AUSTRALIA and NEW ZEALAND BANKING GROUP LIMITED MICHAEL TYLER v.THE UNIVERSITY of ADELAIDE and the STATE BANK of SOUTH AUSTRALIA No. SCRG 93 47 Judgment No. 3836 Number of Pages - 12 Statutes - Interpretation

[1993] SASC 3836

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Statutes - interpretation - The University of Adelaide Act 1971 provides that the University, without the approval of the Governor, shall not grant a lease in respect of its property 'unless the lease provides for the payment to the University of an amount of rental that is the maximum reasonably obtainable' - the University refused to renew the lease of the plaintiff ANZ pursuant to which it conducted a branch of its banking operations on the North Terrace campus of the University, did not enquire what rental it would be prepared to pay for renewal of the lease or a new lease and did not put the leasing of the premises up for tender - instead the University purported to give a lease to a competing bank, including exclusive rights to conduct banking business on the campus at a rental substantially lower than that which ANZ asserted that it was prepared to pay - held that, even assuming that the University had failed to obtain the 'maximum reasonably obtainable' rental, the terms of the relevant provisions of the Act were directory rather than mandatory and accordingly the purported lease was neither void nor unenforceable - consideration of the history of the legislation and review of the relevant principles of statutory interpretation.
University of Adelaide Act 1971s4(l), (2) and (3), sl2(1)(b); University of Adelaide Act 1935-1936 s4(3) and (4) and The Adelaide University Act 1874 sl., ABC v Redmore Pty Ltd (1987) 11 NSWLR 621 at 634, (1989) 84 ALR 199, 166 CLR
454 and Yanao Pastoral Company Limited v First Chicago Australia Ltd (1978) 139 CLR 410 at 423, considered.

HRNG ADELAIDE, 16 February 1993 #DATE 10:3:1993
Counsel for plaintiff ANZ:         Mr A J Besanko and Mr G R Tye
Solicitors for plaintiff ANZ:        Norman Waterhouse
Counsel for plaintiff Tyler:         Mr A J Besanko and Mr G R Tye
Solicitors for plaintiff Tyler:     Norman Waterhouse
Counsel for defendant University:    Mr I D Nosworthy
Solicitors for defendant University: Finlaysons
Counsel for defendant State Bank:    Ms C M Branson QC and
   Mr G D Edmonds-Wilson
Solicitors for defendant State Bank: Baker O'Loughlin

ORDER
Application dismissed.

JUDGE1
The plaintiffs, the Australia and New Zealand Banking Group Limited ("ANZ") and Michael Tyler, who is an Associate Professor of Zoology of the University of Adelaide ("the University"), seek, as against the University and The State Bank of South Australia ("State Bank"), who are the defendants to the action, a declaration that a purported lease dated 7 October 1992, granted by the University to State Bank, is void. 2. The purported lease relates to premises situated within that area of the North Terrace campus of the University known as Level 4 of the Hughes Plaza building forming part of the Library Complex. Broadly speaking, the North Terrace campus divides into an upper level, which is contiguous to North Terrace, and which includes the Hughes Plaza building, and a lower level, the northern boundary of which is separated from the Torrens Lake by Victoria Drive. 3. At the time the action was brought, ANZ was in occupation of the subject premises, at which it had established a branch from which it conducted general banking business. ANZ's lease of the premises is dated 29 October 1986, and secured its occupancy of the premises for a term which expired on 1 March 1993. The term of the purported lease commenced on the same date, that is, 1 March 1993, and, if valid, is due to expire on 28 February 1998, with a right of renewal for a further five years. By agreement between the parties, ANZ has held over its occupation of the premises, pending the delivery of this judgment. 4. ANZ has conducted banking operations at the North Terrace campus of the University for many years, having first established a branch there in 1964. Its branch was then located on the lower level of the campus in the building known as Union House. Since 1972, the Bank of Adelaide had operated a branch on premises situated on the upper level. In 1980 ANZ and the Bank of Adelaide merged. From 1986 the merged bank conducted only one branch, being the branch located in the subject premises. Following the closing by ANZ of its Union House branch, State Bank opened an agency in the same building. State Bank's involvement with the University has been more extensive than the operation of that branch in that for some time it has been general banker to the University. 5. In April 1992, ANZ approached the University with a view to negotiating a renewal of its lease. By letter of 4 June 1992, David Beecher, Deputy Registrar (Resources) of the University, wrote to ANZ, stating in part:
