Re the City Area Leases Act 1936 and Re An Application By Howard Charles Grant, John Whitton Haslem, Cecil John Louttit and Laurus Vant Westende To Vary the Provisions, Covenants and Conditions In Relation To Units 1 and 2 Units [1990] ACTSC 41 (30 October 1990)

SUPREME COURT OF THE ACT

IN THE MATTER of the City Area Leases Act 1936 AND IN THE MATTER of an
application by HOWARD CHARLES GRANT, JOHN WHITTON HASLEM, CECIL JOHN LOUTTIT
and LAURUS VANT WESTENDE to vary the provisions, covenants and conditions in
relation to Units 1 and 2 Units Plan 451
S.C. No. 513 of 1990
Application to vary covenants of lease under s.11A City Area Leases Act 1936
(ACT)

COURT

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

CATCHWORDS

Application to vary covenants of lease under s.11A City Area Leases Act 1936 (ACT) - s.11A(4) - Compliance with - Whether notice filed contained adequate information - Requirements - Notice of motion "together with" affidavit in support - Meaning of "together with" - Purposive or literal interpretation s.11A(1) - Whether clause in lease a valid purpose clause - Meaning of "purpose", "business purpose", "office", "gross floor area", "use" - Restrictions on occupation - Whether valid - Restrictions on occupation and use - Whether "purpose" clause - Whether able to be varied under s.11A.

Unit Titles Act 1970 (ACT)

City Area Leases Act 1936

Seat of Government (Administration) Act 1910 (Cth)

Real Property Act 1925 (ACT)

The Leases Act 1918 (ACT)

Leases (Special Purposes) Act 1925 (ACT)

Real Property (Unit Titles) Act 1970 (ACT)

Golden-Brown v Hunt (1972) 19 FLR 438

Hatton v Beaumont and Ors (1978) 20 ALR 314

David Jones (Aust.) Pty Ltd v Arauner (1981) 38 ALR 657

Wattle Community Association Inc (Higgins J.; ACTSC; 22/8/90)

Tsoulias v Associated Properties Ltd (1977) 14 ALR 249

Grindell v Brendon (1859) 6 CB(NS) 698

In re Joel, Rogerson v Joel (1943) 1 Ch 311

Winkler v DPP (1990) 94 ALR 361

Union Trustee Co. of Australia Ltd and others v Baker (1948) 65 WN (NSW) 247

Bacon v Pianta [1966] HCA 44; (1966) 114 CLR 634

Re Goodson (1971) VR 801

Grant v Estill Holdings Pty Ltd (Lockhart J.; ACTSC; SC 172/89; 5/2/90)

Re Mack and the Conveyancing Act (1975) 2 NSWLR 623; 50 ALJ 251

Ellison v O'Neill (1968) 88 WN (Pt 1 NSW 213

Hulm v Grant and others (Lockhart J.; ACTSC; SC 520/90; 7/9/90)

Juneris Pty Ltd v Moglia Holdings Pty Ltd (Miles C.J.; ACTSC; 8/12/88; unreported)

Attorney-General for the ACT v Commonwealth (Miles C.J.; ACTSC; 31/5/90; unreported)

HEARING

CANBERRA
30:10:1990

Counsel for the Applicant: Mr R. Arthur

Instructing solicitors: Messrs Mallesons Stephen Jaques

(Ms M-E. Barry)

Counsel for the Objectors: Mr S. Walmsley

Instructing solicitors: Messrs Elrington Boardman
Allport (Mr Kaye)
Mesdames Pamela Coward and
Associates (Mr Uppal)

Counsel for the Minister: Mr A. Everard

ORDER

The application of 15 August 1990 be dismissed.

DECISION

On 15 August 1990 an application was filed in this Court on behalf of Howard Charles Grant, John Whitton Haslem, Cecil John Louttit and Laurus Vant Westende to vary certain provisions, covenants and conditions in relation to Units 1 and 2, Units Plan 451.

