Alexander Terrace v Glenelg Backpackers Resort No. Scciv-01-1554
[2002] SASC 210
•28 June 2002
ALEXANDER TERRACE V GLENELG BACKPACKERS RESORT
[2001] SASC 210
Civil
LANDER J. This is an appeal by two respondents from a decision given in the civil division of the Magistrates Court. I shall refer to the parties by their titles in the Magistrates Court.
The respondents are the registered proprietors of land on Moseley Street at Glenelg. They granted a registered lease to Barancourt Pty Ltd for a period of five years commencing on 12 April 1991 and ending on 11 April 1996. Pursuant to the lease Barancourt Pty Ltd had two rights of renewal each, for a further term of five years commencing respectively on 12 April 1996 and 12 April 2001.
The premises are used as a backpackers hostel. They are shop premises within the meaning of Part IV of the Landlord and Tenant Act1936 (SA) (the Act) in that they are business premises at which services are supplied to the public pursuant to: s 54 of the Act. Part IV of that Act has been repealed by the Retail and Commercial Leases Act 1995 but continues to apply to retail shop leases entered into before 30 June 1995: s 81(2)(a) Retail and Commercial Leases Act1995 (SA). The proceedings, the subject of this appeal, were brought under Part IV of the Act.
The applicant purchased the backpackers hostel business from Barrancourt Pty Ltd in 1995 for a consideration of $100,000, and the lease was transferred to it by Memorandum Of Transfer Of Lease No. 7903856. The respondents consented to the transfer.
The applicant thus became entitled to the two rights of renewal and exercised the first right of renewal to 11 April 2001. The respondents consented to that right of renewal and a Memorandum of Extension of Lease was registered in the Lands Title Office.
The right to renew the lease had to be exercised between six and nine months prior to the expiration of the term of the lease: clause 8.1 of the Lease. In this case the right of renewal therefore had to be exercised, between 11 July and 11 October 2000.
On 11 September 2000 the applicant purported to exercise the second right of renewal for a further term of five years from 12 April 2001 to 11 April 2006.
The letter purporting to exercise the option to extend the lease was written by Mr Needs, one of the directors of the applicant, to the respondents and was in the following terms:
“11/9/00
TO: 1-3 & 5-7 Alexandra Tce Pty Ltd
ATTENTION: Mr Alan Osborne
FROM: Geoff Needs
RE: Extension of Lease
Dear Alan,
Please be advised that we wish to exercise our option to extend our existing lease for a further 5 year term to expire on 11/4/2006.
Please accept this letter as confirmation of same.
Furthermore could you please advise whether we are able to negotiate a further extension beyond the expiry of this lease eg for another 5 years.
We look forward to your reply.
Yours sincerely,
Geoff Needs.”
Mr Geoff Needs and Mrs Kathryn Needs are the directors of the applicant. Both gave evidence in the trial. Mr Alan Osborne, who is a director of the respondents, also gave evidence in the trial.
On 29 September 2000 the respondents by their solicitor refused to grant an extension of the lease alleging that the applicant was in breach of the lease. Their solicitor wrote:
“29 September, 2000
Geoff Needs
Glenelg Beach Resort
1-7 Moseley Street
GLENELG BEACH SA 5045Dear Sir
I act for 1-3 Alexandra Terrace Pty Ltd and 5-7 Alexandra Terrace Pty Ltd.
I have in hand a copy of your letter of the 11th September, 2000 wherein you advise that you wish to exercise your option to extend your existing Lease for a further five year term to expire on the 11th April, 2006.
You further request advice as to whether you are able to negotiate a further extension beyond the expiry of this Lease, that is for another five years.
I am instructed to respond as follows:-
1.that my clients are not prepared to enter into any negotiations to provide you with any further entitlements to extend the Lease.
2.that my clients are not prepared to grant you the option to extend your existing Lease for a further five year term to expire on the 11th April, 2006 consequent upon your existing breach or breaches of the Lease.
Yours faithfully.”
The applicant’s solicitors responded to the respondent’s solicitor’s letter on 4 October 2000 and sought advice “as to the alleged breach or breaches of the lease”.
The respondents’ solicitor wrote to the applicant’s solicitor on 12 October 2000 in the following terms:
“Dear Sir
RE: EXTENSION OF LEASE – 1 – 7 MOSELY STREET GLENELG
I refer to your facsimile of the 4th October, 2000.
Breaches of Lease
I enclose herewith a list of non-compliance matters relating to the Lease.
The List is not intended to be exhaustive.
Payment of Rent
On my instructions your client has also been in regular breach of the lease in that it has not paid the rental on the due date.
Your client is obliged to pay rental by equal monthly instalments in advance on the first day of each month and time is of the essence in the payment of the rental reserved by the lease.
Your client has -
1Regularly failed to pay the rent on the first day of each and every month during the term of the lease.
2Provide a post dated cheque purporting to exercise its obligation to pay on the first of the month.”
Accompanying that letter was a list of non-compliance matters. Fifty-eight separate breaches were identified. No effort was made in that list to indicate the particular term of the lease which had been breached, or whether the breach was continuing.
It would seem from the letter of 12 October 2000 that the respondents were particularly concerned about the breach of payment of rental.
On 7 March 2001 the applicant brought these proceedings in the Magistrates Court invoking the jurisdiction given to that Court by the Retail And Commercial Leases Act and the Landlord and Tenant Act, seeking declarations that the plaintiff had validly exercised its option to renew the lease and that it was entitled to an extension of the term from 12 April 2001 until 11 April 2006.
It also sought a declaration that it was entitled to carry out certain repairs and renovations to the bathrooms of the leased premises. Finally it sought an injunction restraining the defendants from interfering with the applicant’s possession of the premises.
The respondents filed a defence alleging that at the time that the applicant purported to exercise its option for a further term it was in breach of the terms of the lease and in those circumstances the respondent’s “validly refused to grant an extension of the lease”. It relied on clause 8.2 of the Memorandum Of Lease which was in the following terms:
“Where the Lessee exercises his option for a further term pursuant to Clause 8.1 hereof and PROVIDED THAT there is neither then nor at the date of expiration of the term of this Lease any existing breach of any terms of this Lease then the Lessor shall grant a further lease of the demised premises on the same terms and conditions as this Lease except that the affected terms and such further lease shall be read as containing the following variations to this lease.”