    "The University has decided not to renew the lease with your
    bank which as you say expires on 1.3.93. In fact we have
    entered into an agreement with our bankers, the State Bank, to
    lease the premises to them from that date." 6. After receipt of that letter, ANZ entered into further correspondence with the University, and also negotiated with the Adelaide University Union in an endeavour to maintain a branch, either in the subject premises or in Union House. But both the Union and the University declined to accommodate ANZ. Discussions between the University, ANZ and State Bank, down to December 1992, during which the possibility of an agency facility for ANZ Bank was canvassed, came to nothing. 7. Throughout the year, a degree of agitation manifested itself among staff and students who are customers of ANZ Bank. Some resistance developed to the action of the University administration in excluding ANZ from the campus, thereby denying convenient ongoing access by existing customers of ANZ who wished to continue to do business with that bank within the University grounds. Eventually the matter was ventilated in the Council of the University. On 11 December 1992, the Council resolved:
    "(a) That an urgent opinion be obtained from the solicitors of
    the University as to whether it is legally bound by any actions
    of management to date to lease to the State Bank the banking
    chamber situated on the Hughes Plaza.
    (b) In the event that the University is not so legally bound,
    no further action be taken to require the ANZ to vacate the
    Hughes Plaza banking chamber until further consideration of the
    question by Council.
    (c) In the event that the University is so legally bound,
    management ensure that suitable accommodation is made available
    on campus for ANZ banking facilities adequate to service the
    needs of the University community conformably with its legal
    obligations to the State Bank.
    (d) A sub-committee of the Council enquire into the question of
    future desirable banking arrangements on campus and report
    thereon to the Council." 8. Apparently the solicitors of the University subsequently advised that the University was bound to adhere to the purported lease to State Bank. Furthermore, the terms of that lease, if it is valid, grant exclusive rights to conduct banking business on the North Terrace campus of the University to State Bank, save for a Commonwealth Bank agency in the University post office premises, a credit union agency in the University Staff Association area, and save for the University Union Building. But as I have said, the University Union was not prepared to treat with ANZ. It follows that resolution (c) of the resolutions passed by the University Council on 11 December 1992 was from the start incapable of fulfilment in that "management" could not, without breaching the terms of the purported lease, grant alternative accommodation to ANZ. 9. Having exhausted its remedies outside of taking legal action, the ANZ then instituted the present proceedings on 12 January 1993. In view of the imminence of the commencing date of the purported lease, and the expiration of ANZ's existing lease, the matter was dealt with under Rule 50, and ordered for early trial. 10. In their Statement of Claim, the plaintiffs plead that the purported lease is void on two grounds, namely, that entry into the lease was ultra vires, having regard to the relevant provisions of the University of AdelaideAct, and alternatively, that it was entered into by the Registrar and/or Deputy Registrar of the University without the authority of the University. 11. As to the question of alleged want of authority on the part of the Registrar or Deputy Registrar, the University has pleaded in its defence that at a meeting of the University Council held on 12 February 1992, the Council resolved, insofar as it was necessary to do so, and notwithstanding its resolution of 11 December, to ratify the Registrar's actions in executing the purported lease. When the case was opened, Mr Besanko of counsel for ANZ, indicated that in view of the resolution of 12 February, the plaintiffs no longer contended that there was a want of authority on the part of the Registrar or Deputy Registrar in executing the purported lease. Putting aside the question of the plaintiffs' standing, which, for reasons which will appear, although pleaded, has not been argued, this left the sole issue for the determination of the Court the contention of the plaintiff that the grant of the lease was ultra vires, having regard to the University of Adelaide Act1971 ("the Act"). 12. In order to understand the contention that the purported lease is ultra vires, it is necessary to set out s.4 of the Act:
    "4.(1) The University shall continue as a body corporate under
    the name "The University of Adelaide".