2. The four applicants are collectively the registered proprietors of the two units and are referred to, on the Certificates of Title, as "Trustees for the Liberal Party of Australia, Australian Capital Territory Division". There are seven units in all. The applicants collectively were registered proprietors of each of them. I will refer to The Liberal Party of Australia, Australian Capital Territory Divison as "the Liberal party".

3. Unit 3 is subject to a Caveat from the National Australia Bank Ltd. It is also the subject of a decree of specific performance for its sale to Estill Holdings Pty Ltd.

4. Unit 4 was, on 6 February 1990, transferred to James Knight Lorimer and Anne Lorimer.

5. Unit 5 was, on 5 November 1987, transferred to James Allen Cousin and Kathryn Patricia Cousin.

6. Unit 6 was, on 22 August 1988, transferred to Canberra Assurance and Investment Services Pty Limited.

7. Unit 7 remains untransferred.

8. The Units are within a building erected on Block 84 Section 37 Deakin. It is called "Deakin House".

9. The history of the acquisition of the land by the applicants is set out by Lockhart J. in a decision dated 5 February 1990, to which I was referred. I will not repeat the details his Honour there related.

10. It suffices to note that the "schedule of provisions and conditions subject to which leases of units are held" (part of exhibit 1) and the "schedule of provisions, covenants and conditions subject to which the lease of the common property is held" (part of exhibit 1) were intended to reflect the terms of the original Crown Lease granted to the applicants before the approval of a subdivision pursuant to the Unit Titles Act 1970 (ACT) ("UTA"). Those terms included conditions that the building to be erected on the site could be used only for the purposes of the Liberal Party or for offices but not for retail or wholesale trading and that not less than 50 per cent of the gross floor area of the building was to be occupied and used only by the Liberal Party.

11. However, that previous position is of background interest only. Save insofar as it assists in the interpretation of the Schedules referred to above, the original Crown Lease is displaced by the approval and registration of the Units Plan.

12. After that event, the UTA s.25 provides that the previous Crown Lessee then holds each of the Units subject to the schedule referred to above as if a separate lease of each Unit was granted by the Commonwealth to the Lessee. That means that each of Units 1 and 2 should be read as if the covenants in the schedule "subject to which leases of units are held" (so far as expressed to be applicable) are read as if repeated in a Crown Lease of each Unit. (I will refer to that document as "the Schedule").

13. It follows, therefore, that each of the Certificates of Title in respect of Units 1 and 2 is to be read as if it contained the following covenants (I cite only the relevant ones) -

"4. It is mutually covenanted and agreed as follows:
(a) Subject to sub-clause (c) of this clause to use
the premises only for any one or more of the
following purposes:
(i) Units 1-2 to be used solely by the Liberal
party of Australia Australian Capital
Territory Division;
(ii) Units 3-7 to be used for offices
BUT not for retail or wholesale trading;
...
(c) That not less than fifty per centum of the gross
floor area of the building shall be used and
occupied only by the Liberal party of Australia
Australian Capital Territory Division."

"Gross floor area" is defined by clause 1(c). It means:

"...the sum of the gross areas of the floor or floors of
the building measured from the external faces of the
exterior walls or from the centre
lines of walls separating the building from any other
building BUT EXCLUDING roof top plant rooms;"

14. The registered proprietors of Units 1 and 2 wish to vary those covenants, in effect, to remove any requirement for occupation and use of those units (or 50% of the building, if that obligation is relevant) by the Liberal Party.

15. The objectors are other Unit holders and/or persons who are officers of Unit holders. Mr Walmsley for the objectors, has raised certain preliminary matters which effectively challenge whether the application is competent.

16. These are:-

1. Whether the advertised notice was adequate;
2. Whether the filing separately of the Notice of Motion
(15 August 1990) and the affidavit in support of it
(29 August 1990) invalidates the application;
3. Whether the clauses sought to be varied are properly to be
characterized as being "in relation to the purpose for
which the land subject to the lease may be used."

