume industrial area. Moglia Pty. Limited traded under the name "Thomo's Soil Yard" and it is convenient to refer to it as "Thomo's". It no longer carries on business at the premises. The business is now carried on by a sublessee who operates a similar business from other premises nearby. The business conducted by Thomo's was, for want of a neutral term, in landscaping materials. Juneris Pty. Limited traded and still trades under the name "Ern Smith Building Supplies". It is convenient to refer to it as "Ern Smith". Its business was, again for want of a neutral term, in building materials. Each party is the lessee from the Commonwealth of a lease under the Ordinance and each lease contains a purposes clause which restricts the activity of the lessee to the business just described but more precisely in the terms set out in each of the notices of motion and to which reference has already been made. Each party claims that the other has gone outside the terms of the purposes clause of its lease and has trespassed into the area of activity authorised by the purposes clause of the complainant's lease.

15. I considered that the task of the Court was to be carried out in three stages. First, it was necessary to decide what was meant by the purposes clause in each case, then to apply each purposes clause to the facts as found, and lastly to decide whether any of the relief sought was appropriate.

16. There was a substantial body of evidence, much of it called over objection, about what is accepted in the building industry and in the landscaping industry and in associated activities about the meaning of such terms as "builders materials", "supplies to the building trade" and "landscape supplies". The admissibility of such evidence was pressed, particularly by counsel for Thomo's, on the basis that it was permissible to call that evidence to "remind" the Court of what already lay within the scope of its judicial knowledge or alternatively as part of a "factual matrix" against which the words needed to be interpreted. Counsel for both sides relied on a number of judicial authorities within Australia and from elsewhere. Reference was made to The Queen v. Marks and Others [1981] HCA 33; (1980-1981) 147 CLR 471. Despite the fact that that was a decision of the High Court, it is perhaps no more than a useful example of how the word "building" should be interpreted according to the context in which it appears. The case involved interpretation of union rules which excluded from membership riggers engaged in building operations. It was held that the test of whether particular activities fell within the scope of the term "building operations" was not whether such activities involved a building but was directed towards the nature of the operations in which the riggers were employed. In the judgment of Mason J., as he then was, at p 485 the word "building" especially when used as an adjective might include a mere structure or edifice.

17. The evidence in the present case of what was understood in the building trade by the terms "building materials and supplies to the building trade" or the term "landscape supplies" was, despite or perhaps because of its quantity and variety, not very helpful. The terms are, in my view, in sufficiently common use in the community as not to require evidence of this kind, whether that evidence falls into the "judicial knowledge" category or the "factual matrix" category. There is nothing in the Ordinance or in the leases themselves or in any of the evidence to indicate that the Court should adopt other than the approach of Mason J. in Marks' case which is, with respect, to apply the common sense and everyday use of the term "building" when used as an adjective. At the outset it must be said that what is meant by the terms "building materials" or "building trade" is not to be ascertained by trying to define what is meant by "a building". It is a coincidence brought about by the development and use of the English language that the word "building" may be used as a noun or as an adjective. It is erroneous as a matter of logic to assume that the area of reference of the word when used as a noun is co-extensive with the area of reference when used as an adjective (assuming, which may be doubtful, that the noun and adjective are the same "word"). A child who places building blocks on top of each other would not usually be regarded as engaged in the construction of a building. The building of a bridge might be carried out by a building contractor but the bridge itself not regarded as a building. Accordingly, in deciding whether or not Ern Smith is using its land for a purpose other than "for storage and for the sale of builders materials and supplies to the building trade", the test is not whether the material and supplies in question are intended to be used in the construction of a building or buildings or whether such material and supplies are capable of being so used. The inquiry whether the purpose for which the land is being used falls outside the restriction imposed by the words "for the sale of builders materials and supplies to the building trade" is a wider one, and is concerned in the activities and operations of persons who engage in building trades or building operations or activities.

18. Counsel for Thomo's submitted that in the purposes clause of the lease granted to Ern Smith, the phrase "to the building trade" qualifies the term "sale" with the consequence that the lessee is restricted both as to the items to be sold and as to the persons to whom they are to be sold. The items which may be sold, according to the submission, are limited to "builders materials and supplies"; the persons to whom they may be sold are limited to persons in "the building trade". Counsel for Thomo's emphasised the use of the word "for" which is used three times, but only three times, in the purposes clause and submitted that the word should not be implied as if it appeared for a fourth time in front of the phrase "supplies to the building trade".