The respondents pleaded that they gave notice to the applicant’s solicitors of the breaches in their letter dated 12 October 2000 and in the list of non-compliance matters which accompanied that letter.
The respondents particularised some further breaches in the defence.
The matter came on for trial before a Magistrate sitting in Adelaide. The matter continued over nine days. The Magistrate found in favour of the applicant and made orders in accordance with paragraphs 1, 2 and 3 of the application being::
“1A declaration that the applicant has validly exercised its option to renew Memorandum Of Lease Lands Title Office Registered No. 7102549.
2A declaration that the applicant is entitled to an extension of the term of the Lease from 12 April 2001 until 11 April 2006 pursuant to clause 8.1 of the Lease.
3An order that the respondents execute a Memorandum of Extension of Lease and do all things reasonably necessary to enable the same to be registered at the Lands Title Office.”
The respondents claimed in their Notice of Appeal that the Magistrate made a further order.
“4Liberty to apply as to repairs and renovations to the bathrooms and on the question of costs.”
It is not clear from the Magistrates Court file that such an order was made but nothing turns on that. That order, if it was made, will stand or fall on the result of the appeal in relation to the declarations in paragraphs 1 and 2 and the order in paragraph 3.
The respondents’ grounds of appeal are:
“1The learned Magistrate erred in failing to find that as the applicant was in breach of the Lease at the time that it exercised its option to have a further Lease and/or upon the expiration of the term of the lease, the respondents were under no obligation to grant a further Lease of the demised premises.
2The learned Trial Judge erred in finding for the applicant having regard to the competing interests of the parties.
3The finding of the learned Magistrate that Mr Osborne had either prejudiced the applicant or led Mr and Mrs Needs into a position where they confidently expected that the respondents would accept an exercise by the applicant of the option was against the evidence and the weight of the evidence.
4The learned Magistrate erred in failing to find that the applicant was in breach of the lease by having 150 beds on the leased premises.
5The learned Magistrate should have found that the applicant was in breach of its Lease with the respondents and was not entitled to exercise its option to extend the term of the lease pursuant to Clause 8 thereof.”
At the trial His Honour accepted the evidence of the applicant’s directors and rejected that of the respondents’ director. He said the respondents’ director, Mr Osborne, was totally destroyed as “a credible and an effective witness” in cross examination.
His Honour found:
“At the end of the day I wholeheartedly accept the opinion of Mr Howard that this witness (referring to Mr Osborne) was seeking to ‘take every point’ so as to regain control of the premises for his own companies (sic) purposes. He said, however, that he might not want to carry on the existing business but might want to convert the premises into flats. That was a fatuous answer; I totally disbelieve him as to same. The truth is, in my opinion, that Mr Osborne and his companies (sic) wish to take advantage of a very valuable enterprise, that has been established, on the property, by Mr & Mrs Needs.”
In the end he preferred the evidence of the applicant to that of the respondents.
He found:
“My finding is that there were breaches of the lease in that, from time to time, the landlords (sic) prior approval was not obtained. I would find further however that the landlord, by conduct and verbal assent raised no or insufficient complaint. As to the latter once complaint was raised I find that the landlord accepted the explanation provided by the tenant.”
He concluded:
“In my opinion the circumstances of this case require me to rule in favour of the applicant. If I balance the competing interests of the parties there are more serious consequences for the applicant than for the respondents. It is my view however, that Mr Osborne by his behaviour strongly prejudiced the applicant and led Mr & Mrs Needs into a position where they considered that their exercise, of the option, was one where they could confidently expect that there would be an acceptance by the landlord. Amongst other things I am strongly persuaded by the fact that three months prior to the exercise of the said option Mr Osborne supported a considerable expenditure as to, for example, security installations at the premises. Mr Osborne was aware of the substantial indebtedness the applicant was entering into. Following upon that there was the proposal, almost at the date or up to the date of the exercise of the option, as to the renovations and repairs to the ‘wet areas’ at the premises. Mr Osborne had that information to hand. He knew what was proposed. He knew that this was going to be a substantial enterprise at considerable cost. His response was to endeavour to try, in my opinion, to obtain the work for his own plumber.
As I say I therefore, find in favour of the applicant and orders will be made in accordance with the terms of the application para. 1, 2 and 3. In particular the tenancy is to continue as requested.
I understand that para. 4 may be the subject of further argument. If that is so then I invite the parties to arrange a further hearing time to consider this aspect and e.g. any orders as to costs.”
At trial the applicant accepted in the evidence of its directors that it had been in breach from time to time of the provisions of the lease. However, the applicant argued that the breaches had been spent and were not continuing at the time that the applicant exercised its option to seek an extension and at the expiration of the term of the lease. In the alternative the applicant argued that the respondents had waived their right to insist upon strict compliance with the lease.
I think His Honour has found in the conclusion to which I have referred that effectively the respondents were estopped from relying upon clause 8.2 of the lease and any breaches of the lease which were extant at the time that the option was renewed. If he has done so it is in circumstances where estoppel was not relied upon or argued before the Magistrate.
When this matter first came on for hearing before me the applicant (which is the respondent on this appeal) assumed for the purposes of its argument that there were breaches of the lease extant at either of the relevant dates, which by reason of the proviso to clause 8.2 “precluded” the applicant from accepting the offer of a renewed lease contained in that clause.
However, the applicant asserted in its outline of argument, that it was appropriate for the Magistrate to relieve the applicant from the operations of clause 8.2 pursuant to s 68(2)(da) and s 68(2)(h) of the Act.
It was submitted that the Magistrate could have made an order granting the applicant relief from the operation of any provision of the lease under either of those paragraphs in those subsections.
In the alternative it was put that the respondents’ conduct constituted unconscionable conduct within the meaning of s 51AA and or s 51AC of the Trade Practices Act1974 (Cth).
Section 51AA of the Trade Practices Act provides:
“(1)A corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories.
(2)This section does not apply to conduct that is prohibited by section 51AB or 51AC.”