1. Adequacy of Notice:

17. Mr Walmsley challenged the notice given on two bases. First, the applicants did not include their capacity as Trustees for the Liberal Party (an unincorporated association) in their description as registered proprietors. The statutory provision (s.11A - City Area Leases Act 1936 - "CALA") merely empowers the Court to make a variation order "on the application of the lessee" (s.11A(1) - CALA). "Lessee" is defined as "the person who is the registered proprietor..." (s.3(1) - CALA). There does not seem to be any requirement that the registered proprietor(s) repeat in full their description on the Certificates of Title. It is enough that the application answers the description given it in and by the Act (CALA). In my opinion, it does.

18. However, the lack of reference in the description of the registered proprietor(s) to their representative capacity highlighted another matter. This was the second matter raised by Mr Walmsley as to the adequacy of the notice. It was raised in response to a question I put as to the lack of relevant information disclosed by the Notice of Motion. I wondered whether the Full Court decision in Golden-Brown v Hunt (1972) 19 FLR 438 had any relevance.

19. In that case, the notice of the making of an Ordinance referred to it only by its uninformative short title. Blackburn and Connor JJ. found that the Notice did not unequivocally inform the public that such Ordinance had been made. The essential question, however, was the nature and extent of the information which the relevant statute required to be notified.

20. There is no doubt that this Notice of Motion gives members of the public no real information as to the change it proposes. It follows that they will not, from its publication to them, know whether it is a matter about which they should make further enquiry to determine if they wish to object or not.

21. However, Mr Arthur, for the applicants, referred to the terms of s.11A (CALA). He submitted that it required only that the notice of motion be published. It did not require that the notice of motion be informative to those who read it unaided by access to the original lease documents. I think Mr Arthur is right. It is, to my mind, an unfortunate situation. A person who could be seriously affected by the proposed change might well fail to perceive that the applicants proposed such a change to their lease conditions. In my opinion, rules should be made, or the legislation amended so as to require that the original clause or clauses and the proposed amendments be published to enable the reader properly to understand the proposal.

22. Nevertheless, the applicants have complied with s.11A(4)(CALA) so far as the form of the notice of motion and its publication is concerned. The notice published may not be 'adequate' to inform the public but it is valid.
2. Institution of the application - "together with":

23. Section 11A(4)(CALA) also requires that the applicants "file with the Registrar of the Court a notice of motion together with the affidavit in support...". Thereafter s.11A(4) requires the notice of motion and affidavit to be served on the Minister (ie the Chief Minister) - "at least thirty days before the day named in the notice for hearing the motion".

24. It is common ground that the latter obligation was complied with but Mr Walmsley contends that the affidavit, being filed 14 days after the notice of motion was not filed "together with" it. He contends further, that that procedural obligation should be regarded as mandatory.

25. Mr Arthur contended otherwise. He submitted that, in any event, it was a provision for the benefit only of the Minister and the Minister took no exception to the failure to file the notice at the same time as the affidavit. Mr Everard, for the Minister, confirmed this. Mr Arthur also disputed the submission that the requirement was satisfied only by simultaneous filing.

26. It was noted in Hatton v Beaumont and Ors (1978) 20 ALR 314 that some parts, even of a single provision in legislation, may import a mandatory obligation but others may merely be procedural and capable of being ignored or waived by the party for whose benefit they are inserted, or dispensed with by a proper authority (see David Jones (Aust.) Pty Ltd v Arauner (1981) 38 ALR 657).

27. In Wattle Community Association Inc (ACTSC; 22/8/90) I referred to Tsoulias v Associated Properties Ltd (1977) 14 ALR 249. I said that Barwick C.J. had considered that s.11A(6) of the City Area Leases Ordinance imposed a mandatory obligation on an objector to object within 21 days or lose the right to apply for leave to object. As Mr Arthur rightly pointed out, his Honour did not go so far (see p 251 lines 1-15). In fact, his Honour recited that this Court had so held but expressed no view as to whether that view was right or not. He dismissed the appeal as incompetent. The headnote to the case is, in fact, quite misleading. Even the name of the applicant is wrongly spelled. The report in (1977) 51 ALJR 471 is more accurately headnoted. The original decision appealed from was that of Blackburn J. (as he then was).