19. Counsel for Ern Smith submitted that the lease authorizes a number of classes of business. Originally the purposes clause was restricted to "any manufacturing process other than offensive, hazardous or noxious industries". The clause was altered pursuant to s.73A of the Real Property Ordinance 1925 by endorsement placed upon the certificate of title on 8 April 1982 by the Registrar of Titles. The endorsement records that clause 4A (the purposes clause) is deleted in its entirety and there is substituted the present purposes clause referred to above.

20. Counsel for Ern Smith submitted that taking the present purposes clause as a whole, there are four permissible classes of business for which its land may be used. They are:

1. Storage (whether for a limited or unlimited range
of goods).
2. Sale of building materials.
3. Sale of supplies to the building trade.
4. Any manufacturing process.

21. If this submission is correct, the land may be used (leaving aside storage and any manufacturing process) for the sale of building materials to an unrestricted range of persons and for the purpose of sales of an unrestricted range of supplies to a restricted range of persons, namely persons engaged in the building trade. Counsel for Thomo's emphasized that the lease is a commercial document to be read in a town-planning context and the words should be given their most literal meaning. On the other hand, counsel for Ern Smith submits that the lease is not a truly commercial document and that the obvious ambiguities and imprecisions of many of the terms under consideration indicate an intention that it be construed liberally.

22. As it appears to me, the clause is certainly not drafted with regard to legal niceties. It is open to question whether the range of items that might be the subject of storage is to be read in the light of the provision immediately following which restricts the range of items that may be the subject of sale. The word "builders" lacks an apostrophe. The use of the singular term "building trade" obscures the fact that there is no building trade in the singular but a collection of trades all connected with the building industry. The term "for the purpose of" is used to qualify "any manufacturing process" but not to qualify the preceding permitted purposes of storage and sale. The singular noun "process" sits oddly in contrast with the plural "industries". All of that, I think, goes to show simply that the purposes clause should not be regarded as too fine a product of legal drafting techniques and skills. I do not think that the argument that the purposes clause is to be read as an instrument of town-planning advances the further argument that the purposes clause is to be given a narrow interpretation. Even assuming that as a town-planning tool the purposes clause is intended to protect the urban environment and the amenity of residents and occupiers, I see nothing to lead to the conclusion that the effect of a wide interpretation of the purposes clause would be to allow uses which would have a harmful effect on the environment or amenity. I am not convinced that purposes clauses were intended to insulate lessees from the effect of business competition, but even if they were, there is no persuasive evidence that the present use of the land has had any material effect on the business of Thomo's Soil Yard and there is no evidence at all that in the present case the use to which either party has put its land has had any deleterious effect on the environment or the amenity of occupants.

23. It seems to me correct, as was submitted on behalf of Thomo's, that the control of land use in the Australian Capital Territory by the device of purposes clauses in leases granted under the Ordinance, is a rudimentary form of town-planning. However, that is not to say that the device should be regarded as a form of social control. In restricting the use to which land may be put a lease should not restrict the range of people who may be permitted to make use of the land, unless the words of the purpose clause clearly require such a construction. The words in the purposes clause are to be given their ordinary grammatical meaning as far as possible, but because there is ambiguity, and imprecision, regard should be had to the overall town-planning aspects. I agree that the absence of the word "for" in front of the phrase "supplies to the building trade" has the consequence that the word "sale" is directed towards the totality of the words following, namely "of builders materials and supplies to the building trade". Even so, this, so it appears to me, leaves the scope of the term "sale" to be interpreted in one of three different ways. They are as follows:

1. (a) Sale of goods characterised as builders'
materials (to anyone), and
(b) Sale of supplies of any kind to persons
engaged in the building trade.
2. Sale (only to persons engaged in the building
trade) of builders' materials or builders'
supplies or both.
3. Sale (to anyone) of goods characterised as either
building materials or as supplies to the building
trade, or as both.

24. The first and second of these alternatives are more restrictive than the third. They define the range of permitted use by reference to the goods sold and by reference to the persons to whom they are sold. For the reasons already given, I think that the more restrictive alternatives are the less likely to have been intended.

25. The third alternative defines the range of permitted sale by reference only to the range of goods to be sold and without reference to the range of persons permitted to buy them. For the reasons given, that is, in my view, the meaning most likely to be correct.