Section 51AC of that Act insofar as it is relevant for these reasons provides:
“(1) A corporation must not, in trade or commerce, in connection with:
(a)the supply or possible supply of goods or services to a person (other than a listed public company); or
(b)the acquisition or possible acquisition of goods or services from a person (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
(2)A person must not, in trade or commerce, in connection with:
(a)the supply or possible supply of goods or services to a corporation (other than a listed public company); or
(b)the acquisition or possible acquisition of goods or services from a corporation (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
(3)Without in any way limiting the matters to which the Court may have regard for the purpose of determining whether a corporation or a person (the “supplier”) has contravened subsection (1) or (2) in connection with the supply or possible supply of goods or services to a person or a corporation (the “business consumer”), the Court may have regard to:
(a)the relative strengths of the bargaining positions of the supplier and the business consumer; and
(b)whether, as a result of conduct engaged in by the supplier, the business consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and
(c)whether the business consumer was able to understand any documents relating to the supply or possible supply of the goods and services; and
(d)whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the business consumer or a person acting on behalf of the business consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and
(e)the amount for which, and the circumstances under which, the business consumer could have acquired identical or equivalent goods or services from a person other than the supplier; and
(f)the extent to which the supplier’s conduct towards the business consumer was consistent with the supplier’s conduct in similar transactions between the supplier and other like business consumers; and
(g)the requirements of any applicable industry code; and
(h)the requirements of any other industry code, if the business consumer acted on the reasonable belief that the supplier would comply with that code; and
(i)the extent to which the supplier unreasonably failed to disclose to the business consumer;
(i)any intended conduct of the supplier that might affect the interests of the business consumer; and
(ii)any risks to the business consumer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the business consumer); and
(j)the extent to which the supplier was willing to negotiate the terms and conditions of any contract for supply of the goods or services with the business consumer; and
(k)the extent to which the supplier and the business consumer acted in good faith.
(4)Without in any way limiting the matters to which the Court may have regard for the purpose of determining whether a corporation or a person (the “acquirer”) has contravened subsection (1) or (2) in connection with the acquisition or possible acquisition of goods or services from a person or corporation (the “small business supplier”), the Court may have regard to:
(a)the relative strengths of the bargaining position of the acquirer and the small business supplier; and
(b)whether, as a result of conduct engaged in by the acquirer, the small business supplier was required to comply with the conditions that were not reasonably necessary for the protection of the legitimate interests of the acquirer; and
(c)whether the small business supplier was able to understand any documents relating to the acquisition or possible acquisition of the goods or services; and
(d)whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the small business supplier or a person acting on behalf of the small business supplier by the acquirer or a person acting on behalf of the acquirer in relation to the acquisition or possible acquisition of the goods or services; and
(e)the amount for which, and the circumstances in which, the small business supplier could have supplied identical or equivalent goods or services to a person other than the acquirer, and
(f)the extent to which the acquirer’s conduct towards the small business supplier was consistent with the acquirer’s conduct in similar transactions between the acquirer and other like small business suppliers; and
(g)the requirements of any applicable industry code; and
(h)the requirements of any other industry code, if the small business supplier acted on the reasonable belief that the acquirer would comply with that code; and
(i)the extent to which the acquirer unreasonably failed to disclose to the small business supplier:
(i)any intended conduct of the acquirer that might affect the interests of the small business supplier; and
(ii)any risks to the small business supplier arising from the acquirer’s intended conduct (being risks that the acquirer should have foreseen would not be apparent to the small business supplier); and
(j)the extent to which the acquirer was willing to negotiate the terms and conditions of any contract for the acquisition of the goods and services with the small business supplier; and
(k)the extent to which the acquirer and the small business supplier acted in good faith.”
It was submitted that the respondents’ conduct was unconscionable during the period June 2000 to 11 April 2001.
The applicant faced the difficulty that it had not pleaded those matters and it had not relied on either Statute in seeking its relief. Whilst the applicant’s counsel had referred to the Landlord and TenantAct during the trial, in his opening and in his address no reliance whatsoever had been placed on the Trade Practices Act at trial.
In its application the applicant claimed that it was not in breach of its obligations under the lease and therefore was entitled to exercise its option to renew. It pleaded that it had exercised its option to extend the Lease for a further term of five years from 12 April 2001 until 11 April 2006 and that the respondents “purported” to refuse to grant an extension of the lease and had alleged the applicant was in breach. It then pleaded:
“9The applicant denies that it was or is in breach of its obligations under the Lease.”
It did not plead any alternative case.
In particular it did not raise waiver, estoppel or any entitlement to the statutory relief under the Landlord And Tenant Act or the Trade Practices Act.
The respondents asserted in their defence that the applicant was in breach. The respondent referred to the letter of 12 October and the list of non-compliance matters. It identified further breaches. It claimed that the applicant was in breach at the time the applicant notified the respondents of “its desire to extend the Lease” and that the respondents “validly refused to grant an extension thereof pursuant to clause 8.2”.
I asked the respondents’ counsel to identify the breaches which the respondents submitted were existing at the time of the purported exercise of the option and at the expiration of the term of the lease.
The respondents’ counsel said his clients relied upon those breaches identified in his outline of argument. They were:
“1Clause 2.6: The respondent failed to comply with Condition 1 of the development approval dated 19th September 1997. Ex P1 pages 112 and 113, T49, 53 line 36-54 and 57.
2Clause 2.11: Four neon signs T68.
3Clause 2.13: The respondent made numerous alterations to the building without permission including the Manager’s flat, the basement and the verandah: Ex P1 at 208, T44-47.
4Clause 2.14: An electric gas stove was installed in the Manager’s flat. T10 and 44-45.
5Clause 2.25: The alterations referred to in 4.3 except the basement, were done without Council approval.
Council imposed conditions regarding bed numbers which were breached. Ex P1 pages 56; T23, 31, 59, 72 line 20-73 line 18; T256 and Ex 11.”
There is no doubt in my mind that the applicant could not answer the respondents’ defence that it was in breach of the terms of the lease unless it either denied the fact of the breaches or alternatively pleaded that it was entitled to exercise the option notwithstanding the existing breaches. To that end the applicant should have filed a reply putting those matters in issue.
On the first day of the appeal I pointed out to the applicant’s counsel that the matters upon which he intended to rely had not been pleaded. The respondents’ counsel argued that except in a very limited sense the applicant was precluded from raising those matters on appeal.
It was my view that the applicant was precluded from raising those matters on appeal unless the applicant first obtained an order giving leave to amend the application or was given leave to file a reply. The applicant made an oral application to either amend the application or file a reply. The matters which had to be pleaded needed consideration.