28. It was suggested by Mr Arthur that In an application by Paul Whalan and Patricia Whalan (SC 350/85, ACTSC), in respect of Crown Lease of Block 15 Section 410 Kambah, Miles C.J. had allowed an application following service not complying with s.11A(4). The file in that matter (which was tendered) reveals that the notice of motion was filed on 10 April 1985, returnable 17 May 1985. A fresh notice of motion was filed 28 May 1985, returnable 28 June 1985. An affidavit in support thereof was filed 4 July 1985. The notice was advertised 28 May 1985 (Gazette) and 25 May 1985 (Canberra Times). Copies of the notice of motion and affidavit were not served on the Minister until 28 June 1985. The notice of motion was then listed for 5 July 1985. The Minister agreed (it seems) not to object to short service and that the Court should be asked to order an abridgement of time for service of those documents. The order varying the "purposes" clause was made (provisionally) on 5 July 1985. However, his Honour did not make any order abridging the time. I do not believe that there would, in any event, have been power to have made such an order.

29. It is apparent from the above that his Honour did not have the benefit of any argument as to the effect of service otherwise than in accordance with s.11A(4)(CALA) before proceeding to make the relevant orders. He would not, I suspect, have been referred to any of the authorities to which I was referred in the Wattle Community Association Inc case (supra).

30. In my opinion, the view taken by Balckburn J. in Tsoulias's case (supra) was correct and I do not propose to depart from it. It follows that I am persuaded that the requirements for service in s.11A(4) are mandatory, that includes the obligation in relation to filing of the Notice of Motion "together with" the affidavit in support thereof.

31. Nevertheless, this does not end the matter. The phrase "together with" , according to Mr Arthur's submission and the Oxford English Dictionary, can mean either simultaneous filing or merely that both documents are required to have been filed and be "together" before the matter can further proceed.

32. Mr Walmsley referred to Grindell v Brendon (1859) 6 CB(NS) 698 where an affidavit verifying a bill of sale was to be filed "together with" it. This was held by Williams J. to mean "at the same time with the bill of sale". It is to be noted that the purpose of this provision was to enable a person searching the bill of sale to be able to see the verifying affidavit at the same time as the bill of sale.

33. Reference was also made to In re Joel, Rogerson v Joel (1943) 1 Ch 311. A bequest of a house "together with" its contents was held to be but one gift. However, I do not regard that case as being of much assistance in interpreting the provision now in question.

34. More recently, in Winkler v DPP (1990) 94 ALR 361, a Full Court of the Federal Court had to construe the term "accompanied by" in the Extradition (Foreign States) Act 1966 (Cth). At 378-9, Wilcox and O'Loughlin JJ. dealt with a submission concerning the lack of simultaneity of receipt of the request for extradition and the necessary ancillary documents. The requirement for procedural compliance is at least as strong in such a case as in the case of the variation of a lease. Further, in my opinion, "accompanied by" and "together with" are indistinguishable in meaning. Their Honours held,

"...we have no difficulty with the proposition that the
phrase "accompanied by" is sufficiently elastic to include
all material submitted at (379) about the time of the
request and before the expiration of any relevant cut-off
date."

Burchett J. (402) also took a purposive rather than a literal approach to the construction of the phrase "accompanied by".

35. It seems to me, therefore, that the meaning of "together with" in s.11A(4) (CALA) must be governed by the purpose of the provision in its context. The purpose of the affidavit being filed so as to be "together with" the notice of motion seems to me to be twofold.

(1) It enables s.11A(4)(a) to be complied with (service of
the notice and affidavit on the Minister at least
30 days before the return day);
(2) It enables a person, seeing the notice of motion
advertised, to seek access to the affidavit on the
Court file.

It follows that for either or both of the above purposes the "cut-off date" must be the earlier of the dates referred to in s.11A(4)(a) and (b). There is no doubt that (1) is the primary purpose and (2) a secondary purpose.

36. In the present case, the affidavit was filed before advertisement and before service on the Minister. I do not need to determine whether filing after advertisement but before service on the Minister (if those events occurred in that order) would suffice and I do not so decide.