26. The enforcement of the purposes clause by the Commonwealth as lessor is facilitated by adopting the third alternative. In order to decide whether a breach of the purposes clause has occurred, it is necessary on that interpretation to ascertain only the nature of the goods sold. On the other interpretations it is necessary to ascertain also the character of the customer since a legitimate sale could be made only to a person engaged in the building trade. Accordingly, in my view, it follows that Ern Smith may use its land for the sale to the general public both of builders' materials and of supplies to the building trade.

27. The next question is whether any of the goods set out in the schedule to the notice of motion in SC 1521 of 1987 is properly characterised as anything other than building materials or supplies to the building trade. The test, in my view, is simply this Is the item in question one which may reasonably be expected to be used by a builder in the ordinary course of building activities? The test is not whether the item is used exclusively by builders or whether the item is one which is ordinarily or usually used by builders or one which is used in connection with the construction of a building. A great deal of evidence was directed to the last question and, although not objected to, in my view it was irrelevant. Otherwise the evidence clearly suggested what I would have thought was in the judicial knowledge of the Court, namely that at the present time in Canberra many builders carry out work which is not necessarily characterised as part of the construction of a building but consists of forming and stabilizing land around a building recently constructed or renovated or extended, draining such land by means of agricultural piping, water channels and formed concrete, dividing such land from adjoining land or breaking it up into smaller areas by means of fencing, retaining walls and the like. The evidence further discloses what I would have thought was also within the judicial knowledge of the Court, namely that the sort of work just described is sometimes, even often, carried out by landscaping contractors who are not engaged in any other form of building work and who have not acquired formal or specialized skills in any recognized building trade. In other words, landscaping and building work overlap and the activities of builders or building contractors or persons engaged in building trades overlap with the activities of landscapers or landscaping contractors. However, landscap- ing contractors engage occasionally and to a certain extent in horticulture: that is not to be regarded as part of activities in which a builder would normally be expected to engage.

28. The evidence showed that there are in Canberra persons who hold themselves out to be, not builders or persons engaged in the building trade or persons engaged in the building industry, but landscaping contractors and that they are engaged in landscaping activity which, as I have already said, is not necessarily carried out by a person who is a building tradesman. Indeed landscaping seems not to be generally regarded as a conventional trade, although there is no doubt that landscaping may require the exercise of considerable skill both in design and in execution. The evidence also showed, what again I think is a matter within the judicial knowledge of the Court, that some builders' materials, such as sand, cement and the like may be used in the fabric of a building during construction and may also be used for landscaping purposes which have nothing to do in a physical sense with a building. For instance, a garden path in a park may not be associated in any way with a building. Supplies to the building trade such as tools, may be used in landscaping as well as in building work. It was submitted on behalf of Thomo's that certain items such as timber sleepers are not suitable for use in the construction of a building and insofar as they may be used in landscaping, they should not be classified as "builders materials" or "supplies to the building trade" but as landscaping materials or landscaping supplies. But, as I have already said, I do not think that the question whether certain items are "builders materials" or "supplies to the building trade" is to be answered by asking whether they are capable of being incorporated into a building or are fit for the purpose of being used in the construction of a building. The question is whether they are reasonably expected to be used by persons engaged in one or more of the building trades.

29. The evidence also showed that it is becoming increasingly common for building contractors to engage in incidental landscaping around buildings, particularly in the case of contracts to erect so-called courtyard cottages. In those cases the ACT Administration requires landscaping to be completed before a newly erected building is certified fit for occupancy. The carrying out of such landscaping involves the use of pebbles, sleepers, pine bark and the like, all landscaping materials which do not go into the construction of a building itself, but which may, nevertheless, be described as "builders materials" or "supplies to the building trade".

30. Applying these tests to the goods set out in the schedule to the notice of motion in SC 1521 of 1987, I have little difficulty in reaching the conclusion that the following are not "builders materials" nor "supplies to the building trade":

1. Firewood;
2 ......
manure;
compost;
fertilisers;
tomato stakes;
.....

31. I find that all other items set out in the schedule are "builders materials" or "supplies to the building trade".

32. On the subject of tomato stakes, I should add that I take that item to mean lengths of hardwood timber sharpened at one end, about two metres in length, about two to three centimetres by two to three centimetres thick, intended for use as support for tomatoes and climbing plants. I do not mean all lengths of hardwood timber of that thickness not sharpened, which are capable of use and likely to be used as battens in the construction of ferneries, shade-houses, balustrades, fences and the like.