The matter was adjourned for two days so that a written application could be made.
On the adjourned hearing the applicant sought leave to file a reply. The reply raised waiver, estoppel, and relief under both the Landlord and Tenant Act and the Trade Practices Act:
The proposed plea was:
“3.1by reason of the matters pleaded in paragraph 2.3 the defendants (respondents) waived strict compliance with the covenants in the lease in relation to alterations to the premises and associated building works
3.2alternatively, the defendants (respondents) by their conduct pleaded in paragraph 2.3 are estopped from relying upon the failure of the plaintiff (applicant) to obtain written approval from the defendants (respondents) in respect of alterations to the premises and associated building works
3.3in the circumstances pleaded the plaintiff (applicant) ought fairly to be excused any breach of covenant of the lease existing at the date of exercise of option to renew the lease and at the date of expiration of the lease pursuant to the provisions of S.68(2) (da) and (h) of the Landlord & Tenant Act 1936.”
The proposed reply continued:
“4By reason of the inability of the plaintiff effectively to re-locate its business to other premises the plaintiff was in a position of special disadvantage.
5The defendants unconscientiously took advantage of the plaintiff.
PARTICULARS
The plaintiff repeats the matters pleaded in paragraphs 2 and 4.
6By reason of the matters pleaded in paragraphs 4 and 5 the defendants ought not be permitted to rely upon any existing breach of the lease at the date of exercise of option to renew or at the expiration of the term of the lease as a ground for non-renewal of the lease.
7At all material times the defendants were duly incorporated and carrying on business in trade and commerce providing services as landlords within the meaning of the Trade Practices Act (Commonwealth) (“TPA”).
8The plaintiff relies upon the respective provisions of TPA S.51AA, s.51AB and S.51AC.
PARTICULARS
The plaintiff repeats the matters pleaded in paragraphs 2 and 4.
9The plaintiff seeks an order pursuant to TPA S.87(2)(b) and/or (ba) varying or refusing to enforce that part of clause 8.2 of the lease which provides that upon exercise of the option to renew and at the date of expiration of the term of the lease there shall not be any existing breach of the lease.”
The submissions, which had occasioned the adjournment, relied only upon the Landlord And Tenant Act and two sections of the Trade Practices Act. The proposed reply raised a further section of the Trade Practices Act (s 51AB) but even more importantly waiver and estoppel. Waiver had been mentioned at trial. Estoppel had not been mentioned at trial or in the applicant’s submissions. The claims of waiver and estoppel and the claims for statutory relief all relied upon the same particulars which are contained in paragraph 2. Contrary to the submissions those particulars involved a course of conduct on the part of the applicant and the respondents between 1995 and at least December 2000.
The applicant claimed that the particulars given in support of the pleas relied only upon the evidence adduced at the trial and therefore the applicant did not seek to lead any further evidence in support of the matters raised in the proposed reply.
The respondents opposed the application. The respondents filed an affidavit in support of their claim that if leave were given to file a reply on the appeal they would be prejudiced.
Usually a Court of Appeal will not allow an amendment to a pleading on appeal unless the matter has been conducted in accordance with the proposed amendment at the trial.
It is unusual to allow a party to amend or supplement that party’s pleadings after judgment. Ordinarily leave to amend, after judgment has been entered, should not be allowed where any prejudice might be caused to the other party; Micarone and Others v Perpetual Trustees Australia Limited and Others (1999) 75 SASR 1 at 77.
On a reading of the evidence it is plain that the trial proceeded upon the basis that there was a dispute as to whether the applicant was in breach of any of the terms of the lease. It is also plain that the applicant contended throughout the trial that the respondents were aware of the facts and circumstances which are said to give rise to the various breaches. The cross examination of the respondents’ director proceeded upon the basis that he had allowed the applicant to proceed with full knowledge in relation to the matters which he now complains amount to a breach of the lease.
In Green v Somerville (1979) 141 CLR 594 at 608 Mason J said:
“When a question of law is raised for the first time, even in a Court of last resort, ‘upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is … expedient in the interests of justice’, to decide it (Connecticut Fire Insurance Company v Cavanagh [1892] AC 473 at 480 per Lord Watson; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 439.”
See also O’Brien and Others v Komesaroff (1982) 150 CLR 310 at 319 Goodwin v Ron Heath Tyre Service (SA) Pty Ltd (1999) 203 LSJS 198 at 214.
The difficulty the applicant faces on this application (i.e. the application for leave to file a reply) is that the matters raised are not just questions of law and any decision does not depend upon facts either admitted or proved beyond controversy.
I heard argument on the application for leave to file a reply. The applicant contended that the respondents suffered no prejudice if a reply was allowed. On the other hand the respondents asserted that if they had known that these issues were the issues to be tried they would have called other evidence. The respondent filed an affidavit exhibiting the evidence which would have been called if these further matters had been agitated. It seemed to me that the competing contentions made it necessary for a complete understanding of the evidence and of the contentions on appeal.
I therefore reserved the application for leave to file a reply until the hearing of the appeal.
The submissions of parties including those emanating from the proposed reply raise the following issues:
1.Whether the applicant was in breach of any of the terms of the lease as particularised by the respondents in their outline of argument -
(a) at the time that it exercised the option or
(b) at the expiration of the term of the lease.
2 Whether any such breach had been waived.
3Whether the respondents were estopped from relying upon clause 8.2 of the Memorandum of Lease.
4Whether any of the provisions of the Landlord and Tenant Act which allowed the Magistrates Court to give relief from the obligation to comply with the provision of the lease or agreement applied.
5Whether any of sections 51AA, 51AB or 51AC of the Trade Practices Act applied.
6If either Statute referred to in paragraphs 5 and 6 applied whether relief should be granted.
The Magistrate did not consider the matter commencing with breach or not. Whilst he made a finding that there were some breaches of the lease he did not identify those breaches nor did he find whether those breaches existed at the time that the option was exercised or at the time of the expiry of the term.
He did find that some of those breaches occurred in circumstances without the prior approval of the landlord. He seems to have found that in respect of all of those breaches the respondents were estopped from relying upon clause 8.2, although as I have said no estoppel was pleaded or argued.
