Alcune Pty Limited v Tri-Anta Pty Ltd

[1994] HCATrans 99

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney           No S134 of 1994

B e t w e e n -

ALCUNE PTY LIMITED

Applicant

and

TRI-ANTA PTY LIMITED

Respondent

Application for special leave
  to appeal

MASON CJ
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 NOVEMBER 1994, AT 12.02 PM

Copyright in the High Court of Australia

MR S.J. MOTBEY:  May it please the Court, I appear for the applicant.  (instructed by Jenkins & Associates)

MR I.M. JACKMAN:  May it please the Court, I appear for the respondent.  (instructed by Garland Hawthorn Brahe)

MR MOTBEY:   I take Your Honours to the form of the question that was posed for consideration.  That appears at page 5 of the book:

Is the defendant, under clause 36 of the lease (after compliance with the notice procedure therein prescribed) entitled to repossess the rear portion of the premises (referred to in the plaintiff’s summons) (whilst leaving the plaintiff in possession of the balance) without first obtaining sub-division approval in accordance with the Local Government Act and the Environmental Planning and Assessment Act?

Clause 36 is reproduced at page 1 of the book and provides that:

The lessor may by six (6) months’ notice in writing given on [sic] expiring at any time require the Lessee to quit and deliver up possession of that part of the demised premises shown coloured blue on the attached plan -

I hope that Your Honours now have a copy of the attached plan, which is annexure A to my further submissions.

GAUDRON J:   I have, but I do not think you should assume that I can make a deal of - - -

McHUGH J:   Head or tail of them.

MR MOTBEY:   Bay Street which the front of the premises fronts on to - - -

MASON CJ:   Have you a comprehensible plan in front of you?  If you have, you might hand it up to us and we will have a look at it.

MR MOTBEY:   Unfortunately, Your Honours, the only one I have is in the same form and that is the form that you find actually attached to the lease.  That is all that is attached to the lease and that is it.

MASON CJ:   We each have a document like that?

MR MOTBEY:   I am sorry about that.  The facsimile machine is - so, the little rectangle at the top of the allotment is the so-called “blue” land.  That fronts on to the lane at the back.  The rest of the land where the restaurant is built fronts on to Bay Street, Double Bay.

GAUDRON J:   I can work that out now.

MR MOTBEY:   Really, the only issue that is thrown up by the question which was answered against my client by Mr Justice Brownie and, again, by the Court of Appeal is the issue of the true construction of the relevant statutory material.  That material can be found reproduced at pages 53 through to 56 of the book and, most important in all of this is the word “‘Subdivision’ ‘Subdivide’” which appears at the top of  page 53 and it is said to:

mean and refer to dividing land into parts whether the dividing is:

(a) by sale conveyance transfer or partition -

and the relevant one probably in this case:

by any agreement dealing or instrument inter vivos (other than -

what I could describe as a short-term lease -

rendering different parts -

of the land -

immediately available for separate occupation or disposition.

HIS HONOUR:   How do you say any of those words are satisfied in this case and by what?

MR MOTBEY:   In a number of ways we say those words are satisfied in this case.  The first way is to say that it is necessary to approach the construction of these words with the legislative purpose at the forefront of one’s mind.  That is required by the statute, the Interpretation Act and it is also mandated by the obvious intent as disclosed in these words.

MASON CJ:   Where does that take you?

MR MOTBEY:   That takes me, with respect, to section 327 and the definition section.  Section 327 makes it clear that all subdivisions are required to be approved of by council and subsection (3) makes it clear that all agreements for subdivision are not illegal ab initio but are deemed to be subject to the obtaining of council’s subdivision consent.

Now, in my respectful submission, what is obvious is that the Parliament has in mind to cast its net as wide as possible in order to give municipal control over all activities which have the effect of rendering different parts of undivided allotments available for separate occupation or disposition.

MASON CJ:   It has used specific words though.

MR MOTBEY:   Yes, Your Honour.  In particular, the only words that are used in the definition to try and amplify and assist in understanding what is meant by dividing land into parts are the words “rendering different parts thereof immediately available for separate occupation or disposition”.  The words “sale, conveyance, transfer or partition” do not assist and the words “procuring the creation of a folio” do not assist.  So, the only way forward to understanding what the prime concept is is reference to these words, “rendering different parts thereof immediately available for disposition”.

McHUGH J:   Would you not have a better argument if you argued that a clause commencing with the word “whether” are words of extension and not restriction?  It is like section 92 of the Constitution:

trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

The words, “whether by means of internal carriage or ocean navigation” are words of extension.  They do not restrict to that sort of trade or commerce.  So, your argument is that you have got to say divide land into parts and that is it, that is what constitutes - - -

MR MOTBEY:   That is the burden of the submission that I have made in my supplementary material, Your Honour, that the only reasonable way of interpreting this is to construe it as requiring council consent for any divisions no matter how they are brought about except short-term leases.  To focus too narrowly on the word “rendering” or too narrowly on the word “immediately” cuts away the purpose that the Parliament clearly had in mind in enacting this legislation.

McHUGH J:   The problem about treating the words “whether” as words of extension is the exception in clause (b)? which seems to have a substantive operation and seems to suggest that it is only the division of land which is done by either (a), (b) or (c) which is a subdivision for the purpose of the Act.