37. It follows that this objection also fails.
3. Whether clause 4(a)(i) and clause 4(c) are valid "purposes" clauses:

38. This question is, of course, vital. If the clauses in question cannot be characterised as being "in relation to the purpose for which the land subject to the lease may be used" (s.11A(1), CALA) then this Court has no power further to entertain this application.

39. It is true that there is power under the UTA to cancel the units plan. However, if that occurred, the provisions of the original Crown Lease, including the covenants here sought to be varied, would be reinstated in respect of the whole parcel of land (see s.98(1)(d) UTA), that is, save insofar as, before registration, it had been subject to a variation under s.11A (CALA) (see s.98(4) UTA).

40. Section 28 (UTA) provides -

"On and after the registration of the units plan, an
alteration of the schedule of unit entitlement is not
capable of being registered unless it is made in pursuance
of an order of the Court under Part VIII or in pursuance of
an order of the Court under section 11A of the City Area
Leases Ordinance."

41. The "schedule of unit entitlements" is different from the "schedule of provisions, covenants and conditions subject to which leases of units are held".

42. The latter schedule is referred to in s.18(1)(b) (UTA). It is the document the provisions of which the applicants desire to have varied under s.11A (CALA).

43. There is no provision in the UTA permitting an alteration to that document (which is Form 4, under the Real Property (Unit Titles) Act 1970 (ACT) (RP(UT)A)).

44. Section 72A of the Real Property Act 1925 (ACT) (RPA) permits "the Minister" to grant to a lessee a variation of the purposes of a lease.

45. This is limited to a variation of the provisions of the lease specifying "the purposes for which the land may be used" as is clear from the terms of s.72A(2) RPA. It is an option which is available where otherwise a surrender and regrant of the Crown Lease would be the necessary procedure. It is an alternative to the process under s.11A (CALA). (See also s.90A - RPA - preservation of sublease when a lease is surrendered for the purpose of re-grant). As was noted in Union Trustee Co. of Australia Ltd and others v Baker (1948) 65 WN (NSW) 247, 249, the Real Property Acts do not exclude the general law of landlord and tenant. Thus, unless forbidden by express legislation, it is open to a landlord, whether the Commonwealth or not, to vary the terms of a Crown Lease with the agreement of the lessee. As I have noted, the UTA would only prevent alteration to unit entitlements.

46. The power of the Minister on behalf of the Commonwealth to grant leases of Crown land in the ACT derives from s.9 of the Seat of Government (Administration) Act 1910 (Cth). The Leases Act 1918 (ACT), ("LA"), s.2 permits the Minister to grant leases. Section 3 permits those leases to be "subject to such covenants and conditions as to rent and otherwise, as the Minister determines". Section 3B(1)(b) permits the Minister to relieve a tenant from compliance "with any covenant or condition". Such relief may be absolute or conditional (s.3AB(2) - LA). Past obligations or liabilities may be forgiven (s.3AC - LA).

47. Section 4AA (LA) deals specially with "leases for rural purposes". In practice, only such leases are granted under that Act. It covers land outside the City Area.

48. CALA provides that land included under it is excluded from the operation of the LA (s.37 CALA). However, a lease under the UTA is included (s.3(1) "lease" - CALA).

49. The Minister is empowered under s.5 (CALA) to grant leases

"in the name of the Commonwealth... for business or
residential purposes or for both business and residential
purposes".

50. Section 8 permits those purposes to be limited to a

"particular class or classes of business for which the land
included in the lease may be used."

51. It may be added that the Leases (Special Purposes) Act 1925 (ACT) (L(SP)A) permits the Minister to grant leases (s.3(1) "...for any purposes other than business or residential purposes". That clearly includes diplomatic purposes (s.3(2)) and the purposes of "approved associations", ie non-profit organisations. Section 9 excludes the application to it of both the LA and the CALA.

52. There is no evidence before me that the Liberal party is an association carried on for profit or gain to its members in the sense in which that term is usually used. I would assume it is not. It could have qualified as a lessee under the L(SP)A but this does not mean it would be excluded from holding land (through trustees) under the CALA.