The respondents complain of the Magistrate’s failure to find the breaches subsisting at the time of the exercise of the option to renew the lease or at the time of the termination of the lease.
Clause 2 of the Lease provides for the Lessee’s covenants which must be complied with:
“2.THIS LESSEE HEREBY COVENANTS AND AGREES WITH THE LESSOR that throughout the continuance of the said term or any extended or renewed term or any period during which the Lessee shall hold over or be or remain a tenant or be in occupation of the demised premises:-
2.6 Not to use the demised premises or permit the same to be used otherwise than for the purpose stipulated in Item C of the Schedule hereto.”
Item C of the Schedule provides:
“PERMITTED USE OF DEMISED PREMISES (clause 2.7)
Back packer accommodation and licensed premises under and pursuant to a residential licence including the provision of entertainment and as approved by the Municipality of Glenelg.”
Certain works were carried out to the premises. Condition 1 of the Development Approval given by the Corporation of the City of Holdfast Bay provided that the basement area of the demised premises was only to be used by guests staying in the premises and was not to be made available to the general public without the further Development Approval of the Council.
A letter was tendered from the development officer of the City of Holdfast Bay to Mr Needs dated 7 September 1998 which told him that if the basement area was to be made available to the general public then Development Approval of the Council would be required. On 9 September 1998 the applicant’s solicitors were advised that should the applicant refrain from publicly promoting or advertising activities within the basement area then no further Council Development Approval would be necessary.
On 22 September 1998 the City of Holdfast Bay wrote again to the applicant’s solicitors advising them that a condition of approval of use applied in the following terms:
“The basement area is to be used by guests staying within the building only and not to be available to the general public without the further development approval of Council.”
On 27 June 2000 the solicitors acting for the Council wrote to the applicant’s solicitors reminding them of the conditions that applied and requiring that the applicant cease operating as a bar/night club immediately.
Mr Needs, a director of the applicant, admitted in his evidence before the Magistrate that advertisements had been placed by himself, staff and entertainers promoting entertainment for the general public in the basement of the demised premises. Mr Needs further admitted in his evidence that the basement remained open to the public throughout 2000.
The applicant contended that the condition which the Council claimed to have imposed was ineffective. The applicant tendered a transcript of a hearing in the Environment Resources and Development Court before Commissioner Hodgson on 28 May 2001.
It was the applicant’s case that the Council’s solicitor on that hearing conceded that there was no condition validly imposed by the Council.
In my opinion, the transcript does not establish the proposition. Nor, in my opinion, was the tender of the transcript appropriate to establish the proposition.
If it was the applicant’s case that it was not in breach of clause 2.6 because the condition had not been validly imposed by the Council it could not establish that, by pointing to submissions made in other proceedings. It had to establish that the condition itself was, to the satisfaction of the Magistrate, not validly imposed.
In my opinion, the applicant did not discharge that evidential onus.
The respondents established that the use of the premises was subject to the condition imposed by the Council. They further established that the applicant was well aware of that condition. In my opinion the evidence establishes that the applicant breached that condition in 1998 and throughout 1999 and 2000. In the end result the terms of clause 8.2 mean that it is only the breach in the year 2000 which is important. The breach had to be in existence either at the time that the option was exercised under clause 8.2 or at the time of the expiration of the lease.
The respondents established in my opinion that the applicant was in breach of clause 2.6 at the time of the exercise of the option.
Clause 2.11 of the lease provides:
“Not without the prior approval in writing of the Lessor and any relevant authority to erect display fix or exhibit on or to the demised premises any sign whether illuminated or not advertisement or notice PROVIDED THAT to the intent that all such signs advertisements and notices used in or upon or about the demised premises shall be of uniform manner and the approval of the Lessor shall not be arbitrarily withheld or refused AND PROVIDED FURTHER THAT upon the expiration or sooner determination of the term hereby created the Lessee shall at his own expense remove any such signs lights light embellishments advertisements name or notice put by the Lessee on the exterior or interior of the demised premises or the Building and the Lessee will make good any damage or disfigurement caused by reason of such removal.”
Mr Needs admitted in cross-examination before the Magistrate that four neon signs had been placed on the inside of the windows in the basement; two on the southern side and two on the eastern side of the building. He further admitted that they had been placed there without the respondent’s consent. The applicant’s director attempted to avoid the consequence of the breach by describing the signs as internal. However, the clause on any reading applies to both internal and external signs.
The respondents have established a breach of clause 2.11.
Clause 2.13 provides:
“The Lessee shall not without the previous consent in writing of the Lessor first had and obtained by the Lessee to make any alteration or addition in the demised premises.”
It was established by evidence that certain alterations had been made to the verandah and the basement of the building. It was Mr Needs’ evidence that the oral consent of the respondents’ director had been obtained. However, it was accepted on this appeal that alterations had been made to the manager’s flat, the basement and verandah without first obtaining the consent in writing of the respondents.
It was conceded by the applicant’s counsel, on this appeal, that the applicant was in breach of clause 2.11 at the time that notice was given to exercise the option to renew the lease.
The respondents have established that breach.
Clause 2.14 provides:
“The Lessee shall not without the previous consent in writing of the Lessor install any water gas or electrical fixtures equipment or appliances or any apparatus for illuminating air-conditioning heating cooling or ventilating the demised premises nor shall the Lessee mark paint or drill or in any way deface or damage any walls ceilings partitions floors wood or other part thereof.”
It was the respondents’ case that an electric stove had been installed in the manager’s flat. Mr Needs’ evidence shows that no written consent was first obtained from the respondents.
Counsel conceded on this appeal that the applicant did not obtain the consent in writing of the respondents before installing the stove.
The respondents have established a breach of clause 2.14.
Clause 2.25 provides:
“To comply with all statutes ordinances proclamation orders or regulations present or future affecting or relating to the Lessee’s use of the demised premises and with all requirements which may be imposed upon the use of the demised premises and to ensure compliance with any of such requirements as aforesaid and against all expenses chargeable by virtue of any such Act Code or Statute upon the Lessee owner tenant or occupier of the demised premises or upon the demised premises PROVIDED THAT the covenants contained in this Clause 2.25 shall not impose on the Lessee any obligation in respect of any structural alterations improvements additions or repairs except where the same are rendered necessary or desirable as a consequence direct or indirect of any act or omission on the part of the Lessee the servant agent contractor or sub-tenant of the Lessee or any person on the demised premises or by the use of the demised premises by the Lessee notwithstanding that such use of the demised premises may be within the scope of the permitted use.”