MR MOTBEY:   Is Your Honour referring to the exclusionary - - -

McHUGH J:   I am talking about in (b).  In (b), “other than a lease for a period”, so obviously a lease for a period that meets that exception is outside the definition of “subdivision” and, therefore, that seems to indicate that (a), (b) and (c) are fundamental to the definition.

MR MOTBEY:   But, really, what is attempted to be captured there is all agreements, irrespective of their form, all dealings or instruments inter vivos irrespective of their form except the one nominated class of exception, short-term leases.  Any other dealing or transaction which brings about the state of affairs that - - -

GAUDRON J:   The “immediately available” is also a problem, is it, on that approach?

MR MOTBEY:   Yes, it could be a problem.  It does not arise under the definition in the EPA which is reproduced on page 54 but one does not necessarily interpret the word “immediately” in a temporal sense.  In legal parlance, it often refers to the immediacy of a right rather than immediate in point of time.  So that if one looks at it from this point of view:  suppose my client vacates the blue land and it passes to the possession of the landlord, the question arises has that land been rendered immediately available for separate occupation?  The answer must be, yes, it has.  The question then arises, by what means did that occur?  And the answer must be, by means of either an agreement to bring that state of affairs into reality or, alternatively, an agreement for the delivery of an instrument, a notice to quit, which would bring that state of affairs into reality.

One does not ask ab initio does the agreement render the land available for immediate occupation.  Otherwise, one cannot square-up with that the provisions of section 327(3) which deemed that every agreement to subdivide necessarily has included in it an implied term that council consent be sought and obtained.

McHUGH J:   What about somebody surrenders part of leasehold premises.  Is that caught by the definition?

MR MOTBEY:   It may be, Your Honour.  That is as high as I can put it because presumably a surrender is a consensual act.

McHUGH J:   Not necessarily, it might be surrendered by operation of law.

MR MOTBEY:   If it were a surrender by operation of law, it would not come within the phrase “any agreement” but it may require the registration of a dealing.  If it is Real Property Act land, you need a dealing to surrender a lease, as I understand it, and the registration of such a dealing may render different parts immediately available. 

The important point from a general point of view, not so much from the point of view of the applicant but from a general point of view, is that this is a very significant piece of legislation which controls conveyancing practice and environmental planning law in our State.  No body, no judicial body, has yet stated definitively what this legislation actually means.

MASON CJ:   That is understandable.

MR MOTBEY:   That is not a good basis for not seeking to provide some definition on a very important aspect of the law.  Now, it is clearly arguable, in my respectful submission, that this transaction was or is an agreement to render different parts of undivided land immediately available for separate occupation.  If that is clearly arguable, then the matter is one of very grave importance and here is the vehicle to decide, in a definitive way, how this legislation is intended to work. 

The personal prejudice to this applicant is, really, very considerable and, not only to the applicant but also to the applicant’s tenant, subtenant, who, in effect, is stymied from operating the restaurant premises if this decision is allowed to proceed.

Now, the definition under subsection (4) of the Environmental Planning and Assessment Act, which is reproduced at page 55, takes the matter further.  “Subdivision” includes a reference to the activity referred to in the Local Government Act or:

any other division of land into two or more parts which, after the division, would be obviously adapted for separate occupation, use or disposition.

In this particular instance - - -

MASON CJ:   But are we concerned with this, the environmental definition?  Is any ground taken in the notice of appeal and was there any relevant instrument under that Act?

MR MOTBEY:   Your Honour, the instrument was not before Mr Justice Brownie and it was not, therefore, before the Court of Appeal.  The matter was - - -

MASON CJ:   Why should we worry about it?

McHUGH J:   But there is no EPA instrument, is there, that touches this particular issue?

MR MOTBEY:   Well, there is, actually, with respect.

McHUGH J:   Is there?

MR MOTBEY:   There is.

McHUGH J:   I thought one of the judges said there was not.

MR MOTBEY:   No, what His Honour was referring to was a suggestion that the instrument was not tendered in evidence.  We would submit, of course, that it is a matter of law that the Court would be entitled to take judicial notice of - did not have to be tendered - and it was certainly debated before the original tribunal, Mr Justice Brownie, on the assumption that the EPA Act applied.  In fact, I have here, if Your Honours will permit me to hand it up, a copy of the local plan.

McHUGH J:   It is hardly surprising, I must say, when I saw the - it struck me as strange that there would not be some prohibition of subdivision in this municipality.

MR MOTBEY:   The way one has to approach the interpretation of the Local Environmental Plan is with regard to the definition of “development” which appears at page 54 point 45. “Development” is defined to include “the subdivision of that land” and  “subdivision” is defined at page 55 point 5 to 25.

The Local Environmental Plan puts this particular piece of ground into zone 3(d1) and what it says is - this is page 2, item 9(2):

Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which -

(a) development may be carried out -

with or without consent or prohibited -

are specified under the headings.....

(3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land -

in other words, that would include subdivision of land ‑

to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

MASON CJ:   Your time has expired, Mr Motbey.

MR MOTBEY:   Very well.

MASON CJ:   The Court need not trouble you, Mr Jackman. 

The Court is not persuaded that the proposed appeal enjoys sufficient prospects of success to warrant the grant of special leave to appeal.  The application is therefore refused.

MR JACKMAN:   I apply for costs.

MASON CJ:   You do not oppose that, Mr Motbey?  The application is refused with costs.  Court will now adjourn sie die

AT 12.25 PM THE MATTER WAS ADJOURNED SINE DIE