    (2) The University is invested with full juristic capacity and
    unfettered discretion, subject to the law of this State, to
    conduct its affairs in such manner as it thinks fit, except that
    the University shall not alienate (otherwise than by way of
    lease for a term not exceeding twenty-one years) mortgage or
    charge any of its real property, without the approval of the
    Governor, or where such approval has been given, otherwise than
    in accordance with terms and conditions stipulated by the
    Governor.
    (3) The University shall not, without the approval of the
    governor, grant a lease in respect of any of its property unless
    the lease provides for the payment to the University of an
amount of rental that is the maximum reasonably obtainable." 13. Put shortly, the plaintiffs' claim is that, it being conceded that the University did not obtain the approval of the Governor for the purported lease, the University did not comply with s.4(3), in that the rental payable pursuant to the purported lease was not "the maximum reasonably obtainable". 14. During the last year of its tenancy, ANZ has been paying rent on the basis of an annual rental of $112,000. The annual rent payable by State Bank pursuant to the purported lease is set at the same figure, that is to say, $112,000, subject, however, after the first year, to review in accordance with the terms of that lease. In alternate years commencing in 1994, the annual review takes the form of an increase calculated by reference to movements in the Consumer Price Index. In alternate years commencing in 1995, the review takes the form of an assessment of current market rental value. 15. Evidence called on behalf of ANZ was to the effect that, particularly given the exclusivity provisions of the purported lease, if it had been offered the opportunity of leasing the premises on similar terms, it would have been prepared to pay a minimum starting rental of at least $150,000 per annum. ANZ complains that it was not given the opportunity to compete or negotiate for a renewal of the lease, or for the grant of a fresh lease, that no enquiry was made of ANZ as to what rental it would be prepared to pay to remain in occupation of the premises, and that so far as it was aware, no market valuation of the rental obtainable for the premises was undertaken by the University. ANZ further asserts that the premises were not put out to tender and that State Bank was the only organisation approached regarding the rental it would pay. 16. In its defence, the University admits that it did not approach ANZ to ascertain what rent it would be prepared to pay to remain in the premises, and admits that the lease of the premises was not put out to tender. It asserts that it did obtain "market valuations" before entering into the purported lease with State Bank, but given that no discovery was made of any such market valuations, it is not clear to me what credence should be placed upon that plea. The University pleads further in its defence that- It was desirable that the State Bank, which has been the first defendant's banker since late 1984, should have banking premises on the first defendant's North Terrace campus", and that in determining the "maximum reasonably obtainable" rental, it was entitled to take into account the benefits accruing to the University as a result of its relationship with State Bank. Those benefits were said to include concessions made by State Bank in relation to interest and other charges on accounts with it, and the provision of loan moneys on favourable terms for "major and other transactions undertaken" by the University, together with financial and other support by reason of the provision of equipment, donations, prizes and the like. 17. Consistently with that plea, counsel for the University, Mr Nosworthy, cross examined the witness called for ANZ, Mr Frank Fragnito, the District Sales and Service Manager of ANZ, in an endeavour to demonstrate that ANZ had been less than generous in its concessions to the University, and had not matched the supposed munificence which characterised the dealings of State Bank with the University. 18. As the trial proceeded, I became increasingly concerned that it was degenerating into a comparison of the benefits offered to the University by each of the two banking institutions, a matter which, as I saw it, was not germane to the question at issue. Unless it was suggested, which was not the case, that State Bank would withdraw the various benefits which it offered to the University if it did not obtain the lease in question, the level of those alleged benefits seemed to me to be irrelevant. The sole question for the Court to consider as to this aspect of the matter was whether or not the amount of the rental obtained by the University in its dealings with State Bank was "the maximum reasonably obtainable". It is highly doubtful that the supposed collateral benefits other than rental could be taken into account in determining whether the University had satisfied its obligations under s.4(3) of the Act. The sub-section refers to "rental", not to a package including alleged benefits other than rental. 