If any structural alterations are to be made clause 2.25 obliges the lessee to comply with all statutory requirements in relation to those alterations. It therefore requires the lessee to obtain necessary Council approval before work is undertaken. Clause 2.25 does not, as the applicant submitted on this appeal, require the applicant to obtain the consent of the respondent in respect to any work to be carried out. Clause 2.13 imposes that obligation.
Clause 2.25 also obliges the lessee to comply with any other conditions for the use of the premises.
Two matters were identified by the respondents in relation to clause 2.25. First, the respondents complained about work which was done to the verandah which they asserted was done without necessary Council approval.
In my opinion, the respondents failed to establish that Council approval was necessary and/or not obtained. A letter dated 4 October 2001 was tendered written by Mr Watson, the acting senior development officer of the City of Holdfast Bay, in which he wrote:
“Building alterations comprising a verandah at the rear of the building at ground floor level, iron storage shed rear of basement bar area, opening and wall and alterations of bathroom on the first floor (1 Moseley Street) and lattice extension of fence along western boundary had been made without Development Approval. An application and supporting details for the above should be submitted for Council consideration.”
That does not establish that at the time the applicant purported to exercise the option to renew the Lease or at the expiration of the term of the Lease the applicant was in breach of clause 2.25 in respect of building alterations to the verandah.
The most that that letter establishes is that there might have been a breach as at 4 October 2001 but of course that is after the expiration of the term of the Lease. The respondents suggested that an inference arose that there was a continuing breach to that point of time.
I am not prepared to draw that inference. The respondents should have called the witness to prove the building works and the absence of Development Approval.
I am not prepared to find on the evidence before me that there was a breach at either of the two relevant dates in relation to clause 2.25 and in particular the alterations comprising the verandah.
The respondents submitted that there was a second breach of clause 2.25 in that the applicant had breached a planning decision of the Corporation of the City of Glenelg. An approval was granted for the demised premises for ninety-nine beds (Development Approval 110/40/90), subject to conditions. It was the respondents’ case that at all relevant times there were more than ninety-nine beds on the premises. It was established that an inspection had been carried out by Council and a further fifty-two extra beds were found on the premises.
On 8 January 2000 an article was published in the ‘Advertiser’ relating to the conduct of the business at the demised premises. That article stated that the applicant could accommodate one hundred and thirty people in thirty rooms.
On 25 January 2000 Mr Osborne wrote to the applicant’s directors expressing concern about that statement in that article. He said:
“The reason for our concern:
·We believe that this may breach the license (sic) and/or local government Regulations.
·We believe that this may breach building insurance policies leaving us exposed to various liabilities.”
He sought copies of a number of documents.
On 14 February 2000 Mr Osborne wrote to the applicant’s solicitors seeking written proof regarding those bed numbers. His letter was in the following terms:
“ 14/2/2000
Mr D Tillett
Re Glenelg Beach Resort
Dear
Please provide written proof regarding the bed numbers - 1st your client was stated in the Advertiser Newspaper as having a capacity of 130. Now you say 100. Please provide written confirmation you/or your clients must have on file. We only wish to set the records straight. Before 8/1/2000 all was running smoothly then your client made various statement which are in question. Please check your facts.
Regards
ALAN OSBORNE”
In the letter of 4 October 2001 from Mr Watson, the acting senior development officer, to Mr Needs (to which I have already referred), Mr Watson wrote:
“The number of beds significantly exceeds the maximum number approved. Pursuant to DA110/40/90 the number of beds should not exceed ninety-nine. All excess beds must be removed from the premises.”
In my opinion the only inference arising from the article in the ‘Advertiser’, the correspondence from Mr Osborne to Mr Needs, the correspondence from Mr Osborne to the applicant’s solicitor and the letter from the Council dated 4 October 2001 is that between the date of the ‘Advertiser’s’ article and the last mentioned letter the number of beds on the premises exceeded the number permitted by at least thirty-one.
The inspection carried out by an officer of the Council discovered fifty-two beds more than permitted by the Council approval.
The applicant admitted that there were fifty-two more beds on the premises than permitted but claimed that those beds were not used to house extra guests.
In my opinion the evidence supports a finding that the applicant was in breach of the Council condition and therefore in breach of clause 2.25.
The Magistrate found that there were more beds on the premises than permitted but they were not used in breach of the lease.
Of course the Magistrate enjoyed an advantage not available to me in that he saw and heard the witnesses. However I think the evidence established beyond doubt that the applicant was in breach in respect of this term of the lease. This is one of those unusual circumstances where it may be said that the Magistrate has palpably misused the advantage available to him and has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence: Devries and Another v The Australian National Railways Commissionand Another (1993) 177 CLR 472 at 479.
In my opinion the respondents have established a breach of clause 2.25.
It follows in my opinion that the respondents were entitled, within the terms of clause 8.02 of the lease, to withhold their approval to grant a renewal of the lease of the demised premises, because there was, at the time that the applicant purported to exercise the option to renew the lease and/or at the date of expiration of the term of the lease, existing breaches of the terms of the lease.
An option to renew a lease constitutes an irrevocable offer to grant a further term: Gerraty v McGavin (1914) 18 CLR 152. There is no contract for any further terms until the option is exercised. An option to renew a lease “is no more than an offer to make a contract”: Gilbert J McCaul (Aust) Pty Ltd v D H Club Ltd (1957) 76 W.N. (NSW) 72.
The option must be exercised in accordance with any stipulation attaching to the option and if there be conditions precedent in accordance with those conditions: Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR at 71-76; Gilbert J McCaul (Aust) Pty Ltd v R H Club Ltd (supra).
In that latter case the Full Court of the Supreme Court of New South Wales said at 74:
“In the present case the lessor irrevocably offered to grant a lease. Its offer prescribed the time and manner for acceptance. Only by performing the conditions prescribed could it be accepted and result in an agreement for a lease. A purported acceptance without performance of the prescribed conditions would not and could not be an acceptance of the offer. It would in reality be a counter offer by the original offeree requiring acceptance by the original offeror if an agreement were to result. If a conditional offer is made and the offeree without performing the condition purports to accept it, that is to say makes a counter offer and that counter offer is accepted, it is a loose although not uncommon use of language to say that the original offeror has waived performance of the condition which was prescribed by his offer as being the manner of accepting it. In contemplation of law the original offeror has done no such thing. What he has done is to accept a counter-offer and in the result an agreement is made but it is not an agreement consisting of the original offer and an acceptance of that offer.”