53. A non-profit organisation may conduct a business and lease premises for that purpose. It may be assumed that the Liberal Party would be expected to conduct the usual range of administrative, policy formation, campaigning and fundraising activities common to organisations of the same or a similar kind. Its "purposes" would presumably be effected by the carrying out of those functions and activities ancillary thereto.

54. By bringing the land on which these units are erected under the UTA, the applicants now must be regarded as having a Crown Lease of two units, the "purpose" of which is specified by clause 4(a)(i) as

"use solely by the Liberal Party of Australia Australian
Capital Territory Division... BUT not for retail or
wholesale trading."

55. This is clearly not a "residential" purpose. A lease under CALA may be for "business" or "residential" purposes (s.5). It is necessary to determine what is meant by the reference to a "business purpose" in CALA. One meaning is "a stated occupation, profession or trade" (OED (12) "Business") or (21) "Trade, commercial transactions or engagements" or (23) "A commercial enterprise regarded as a 'going concern'; a commercial establishment with all its 'trade' liabilities, etc.". It seems to me, as used in the CALA "business" purposes must equate with what is normally understood to be trade and commerce.

56. The purpose for which Units 3-7 may be used is "for offices BUT not for retail or wholesaling". "Office" has the connotation of "a place for the transaction of business" (SOED, p 1440, No. 8). Accordingly, the leases of each of those units is for "a business purpose", narrowed further by reference to the words of exclusion.

57. The question then is whether the "purpose" of "use by the Liberal Party...BUT not for retail or wholesale trading" is a "business" purpose.

58. Certainly, a purpose may be inferred from a reference to an unincorporated association. In Bacon v Pianta [1966] HCA 44; (1966) 114 CLR 634, a gift to the "Communist Party of Australia" was construed as a gift for the "purposes of the Party". Subsequent decisions have construed similar gifts as being to the then current membership of the relevant unincorporated association subject to the interdependent rights and duties of the members (see Re Goodson (1971) VR 801 - gift to the Loyal Orange Institution of Victoria). That is, the gift is an absolute one but, contractually, as between themselves, the members are bound to deal with the gift in a manner consistent with the rules of the association from time to time. The question is to divine, in such cases, the "true" intent of the donor.

59. It seems to me that the provision specifying "use by the Liberal Party" is not a provision specifying use for the purposes of the Liberal party (however those purposes are described). It is a restriction on the person or persons who may use and occupy the units in question. It is not necessary, accordingly, to express an opinion as to whether "the purposes of the Liberal party" are a sub-category of "business purposes".

60. The nature of the use to which those persons who constitute the Liberal party may put Units 1 and 2 is not otherwise expressly defined save by the words of exclusion. Use for residential or (if it was possible) rural purposes is not, by reference to the terms of the covenants applicable to Units 1 and 2, expressly excluded, although, in my opinion, there is a necessary implication excluding those purposes. A lease, even a Crown Lease, is as amenable to having a term or terms implied as any other agreement whether that implication arises from Statute or otherwise. (See eg Youngmin v Heath (1974) 1 WLR 135; Kenny v Preen (1963) 1 QB 499 and Greig and Davis "The Law of Contract" pp 540-1.) I think it is a necessary implication that the leases of Units 1 and 2 were intended to have been for "business purposes" only.

61. Making that assumption, therefore, it is necessary to construe that part of the clause which refers to clause 4(c) to determine whether that adds to or detracts from the apparent width of the implied term or otherwise qualifies the apparent restriction on use and occupation.

62. In Grant v Estill Holdings Pty Ltd (ACTSC; SC 172/89; 5/2/90), Lockhart J. held that the breach by these applicants of the terms of covenant 4(c) was not a ground upon which a purchaser from the applicants of another unit (Unit 3) could rely to avoid specific performance. His Honour expressed a view that equated compliance with clause 4(c) with compliance with the obligation under clause 4(a)(i).