19. After the first two days' hearing, it seemed to me that the trial might be expedited if the parties addressed, as a separate and discrete issue, a question of law which, if it was answered in favour of the defendants, would determine the litigation. After I had raised the matter with counsel, they agreed to proceed in that way. Counsel then addressed the Court on the following issue: "Whether, assuming but without deciding at this stage that the lease dated 7 October 1992 granted by the University to the State Bank, does not provide for payment to the University of an amount of rental that is the maximum reasonably obtainable within the meaning of s.4(3) of the University of Adelaide Act 1971, the lease is, in that event, void or voidable, and if the latter, at whose instance?" 20. To pose the question in that way is to lay bare the essential legal issue in the case, that is, whether or not a lease, assumed for the purposes of the argument to be at a rental less than the "maximum reasonable obtainable", is outside of the power of the University and, therefore, ultra vires and void, or whether it is within power and, therefore, a valid lease, although other consequences might follow from the breach of the statutory provisions occasioned by its grant. 21. One way of approaching the question as formulated is to determine whether the requirements of s.4(3) are mandatory, in the sense that they must be followed if the power is to be validly exercised, or directory, in the sense that they direct the manner in which the power is to be exercised. It has been said that the language of "mandatory" or "directory" is unhelpful (see the remarks of Debelle J In the matter of the petition of Gregory James Finlayson to Her Excellency the Honourable Dame Roma Mitchell AC DBE, Visitor to the Flinders University of South Australia, (unreported), 23.1.92, Judgment No S3235.) Be that as it may, it is clear that whatever labels are used, the matter comes down to a question of statutory construction, as to which I bear in mind the following observation by McHugh JA in ABC v Redmore Pty Ltd (1987) 11 NSWLR 621 at 634:
    "Courts no longer declare void a contract which contravenes a
    statutory provision unless, as a matter of construction, the
    statute was intended to have that effect. The existence of the
    intention is to be ascertained by reference to the language of
    the statute, its subject matter and objects, and the
    consequences for the parties of holding void every contract
    which contravenes the statute." 22. In his very thorough and helpful argument, Mr Besanko took the Court to the corresponding provisions of the earlier Acts of Parliament pursuant to which the University was constituted, in particular to the Act under which the University was first incorporated and endowed, being Act No 20 of 1874, and to the Act which repealed and in somewhat different form re-enacted the 1874 Act, namely, the University of Adelaide Act 1935-1936. 23. The 1874 Act relevantly provided (s.(1)):
     "... the said University ... shall be able and capable in law
    to grant, demise, alien (sic), or otherwise dispose of, all or
    any of the property, real or personal, belonging to the said
    University and also to do all other matters and things
    incidental or appertaining to a body politic and corporate:
    Provided always, that until the senate of the said University
    shall have been constituted as is herein enacted, the said
    University shall consist of a council only: Provided further,
    that it shall not be lawful for the said University to alien,
    mortgage, charge, or demise, any lands, tenements, or
    hereditaments, of which it shall have become seized, or to which
    it may become entitled by grant, purchase, or otherwise, unless
    with the approval of the Governor of the said Province for the
    time being, except by way of lease shall be made, in and by
    which there shall be reserved during the whole of the term, the
    highest rent that can be reasonably obtained for the same,
    without fine." 24. The University of Adelaide Act 1935-1936 provided:
    "4.(3) The university shall be a body politic and corporate by
    the name of "The University of Adelaide" and by that name-
    (a) .......
    (d) shall be capable in law to take, purchase, and hold all
    personal property whatsoever:
    (f) shall, subject to subsection (4), be capable in law to
    grant, demise, alien, or otherwise dispose of, all or any of the
    real or personal property belonging to the university:
    (g) ...