In my opinion once the respondents established the breaches at the relevant times they were entitled to say, as they did, that the applicant’s letter of 11 September 2000 was of no force and effect. The applicant had not complied with the conditions attaching to the option, i.e. that no breaches were in existence at the relevant times.
As I have already noticed the applicant pleaded that it was not in breach of its obligations under the lease. It did not seek, by way of an alternative, to claim that any term of the lease had been waived or that the respondents were estopped from denying that it was in breach. Nor did it seek any statutory relief.
In my opinion, on the pleadings the Magistrate should have dismissed the applicant’s application.
However, it seems clear enough from His Honour’s judgment that His Honour approached the matter on the basis that at least waiver and estoppel were live issues.
His Honour recorded an argument put by the applicant’s counsel that there had been a waiver by the respondents of any breaches by the applicant. His Honour also discussed estoppel.
Whilst it might have been permissible to consider the question of waiver because that had been alluded to in argument the applicant had not relied upon estoppel. The respondents had no notice of any such claim and had not led evidence on matters relevant to that issue.
There are a number of problems with His Honour’s reasons. First, His Honour did not observe that issues of waiver and estoppel were not raised on the pleadings. Secondly, his Honour did not identify the particular breaches of the lease and find whether those breaches existed at the time that the applicant purported to renew the lease or at the date of termination of the lease. Thirdly, he did not make any findings in relation to waiver or determine that issue. Fourthly, he did not identify the estoppel claimed by the applicant. Fifthly, he did not make any findings which might have supported an estoppel. Sixthly, he did not identify the applicant’s reliance or detriment or make any findings in connection with those issues. Seventhly, he did not find how it would be unconscionable for the respondents to not be bound by their conduct or representations. In respect of the last matter of course no finding could be made without first identifying the conduct or representations said to give rise to the estoppel and the estoppel itself.
Instead of approaching the matter upon the basis which I have identified, it seems to me His Honour reached his conclusion on what has been described as the “idiosyncratic concepts of justice and fairness”: Legione v Hateley (1983) 152 CLR 406 per Mason and Dean JJ at 431.
In my opinion, his Honour’s decision cannot stand. Unless the applicant is now entitled to leave to file a reply the principal application in the Magistrates Court should be dismissed, upon the basis that the applicant’s purported exercise of the option to renew was of no force and effect. The remaining question on this appeal is whether the applicant should be entitled, on appeal, to raise the matters now sought to be raised by way of reply.
The parties are agreed that the jurisdiction which was to be exercised by the Magistrate was in the jurisdiction given under the Landlord and Tenant Act and in particular s 68 of that Act. That section has now been repealed but by virtue of s 81 of the Retail and Commercial Leases Act which applies to this lease.
The applicant did not seek any relief under the Landlord and Tenant Act and in particular did not seek the relief which is now sought in the reply. It was incumbent, in my opinion, that if the applicant wished to seek relief from the operation of any provision of the lease agreement to seek that relief in the application.
The applicant seeks an order granting relief from the operation of the lease pursuant to: s 68(2)(da) of the Act. In particular it seeks an order that the proviso to clause 8.2 not operate and that it be entitled to exercise the option to renew notwithstanding that it is in breach of the lease and that it has not complied with the stipulations or conditions attaching to the option.
I am not sure that s 68 of the Act would allow such an order to be made but in any event I do not believe that it is appropriate to seek such an order on this appeal.
The case was never run as one in which the applicant sought any relief from the operation of any term of the lease. Indeed it was always the applicant’s case that there were no breaches, although in the cross-examination of the respondents in answer to the applicant’s primary case, the applicant sought to adduce evidence that if there were breaches the respondents, through their Directors, were aware of those breaches.
Relief under s 68(2)(da) of the Act is discretionary. It requires an examination of the circumstances and conduct of the parties and a determination by the Tribunal as to where the justice of the case lies. However, evidence was not led as to the effect upon the respondents of such an order. The case proceeded mainly upon questions of breach. In my opinion, it would not be appropriate to allow the applicant to file a reply seeking relief which ought to have been sought in the application.
I therefore decline to allow a reply which includes a claim for relief under s 68(2)(da) and (h) of the Act.
The applicant in the proposed reply has also sought relief under s 51AA, s 51AB and s 51AC of the Trade Practices Act.
In doing so it claims that the respondent’s conduct has been unconscionable. It relies upon the same conduct which is said to give rise to a claim for an estoppel. I shall deal with that part of the proposed reply at the same time as I deal with the proposed estoppel plea.
Next the applicant seeks to plead a waiver. The proposed plea is limited to waiver of the covenants in the lease relating to alterations to the premises and associated building work.
The breaches complained of not only include claims that alterations to the premises were done without the prior written approval of the respondents but other breaches. The breach of clause 2.6 is that the premises were not to be used otherwise than for the purpose stipulated in Item C of the Schedule to the Lease. I have found that the applicant is in breach of that term. The breach of clause 2.11 is in erecting displaying fixing or exhibiting any sign on the premises without the approval of the respondent. The breaches of clause 2.13 and 2.14 are matters of the kind referred to in the proposed plea. I have not found a breach of clause 2.25 in relation to the building alteration to the verandah but I have found a breach of clause 2.25 in relation to bed numbers. The proposed plea does not address that breach.
In my opinion it would be inappropriate to allow the applicant to amend to plead a waiver in respect of some of the breaches without addressing the other breaches. Such a plea would not answer the applicant’s claim.
In any event this plea should be refused because it would inevitably fail. In Bowman v Durham Holdings Pty Ltd (1973) 131 CLR 8 Stephen J (with whom Barwick CJ and Menzies J agreed) accepted as correct the statement in Gilbert J McCaul (Aust) Pty Ltd v Pitt Club Ltd (supra) that waiver is wholly inapplicable where there was a right to purchase by exercise of an option but only upon observance of conditions. That case has been applied by the Full Court of Victoria in B.S. Stillwell & Co Pty Ltd v Budget Rent-A-Car System Pty Ltd [1990] V.R. 589 per O’Bryan J at 595.