63. There is no doubt that clause 4(c) was inserted as part of the process undertaken by the draftsman of Form 4 (RP(UT)A) to translate, as best he or she could, the intent and purpose of the original covenant, ie that at least 50% of the building would be used and occupied by the Liberal Party. The provenance of the clause is relevant to its construction but the fact that there are now eight separate leases (including the common area vested in the body corporate) cannot be overlooked.

64. Certainly, a housing, shopping or commercial development can be designed to serve a variety of purposes by the effect of interdependent restrictive covenants between individual holdings (see Re Mack and the Conveyancing Act (1975) 2 NSWLR 623 (noted 50 ALJ 251)), but a "carve-up" of such a covenant by virtue of a subdivision of the land to which it previously applied can render such a covenant unenforceable in whole or part, and so void, if it then has no sensible application to the changed circumstance (eg Ellison v O'Neill (1968) 88 WN (Pt 1) NSW 213).

65. Here, as appears from his Honour's findings in Grant v Estill Holdings Pty Ltd (supra), the original intent was for half the "gross floor area" of the whole building to be used and occupied by the Liberal Party. "Gross floor area" is defined. Unless that definition is totally ignored it is difficult, with respect, to see how clause 4(c) could be satisfied by use and occupation only of the areas of Units 1 and 2. Although 4(c) is said to apply to "each" unit it would be nonsensical to suggest that not less than half of each unit is to be used and occupied by the Liberal Party. The clause itself would not bear such a construction.

66. It could conceivably be a restriction on the original registered proprietors preventing them from alienating more units than would cause the alienated space to exceed 50% of "gross floor area". That interpretation, I believe, is also nonsensical. The covenant requires "use and occupation" not necessarily proprietorship. If the Liberal Party (through the applicants) disposed of Units 3-7 entirely there is no way to determine which of the new registered proprietors would bear the burden of the restricted class of persons which could lawfully use and occupy the relevant area.

67. The choice offered with clause 4(c) is either to declare it meaningless or regard it as satisfied by the remaining terms of clause 4(a)(i) apart from the reference subjecting that clause to clause 4(c). Giving clause 4(c) a meaning coextensive with compliance with the remainder of clause 4(a)(i) I do not, with respect, find satisfactory or convincing. It involves giving no meaning to the term "Gross floor area".

68. Equally unattractive is giving it some sort of floating application like a draftsman's equivalent of the sword of Damocles.

69. The only real alternative is to declare clause 4(c) meaningless and therefore void. It simply was not apt to survive transplantation from the original Crown Lease.

70. Clause 4(a)(i) was further considered by his Honour, Lockhart J., in Hulm v Grant and others (ACTSC; SC 520/90; 7/9/90). Hulm, a person entitled to apply under s.9A (CALA), sought injunctive relief to prevent use by the applicants in these proceedings of the premises leased to them "for an unauthorized purpose".

71. The "unauthorized purpose" was said to be represented by a use of Units 1 and/or 2 otherwise than only for use "solely by the Liberal Party". His Honour was satisfied that the application was, in fact, an abuse of process, a device instigated by Estill Holdings Pty Ltd to attempt to frustrate the decree of specific performance which had been made against it.

72. His Honour expressed the view that the power of the Minister to grant leases under CALA was limited by reference to s.5 thereof (see p 7). Miles C.J., in Juneris Pty Ltd v Moglia Holdings Pty Ltd (ACTSC; 8/12/88; unreported) p 6, had expressed a tentative view that the purposes for which a lease might be granted under CALA could be wider than the two categories referred to in s.5. This was on the basis of an assumption that "industrial" purposes formed a different category not already subsumed within "business" purposes. As Lockhart J. points out, however, "business purposes" is a wide term. I accept the view of Lockhart J. that it includes "industrial" purposes rather than being a separate category. The history of the legislation supports this view. Leases for "industrial" purposes were granted under the power to grant "business" leases well before it was considered necessary to deal with "industrial" leases separately in s.8A CALA. The terms of s.3(i) L(SP)A also supports the conclusion that s.5 (CALA) was intended to define the class of leases available pursuant to CALA.