    (4) The university shall not alien, mortgage, charge, or demise
    any lands, tenements, or hereditaments of the university unless
    with the approval of the Governor except by way of lease for any
    term not exceeding twenty-one years from the time when the lease
    is made in and by which there is reserved during the whole of
    the term, the highest rent that can be reasonably obtained for
the same, without fine." 25. It will be seen that the 1935-1936 Act did not carry forward the words "shall not be lawful" appearing in the 1874 Act. In the 1874 Act, the restriction on leasing which is the precursor to s.4 of the present Act, is expressed as a proviso to what would otherwise be a plenary grant of power of holding and disposal of land. The words "subject to subsection (4)" where they appear in s.4(3) of the 1935-1936 Act seem to me to have much the same effect. In both instances, the qualifications upon the otherwise plenary power of holding and disposal of land, might arguably lend themselves more readily to a construction that the qualification identified a truly mandatory exception which, when considered apart from other considerations, might lead to the view that where the qualification applied there was an absence of power. 26. S.4 of the present Act is under the heading "Continuance and Powers of University". However, pursuant to s.19(3) of the Acts Interpretation Act1915, the heading to a section does not form part of the Act. 27. In turning to the content of s.4, the words in sub-section (2) "full juristic capacity and unfettered discretion", standing alone, confer very wide powers, limited only by reference to the general law. Following those words are the words "except that the University shall not alienate ...". Apart from other considerations which may tend to the contrary, it is at least arguable that the exception subtracts from the otherwise full juristic capacity conferred by the preceding words, and in that sense, identifies an absence of power rather than a direction as to the manner of its exercise. Against that, however, the words "shall not alienate", tend to identify the manner of exercise of a power. 28. Importantly, however, the sub-clause in question, namely, sub-section

(3), is not expressed as part of an exception to full juristic capacity. Given the manner in which the sections are laid out, the word "except" and the words following it in sub-section (2), cannot qualify the content of sub-section (3). 29. It is true that the opening words of sub-section (3), namely, "the University shall not..." are emphatic. As to the use of the word "shall", s.34 of the Acts Interpretation Act provides: "Where, in any Act passed after the first day of January, 1873, the word "may" is used in conferring a power, it implies that the power may be exercised or not, at discretion; and where, in any such Act the word "shall" is used in conferring a power, it implies that the power must be exercised." 30. That section does not, however, take effect so as to compel the conclusion that where the word "shall" is used it necessarily confers a power. The stipulation that the power must be exercised, applies only where the word "'shall' is used in conferring a power", so that one must first determine, before the section can be of application, whether the word is used in that way. The section therefore begs the question at issue in this case, and does not assist in its solution. 31. Resting, therefore, on the language of the section alone, it does not seem to me that there is any clear indication in the language of s.4 to suggest that sub-section (3) has a mandatory effect, and if anything, the internal indications in the section tend towards the view that sub-section (3) is directory. As to the historical comparison, it is sufficient to say that it does not, in my opinion, serve to alter that conclusion one way or the other. 32. The language of s.4 must be construed having regard to the scope and purpose of the Act as a whole. In that regard, to the observations of McHugh JA in ABC v Redmore Pty Ltd which I have cited above, may be added a reference to the remarks of Mason J in Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 at 423:
    "The principle that a contract the making of which is expressly
    or impliedly prohibited by statute is illegal and void is one of
    long standing but it has always been recognized that the
    principle is necessarily subject to any contrary intention
    manifested by the statute. It is perhaps more accurate to say
    that the question whether a contract prohibited by statute is
    void is, like the associated question whether the statute
    prohibits the contract, a question of statutory construction and
    that the principle to which I have referred does no more than
    enunciate the ordinary rule which will be applied when the
    statute itself is silent upon the question. Primarily, then, it
    is a matter of construing the statute and in construing the
    statute the court will have regard not only to its language,
    which may or may not touch upon the question, but also to the
    scope and purpose of the statute from which inferences may be
    drawn as to the legislative intention regarding the extent and