For those reasons alone I reject the application for leave to file a reply alleging waiver.
Lastly the applicant seeks to raise an estoppel. The proposed plea is again limited to an estoppel whereby the respondents are estopped from relying on the failure of the applicant to obtain written approval from the respondents in respect of alterations to the premises and associated building works.
This plea suffers from the same difficulty associated with the plea of waiver. It only addresses some of the breaches. If allowed it would not be an answer to the respondents’ claim. In my opinion the proposed plea should not be allowed.
There are further difficulties with this proposed plea. Whist it identifies the estoppel in very general terms it does not plead any reliance or detriment or that if the respondents were entitled to depart from the estoppel that conduct would be unconscionable. In the end result this is a part plea of estoppel to part of the respondents’ case.
The plea of estoppel, like the statutory pleas under the Trade Practices Act, would require the Court to consider the question of unconscionability. That would require, in this case, a far reaching examination of the conduct of the parties not undertaken at trial. This has not been undertaken. There is insufficient evidence on this matter.
I have set out earlier in these reasons s 51AC of the Trade Practices Act to show the extent and the level of inquiry which is necessary in considering whether a party is entitled to the benefits of that section. Those matters were not addressed in the evidence before the Magistrate, in addresses to him or indeed in any submissions on this appeal. That demonstrates the inappropriateness of allowing the applicant leave to raise those matters on this appeal.
In my opinion this is not a case where it would be appropriate to allow the applicant to file a reply and raise issues which were not raised at the trial. In my opinion the respondents did not lead a case at trial in answer to a claim of waiver or estoppel or on aspects of estoppel such as reliance detriment and unconscionability. The respondents did not address the questions of the statutory relief now claimed. No evidence was led in respect of those matters.
The first notice that the respondents had in relation to these very general aspects of the applicant’s case is in the evidence of Mr Needs. In cross-examination where Mr Needs claimed the respondents had some sort of notice of matters that the respondents’ counsel raised in cross-examination. It was not until the respondents’ counsel cross-examined Mr Osborne that the respondents could have thought that there was some claim for waiver or estoppel.
In my opinion it would be unfair to the respondents to allow the applicant to raise issues on appeal not raised at trial.
There is another reason why the applicant should not be allowed to file a reply raising issues not raised at trial. All of the matters which are sought to be relied upon in the proposed reply give rise to a consideration of the conduct of the respondents over the course of two years or so leading up to the date of the purported notice to renew the lease and thereafter to the termination of the lease.
Some of those matters were adverted to in the evidence. They were mainly addressed in connection with the credibility of the witnesses. Mr Milazzo, who appeared for the respondents, asserted, I think correctly, that those matters related only to credibility because the other matters were not live issues in the trial. He said, in resisting this application, that he would have called other evidence if he had been put on notice of any of the matters in the proposed reply.
An affidavit was filed by Ms Dunstone to which she exhibited the proofs of evidence of five persons. Those proofs were obtained after the applicant had given notice of its application for leave to file a reply.
Ms Agnes Brown would have been called to give evidence of a visit to the demised premises sometime in the middle of the year 2000. She had been asked to attend on that visit whilst Mr Harry Caton carried out an inspection of the premises. Her evidence would have contradicted evidence given by Mr and Mrs Needs.
A proof was obtained from an engineer, Peter Bullock, who worked on two developments to the premises being an opening to the bar and subsequent openings to the premises.
He would have given evidence of not obtaining any consent from the respondents and of an enquiry made by Mr Osborne on 17 February 2000 about the work which had been carried out on the basement. He would have been able to establish his writing on a communication from Mr Osborne. On that communication he wrote that Mr Osborne was having a problem with his tenant and that Mr Osborne had not authorised the work.
Sandy Wilkinson says in her statement that she visited the premises with Mr Osborne. Her evidence is in conflict with that of Mrs Needs in relation to that visit.
Glen Birchby has also provided a statement. Mr Birchby is an architect who had been retained by Mr Osborne on other occasions. He was approached by Mr Needs in relation to renovations to be done to the basement in relation to a single opening in the bar, and prepared some drawings. He did not prepare drawings for what amounted to multiple openings in the basement. His evidence would have supported Mr Osborne’s evidence in relation to the respondents not having consented. He would have been able to give evidence of Mr Osborne’s attitude in February 2000 in relation to the alterations made by Mr and Mrs Needs to the basement. He would also have been able to give evidence of a conversation with a member of staff in relation to the number of persons accommodated on the premises. He would have also been able to give evidence of communications with Mr and Mrs Needs relating to the alterations to which I have referred.
Lastly, Mr Andrew Chapman has provided a statement. His evidence is less relevant than the other persons. He was aware that renovations had been carried out because he used to drink in the premises. He has no memory of a lane being blocked.
I am satisfied that if the respondents had been put on notice, as they should have been, by the applicant’s application or by a reply filed prior to the trial the respondents would have called the witnesses to whom I have referred and their evidence would have been relevant to the issues which the applicant would wish to rely upon in the proposed reply. Most importantly their evidence would have corroborated in some respects and supported in other respects Mr Osborne’s evidence. Mr Osborne’s evidence is critical in relation to the respondent’s conduct and waiver and unconscionability. Their evidence may well have affected the Magistrate’s findings on credibility.
In those circumstances, in my opinion, the respondents would suffer prejudice if the applicant were entitled now to file a reply and rely upon the matters raised in the reply.
I therefore decline the applicant’s application to file a reply.
In those circumstances I must determine this appeal on the pleadings as they stood and on the issues before the Magistrate, excluding waiver and estoppel.
In my opinion the respondents have established a number of breaches existing at the time that the applicant sought to renew the lease and at the time of the termination of the lease.
In those circumstances the respondents were entitled to rely upon clause 8.2 of the lease. It follows that the applicant was not entitled to the declaration sought in paragraph 1 of the application to the Magistrate and in those circumstances the Magistrate should have dismissed the application.
I allow the appeal. I set aside the orders made by the Magistrate. In lieu thereof I make an order dismissing the applicant’s application for relief in the application dated 7 March 2001.
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