33. Turning to the notice of motion in SC 130 of 1988, the essential question there is the converse of that in the other proceeding: does the sale of the items set out in the schedule fall outside the term "distribution of landscaping supplies" in the purposes clause in the Thomo's lease? In my view, all the items in the schedule are clearly items which may reasonably be expected to be used by landscaping contractors in the course of landscaping work. It is contended that the sale by Thomo's of those goods set out in the schedule falls outside the purposes clause, in other words, that Thomo's is trespassing into the area of the sale of building materials and supplies to the building trade, an area which Ern Smith wants to keep for itself. The question is, however, not whether Thomo's is engaged in the sale of building materials or supplies to the building trade, but whether its activity falls outside the permitted use of the storage and distribution of landscape supplies. It is within the judicial knowledge of the Court that all the items set out in the schedule are materials which may reasonably be expected to be ordinarily used by persons engaged in landscaping in the sense of that latter word to which I have already made reference. Again the fact that builders may on occasions make use of such items in building work, does not make any difference. The areas of activities simply overlap. The construction of retaining walls (although not all retaining walls), drains, fences, screens and many other structures may be carried out by landscapers as well as builders. Materials used in such construction are landscaping materials as well as builders' materials and many items which may be supplied to landscaping contractors may also be supplied to persons engaged in the building trade.

34. A further argument raised on behalf of Ern Smith was that the purposes clause in the Thomo's lease provided for distribution of landscape supplies and did not authorise sale. However, authority for the proposition that the concept of "distribution" may include "sale" and that the former term should not be narrowly defined can be found in the British Columbian Court of Criminal Appeal decision of Regina v. Fraser, Harris and Fraser Book Bin Ltd. (1965) 52 WWR 712. In that case Maclean J.A in the majority judgment stated at p 717 that:

"'Distribution' is obviously a word of wider
connotation than "sale" ... as sale is only one
of a number of means by which distribution can be
accomplished."

35. In my opinion, the term "distribution" is not to be read alone but as part of the phrase "distribution of landscape supplies". Bearing in mind that s.5 of the Ordinance provides that leases may be for residential or business purposes, it is clear that distribution of landscape supplies falls within a business purpose and not a residential purpose. If landscape supplies are to be distributed for a business purpose it is not difficult to see that they may be distributed by means of sale. In addition, there is no need to read down the term "distribution" to restrict it to wholesale rather than retail sale.

36. Finally, it is necessary to deal with a submission relating to s.8A of the Ordinance. Sub-s.8A(1) provides as follows:

Use of land for industrial purposes
8A (1) This section applies to land comprised in
a lease, whether granted before or after the com-
mencement of this section, if provision is made
in the lease for the land to be used -
(a) for the purpose of "an industry";
(b) for the purpose of "an industry or
industries";
(c) for the purpose of "light industrial and
commercial business"; or
(d) for the purpose of conducting "industries"
in buildings erected on the land,
and so applies whether or not the lease provides
that the use of the land for that purpose is
limited or qualified in any manner or that the
land may be used for any other purpose and
whether or not the lease restricts the kind of
industry, industries or businesses for which the
land may be used."

37. Sub-sections 8A(2) and 8A(3) provide in effect that land to which the section applies or a building erected on land to which the section applies shall not be used, inter alia, for the sale of goods by retail. However, sub-s.8A(4) provides that the use of land to which the section applies, or of a building erected on land to which the section applies for the retail sale of "(b) building materials, building equipment, building supplies or general hardware" does not contravene sub-ss.8A(2) or (3) or the lease of the land. Accordingly, it was argued on behalf of Ern Smith that the purposes clause in the lease to Thomo's, in providing for "manufacturing purposes which are not hazardous, noxious or harmful to the environment", brought the lease within the scope of s.8A and the land or any building on it could not be used lawfully for the sale of goods by retail. However, according to the submission, the provision in the Ern Smith lease "for the purpose of any manufacturing process other than offensive, hazardous or noxious industries" did not so restrict the use of the Ern Smith land because sub-s.8A(4) excluded the retail sale of building materials, building equipment and building supplies from the prohibition imposed by s.8A(2) and (3). In my view, the submission fails because there is no provision in the purposes clause of the Thomo's lease which falls within s.8A(1). There is no provision made in the lease for the land to be used in the terms set out in any of paragraphs (a) to (d) of the sub-section. In each of those paragraphs the relevant purpose is not identified by definition or description but by terms appearing in quotation marks. If the section is to apply, in my view, provision has to be made in the lease for the land to be used for a purpose which is identified by the use of the precise words "an industry", "an industry or industries", "light industrial and commercial businesses" or by reference to a purpose of conducting what are identified precisely as "industries" in buildings erected on the land. None of those precise terms is used in the Thomo's lease, or for that matter, in the Ern Smith lease. Section 8A has nothing to do with the case.

