Re Section 11a of the City Area Leases Act 1936 and Re An Application By Hosmer Holdings Pty Limited, Nicholas James Lourandos, Aikaterina Lourandos, James Lourandos, Stephania Lourandos and Stavroula Lourandos [1991] ACTSC 7 (15 February 1991)

SUPREME COURT OF THE ACT

IN THE MATTER of Section 11A of the City Area Leases Act 1936 AND IN THE
MATTER of an Application by HOSMER HOLDINGS PTY LIMITED, NICHOLAS JAMES
LOURANDOS, AIKATERINA LOURANDOS, JAMES LOURANDOS, STEPHANIA LOURANDOS and
STAVROULA LOURANDOS
S.C. No. 729 of 1990
City Area Leases Act
(1991) 103 FLR 267

COURT

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

CATCHWORDS

City Area Leases Act - S.11A - Variation of purpose clause - whether applicant was "lessee" when Notice of Motion filed within meaning of s.11A - "Registered proprietor" - Notice of Motion a statement of intention to make application - Relevant time for applicant to be registered proprietor is at time when order is sought.

City Area Leases Act 1936 (ACT) s.3(1), s.11A, s.11A2(a)(b), Interim Territory Planning Authority - Civic Centre Policy Plan 1989

Australian Capital Territory (Planning and Land Management) Act 1988 (Cth), s.64

Real Property Act 1925 (ACT) s.61(1)(a), s.47, s.72, s.77, s.85(1)

Victorian Rules of Court O46.02(3)

Morpath v ACT Youth Accommodation Group Inc (1987) 74 ALR 121

Re C E Dent (1925) 42 WN (NSW) 177

Baker v Oakes (1877) 2 QBD 171

Body Corporate Strata Plan No. 4166 v Stirling Properties Ltd (1984) VR 307

HEARING

CANBERRA
15:2:1991

Counsel for the Plaintiff: Mr A. Tsiromokos

Instructing solicitors: Messrs Vandenberg Reid Pappas and MacDonald

Counsel for the Defendant: Mr A. Everard

Instructing solicitors: ACT Government Solicitor

ORDER

The Court provisionally orders that Clause 1(e) in Crown Lease Volume 43 Folio 4244 in respect of all that piece or parcel of land being Block 11 Section 21 Division of Braddon and known as 25 Torrens Street, Braddon ("the premises") be varied by the deleting from the said Clause 1(e) the words
"To use the said land for residential purposes only"

and substituting the words
"To use the said land for one or more of the following
purposes:-
1. offices
2. professional suites."

The above order is subject to the condition that if, in accordance with

ss.(9B) of s.11A of the City Area Leases Act 1936, a premium is payable to the Territory in respect of the variation, the premium will be paid to the Territory within two months after the date on which the applicants are notified by the Minister of the capital sums determined in accordance with ss.(9) of s.11A of the said Act.

The above order is further subject to the condition that the applicants pay the Minister's costs of and incidental to this application fixed in the sum of $250.00.

DECISION

This is an application under s.11A of the City Area Leases Act 1936 (ACT)("CALA"). The applicants are the registered proprietors of Crown Lease Volume 43 Folio 4244 of Block 11 Section 21 Division of Braddon (25 Torrens Street).

2. The purpose of the application is to amend Clause 1(e) of the Crown Lease to delete the use of the land "for residential purposes only" and substitute therefor the following:-

"To use the said land for one or more of the following
purposes:-
1. Offices;
2. Professional suites."

3. The area in question has already suffered considerable change from residential to office use. The block in question is to the south of, and in the same section as, blocks which have already changed in use from residential to office and professional uses. The alteration sought, if made, will have no effect on the amenity of the area. In effect, it will be consistent with adjacent uses rather than otherwise.

4. The Interim Territory Planning Authority (ITPA) Civic Centre Policy Plan 1989 identifies the precinct within which the subject block is located as suitable for:-

". Office/professional suites and/or
. Residential
. Social/community facility"

I note that the proposed application was duly advertised and served in accordance with s.11A (CALA). No objector has sought leave to be heard in opposition to the application. The Minister (in this case the responsible Minister is the Chief Minister) has not vetoed the application pursuant to s.11A2(b). His counsel, Mr Everard, has advised the Court that there is no objection to the proposed variation.

5. The applicants seek the variation for the purpose of replacing the existing residential building with one suitable for use pursuant to the amended purpose clause. Neither the applicants nor the relevant authorities are concerned that the residential use option will not be retained. Although the precise form of the proposed redevelopment is not before me, I note that it is intended that it will conform to agreed development conditions which are in evidence. I am satisfied that the proposed redevelopment is a reasonable user of the land which is being impeded by the existing purpose clause.

6. There is no public interest consideration making it undesirable that the change be made as sought. I am, therefore, satisfied that s.11A(2)(a) (CALA) does not require the application to be refused. (See generally Morpath v ACT Youth Accommodation Group Inc (1987) 74 ALR 121.) The proposed use would not contravene any currently approved plan. It is therefore not a variation which may be prevented or rendered futile by reference to s.11(2) or s.64 Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) ("ACT(P and LM)A").

7. There is only one matter which causes difficulty. The current registered proprietors appear on the Crown Lease (a copy is marked exhibit 1) as transferees thereof pursuant to a memorial noting the entry of the transfer on 8 February 1991 "at two o'clock in the afternoon". This matter was heard on 8 February 1991 at about 3.00pm.