73. The categories of permitted user cannot be wider than s.5 (CALA). That, in itself, provides no restriction beyond restricting the same to "business" purposes.

74. There is a question as to the meaning the word "use" or "used" is to be accorded in clause 4(a)(i). Accepting as I do that, by clause 4(a)(i), the draftsman was endeavouring to give effect to the intent of the original Crown Lease, the particular use intended must have been use by members, employees or agents of the Liberal party conducting the business of the party and activities incidental thereto. (See Attorney-General for the ACT v Commonwealth (Miles C.J.; ACTSC; 31/5/90; unreported) and the authorities discussed therein as to the term "use".) It was plainly intended that "use" should include occupation. That did not mean the Liberal party was or is obliged to "occupy" the units. It merely means no one else is permitted to "use" the premises in a manner that includes occupation. It would not, of course, preclude the sort of "use" Lockhart J. referred to in Hulm (supra) - ie permitting persons to use, for a fee or otherwise, conference facilities used also by the Liberal Party. In other words, so long as the Liberal Party does not "part with possession" of Units 1 and 2, clause 4(a)(i) will not be offended.

75. It can safely be inferred, for reasons noted earlier, that it was not intended that the units be used and occupied otherwise than for "business" purposes nor otherwise than by the Liberal party.

76. I now have to ask whether the implied restriction that each of Units 1 and 2 was to be used only for business purposes coupled with an express restriction on user forbidding retail or wholesale trading is a valid "provision covenant or condition in relation to the purpose for which the land...may be used".

77. In my opinion, there is no difficulty accepting such "provisions, covenants or conditions" as being so related.

78. However, it is not those "provisions, covenants or conditions" the applicants ask the Court to vary. It is the provision, covenant or condition that Units 1 and 2 will be used (and occupied), if at all, only by the Liberal Party.

79. As I have noted, that provision merely restricts the use by, and occupation of, the land to an identifiable class of persons. It is not a purposive provision.

80. The question which therefore arises is whether a clause which says, for example:-

"only for business purposes other than retail or wholesale
trading and for use and occupation only by A",

can be varied under s.11A (CALA) by deleting the restriction as to the identity of the permitted occupier(s). That is, whether the non-purposive part of the provision becomes purposive by reason of its context.

81. The mere fact that such added restriction appears in the purposes clause does not, in my opinion, lead to the characterisation of that added restriction as being "in relation to the purpose for which the land may be used".

82. That purpose is (impliedly) "business" (or at least a wide range of "classes" of business - see s.8). In my opinion, it does not affect the range of permissible activities to confine their performance to A rather than permitting any person (acting otherwise lawfully) to conduct those activities on the land. It may be, of course, that A, as an occupier of the land, will wish to carry out a narrower range of activities thereon than other occupiers might. It may even be the case that the Commonwealth would expect and even rely on that result. Nevertheless, in my opinion, that does not alter or affect, widen or narrow the range of "purposes for which the land may (emphasis mine) be used".

83. I respectfully agree with Lockhart J. in Hulm (supra), 8-9 that clause 4(a)(i), as drafted, is not "a business purpose" insofar as it purports to restrict the class of persons who may occupy and use the land. That being so, a breach of clause 4(a)(i) (ie occupation and use other than by the Liberal Party) does not attract either the provisions of s.9A (CALA) (as his Honour held although, perhaps, obiter) or the power of this Court under s.11A to vary that provision by deleting that requirement though it could vary the provision concerning retail or wholesale trading and/or add a restriction otherwise to the class or classes of "business" which may be conducted thereon.

84. If the registered proprietors are, or have been, in breach of clause 4(a)(i), or desire to have it varied or deleted, then that is a matter between them and their landlord. It is to be determined according to the usual principles of landlord and tenant law.

85. Conclusion: As clause 4(a)(i) is not, insofar as it is sought to be varied, a "purposes" clause and clause 4(c) is, in my opinion, void, it follows that the applicants cannot succeed on their notice of motion. The Court has no power to effect the variation sought. The application is incompetent and must be dismissed.

86. I will hear the parties on costs.