38. In relation to proceedings SC 1521 of 1987 I have already indicated that, in my view, the purposes clause in Ern Smith's lease does not authorise the sale of firewood, manure, compost, fertilisers or tomato stakes. However, I am not satisfied that Ern Smith has engaged in the sale of those items or allowed its land to be used for the purpose of the sale of those items. On the particular question of the sale of tomato stakes I prefer the evidence given by Mr. Pollard on behalf of Ern Smith to that given by Mr. Agars on behalf of Thomo's and find that the sale to which Mr. Agars deposed was of timber battens, not tomato stakes.

39. Insofar as the lease to Ern Smith authorises the use of the premises "for storage" I tend to the view that there is no restriction to the range of items which may be stored, but if I am wrong in this, then I am not satisfied that Ern Smith is in fact using the land for storage of manure, compost, fertilisers or tomato stakes. Insofar as it has allowed the land to be used for the storage and distribution of firewood to its employees I tend to the view that that use is ancillary to the overall purposes permitted by the lease but in any event I am firmly of the view that if that use constitutes a breach then it is insufficiently serious to warrant intervention by the Court. Hence I am not satisfied that the lessee "uses the land or permits the land to be used for an unauthorised purpose" within s.9A of the Ordinance. Insofar as Thomo's seeks a declaration that the term "landscaping supplies" does not include firewood, manure, compost, fertilisers or tomato stakes I decline in the exercise of discretion to grant any such declaratory relief.

40. Otherwise, in relation to proceedings SC 1521 of 1987 I am not satisfied that the sale or supply of the items set out in the schedule to the amended notices of motion falls outside the scope of the purposes clause of the lease.

41. In relation to proceedings SC 130 of 1988 I am not satisfied that the storage and distribution of the items set out in the schedule to the notice of motion falls outside the purposes clause of the lease in question.

42. For the above reasons, neither party is entitled to any of the relief sought in its notice of motion.

43. The only remaining matter to be considered is whether an order for costs ought to be made in favour of the Commonwealth. I have already said that in my opinion there is no power in the Court to order the joinder of the Commonwealth as a respondent to an application under s.9A of the Ordinance. On the other hand, if the matter came before the Court under the general law rather than pursuant to an application under s.9A, then the question would be one not so much of power or jurisdiction but whether there was any warrant in the general law for so joining the Commonwealth. As I understand the argument, Thomo's wished to be supported in its claim for relief by the Commonwealth as a co-applicant or co-plaintiff. The Commonwealth apparently indicated that it did not wish to join in the application. I do not think that the Commonwealth thereby became liable to be joined as a defendant, nor, conversely, that Thomo's then became entitled to join the Commonwealth as a defendant. The order that the Commonwealth be joined as a respondent to the notice of motion was made, as I understand it, ex parte and without the Commonwealth being heard. No relief was ever sought against the Commonwealth, except an order for costs. I am of the view that there is no basis upon which an order for costs may be made against the Commonwealth.

44. On the other hand, the Commonwealth has been brought into the proceedings and has incurred costs at the insistence of Thomo's and it is only appropriate that Thomo's should pay the costs of the Commonwealth incurred in proceedings SC 1521 of 1987.

45. The formal orders I make are as follows:

46. In matter No. SC 1521 of 1987, the amended notice of motion is dismissed. The plaintiff is to bear its own costs and the firstnamed defendant is to bear its own costs. The firstnamed defendant is in addition to bear the costs of the secondnamed defendant.

47. In matter No. SC 130 of 1988, the notice of motion is dismissed and the plaintiff is to pay its own costs and the defendant is to pay its own costs.

48. It might be noted that as the proceedings came before the Court by way of notice of motion, the parties should have been referred to as applicant and respondent respectively.