8. As at the date of the Notice of Motion, 23 November 1991, the applicants had settled the purchase of the Crown Lease with the previous registered proprietor. They had passed the relevant documents to the mortgagee, whose interest is noted on the Crown Lease in a memorial immediately following the memorial noting the transfer.

9. I assume that the transfer was lodged (with the memorandum of Mortgage and Crown Lease) by the mortgagee shortly after settlement. Settlement took place, I was told, on 14 November 1990.

10. Section 11A (CALA) provides that the person or persons entitled to make an application to vary a purpose clause in a Crown Lease is "the lessee". No other person, such as an intending "lessee" or a mortgagee is entitled to make such an application. "Lessee" is defined (relevantly) as "...the person who is the registered proprietor of a lease..." (s.3(1)(CALA)).

11. By way of contrast, a sublessee is defined as "...the person who is the proprietor of a sublease..." (s.3(1)(CALA)).

12. The distinction between a "proprietor" and a "registered proprietor" is not one which is addressed in the City Area Leases Act 1939 (ACT).

13. In the Real Property Act 1925 (ACT) ("RPA") the term "proprietor" is defined by s.6(1)(a). It means "...a person seized or possessed of, or entitled to, land, at law or in equity;". I have no doubt that, in view of the complementary relationship between the two Acts mentioned above, the word "proprietor" is used in the same sense in both Acts.

14. The word "registered" in relation to the "proprietor" of a "lease" granted under CALA must, of course, refer to the process of registration of proprietorship of such a lease pursuant to the provisions of RPA.

15. Section 47 (RPA) provides that a memorandum of transfer of the land under the Act:-

"shall be deemed to be ...registered so soon as a memorial
thereof...has been entered in the Register Book upon the
folium constituted by the existing...certificate of title
of the land, and
the person named...shall be deemed to be the registered
proprietor thereof."

Section 72 (RPA) applies that general provision to registered Crown Leases. Section 77 (RPA) provides that a transferee of an interest takes that interest upon registration.

16. By contrast, a sublease for not more than three years need not be registered to be binding on the proprietor of an interest conferred by a registered dealing (see s.85(1)(RPA)).

17. Accordingly, a purpose for the distinction observed in s.3(1)(CALA) between the definitions of "lessee" and "sublessee" can readily be observed. Further, a sublessee's interest in a "purpose clause" change is indirect rather than otherwise.

18. I conclude, therefore, that at the time when the notice of motion and the supporting affidavit were filed, despite the deponent's assertion therein to the contrary, the applicants were not then "the lessee" within the meaning of s.11A(1) (CALA). I note that this conclusion is consistent with the decision in Re C E Dent (1925) 42 WN (NSW) 177.

19. That, of course, does not end the matter. Mr Tsirimokos (for the applicants) submits that the appropriate time at which or by which the applicants need to be registered is when the order is actually sought.

20. On this latter question, I have had the benefit of written submissions from the solicitors for the applicants. Those submissions point to the general rule that an application is made when it is heard. That is consistent with the Rules of this Court. Order 54 rule 1 provides:-

"Where by these Rules any application is authorized to be
made to the Court or Judge, such application, if made in
Court, shall be made by motion."

Notice of such a motion is, of course, required. That "notice" is a statement of intention to make the application in question. It is not, itself, the application. This is also consistent with the present Victorian Rules of Court (see Order 46.02 (3)).

21. It seems to me appropriate to interprete s.11A(1) (CALA) consistently with the Rules of Court. It refers to an "application" being by "notice of motion". The application is to the Court as opposed to a Judge. (See Baker v Oakes (1877) 2 QBD 171). This means that the application referred to is not one that can be made in Chambers. It would, accordingly, normally be dealt with in public (see BCSP No. 4166 v Stirling Properties Ltd (1984) VR 307). Given the provision for objections and the public importance of applications under s.11A, this is plainly an intended consequence.

22. The motion is, of course, an originating one but that makes no difference to the essential procedural nature of it.

23. It seems to me, therefore, that the applicants' submission is correct. The applicants, when the motion comes on for hearing, must be then qualified as registered proprietors of the lease to be qualified to make the application. No doubt it would be prudent for an existing registered proprietor to be an applicant if there is doubt whether a purchaser of the interest of the registered proprietor will, by the date for hearing, be the registered proprietor (see, for example, Re C.E. Dent (supra)).

24. It follows that the present applicants are entitled to apply for the orders sought even though they become the registered proprietors of the lease sought to be varied only an hour before their application came on for hearing.

25. The Court -

1. provisionally orders that Clause 1(e) in Crown Lease
Volume 43 Folio 4244 in respect of all that piece or
parcel of land being Block 11 Section 21 Division of
Braddon and known as 25 Torrens Street, Braddon ("the
premises") be varied by the deleting from the said
Clause 1(e) the words
"To use the said land for residential purposes
only"
and substituting the words
"To use the said land for one or more of the
following purposes:-
1. offices
2. professional suites."
2. The above order is subject to the condition that if,
in accordance with ss.(9B) of s.11A of the City Area
Leases Act 1936, a premium is payable to the Territory
in respect of the variation, the premium will be paid
to the Territory within two months after the date on
which the applicants are notified by the Minister of
the capital sums determined in accordance with ss.(9)
of s.11A of the said Act.
3. The above order is further subject to the condition
that the applicants pay the Minister's costs of and
incidental to this application fixed in the sum of $250.00.