    the effect of the prohibition which the statute contains." 33. That the University of Adelaide Act 1971 perpetuates the corporate personality of the University and makes provision for its governance, is clear enough. However, the construction of those parts of s.4 as touch on the ability of the University to deal with real property, take their colour from the fact, as was pointed out by counsel during the course of argument, that from its early days, the University was endowed with substantial holdings of land, part of which comprised the North Terrace campus, and that it continues to enjoy substantial and diverse holdings of land. Given the undoubted fact that the University is a public institution whose operations are intended to benefit all of the inhabitants of the State, the evident purpose of those provisions of s.4 which touch on the powers of the University to deal with real property appears to me to be two-fold. 34. The restraint, which finds expression in ss.(2), on certain dealings in real property, other than with the approval of the governor, operates to keep intact the land holdings of the University, and to render dealings which could result in their dissipation subject to scrutiny by the Governor in the public interest. Ss.(3), on the other hand, has the effect of obliging the University, in those cases where it is empowered to grant a lease without the approval of the Governor, which, having regard to ss.(2), could only be a lease for a term of less than 21 years, to do so only on terms which, if it was a commercial enterprise, might fairly be regarded as commercially advantageous. The provisions in ss.(3) permitting a lease which may not provide for payment of the maximum reasonably obtainable rental, with the consent of the Governor, are a recognition of the fact that there may be occasions when the public interest would be served by permitting a lease on what might not be the most commercially advantageous terms. 35. The requirement of public scrutiny of the affairs of the University is emphasised by reference to s.12(1)(b) of the Act, pursuant to which five members of the Council are to be elected by the Parliament of South Australia, and s.25 under which the Council must make an Annual Report of the proceedings of the University to the Governor which in turn, must be laid before Parliament. 36. Given those matters, the question arises whether there is anything in the objects and purposes of the Act which would compel the view that a lease given other than for a rental that is "the maximum reasonably obtainable" should be held to be void. 37. In addressing that question, counsel for each party referred to the decision of the High Court in ABC v Redmore Pty Ltd (1989) 84 ALR 199, 166 CLR
454. I have already cited from the judgment of McHugh JA, sitting in the Court of Appeal of New South Wales, when it dealt with the same case. 38. Put shortly, the question in that case was whether the Australian Broadcasting Commission was bound by a tenancy agreement relating to premises of which the respondent Redmore Pty Ltd was landlord, on the assumption that its entry into the agreement was contrary to the provisions of s.70 of the Australian Broadcasting Corporation Act 1983 (Cth). S.70 provided:
    "70(1) The Corporation shall not, without the approval of the
    Minister-
    (a) enter into a contract under which the Corporation is to pay
    or receive an amount exceeding $500,000 or, if a higher amount
    is prescribed by the regulations, that higher amount; or
    (b) enter into a contract or arrangement with another person
    under which the other person agrees to acquire real or personal
    property to be leased, or let on hire, to the Corporation.
    (2) Paragraph (1)(a) does not apply in relation to the receipt
    by the Corporation of an amount for the sale or other
disposition of broadcasting programs or television programs." 39. It was common ground in that case that the alleged agreement for lease between the parties provided for the payment by the ABC of an amount in excess of $500,000, and that the ABC purportedly entered into the agreement without the approval of the Minister. 40. The High Court, by a majority (Mason CJ, Dean and Gaudron JJ) upheld the decision of the Court of Appeal of New South Wales which in turn had dismissed an appeal against the decision of the learned trial judge (Bryson J), declaring that there was a binding agreement, notwithstanding the absence of the approval of the Minister. During the course of the judgment of the majority in the High Court appears the following passage (84 ALR 201):
    "As the judgments in the courts below demonstrate, the question
    whether s.70(1) should be construed as confining power or as
    directory of the manner of its exercise is a finely balanced
    one. The words of the sub-section are not compelling either
    way. In strict terms, they are directory. They speak of the
    exercise ("shall not ... enter into a contract"), rather than
    the existence, of power. Their direction is to the ABC and not
    to an innocent outsider having contractual dealings with the
    ABC, who would be likely to act on the basis that the ABC would
    have complied with any statutory duty to obtain the approval of
    its responsible Minister before purporting to enter into a
    contract of a kind which required such approval. In that
    regard, it is relevant to note that the sub-section neither
    requires that the Minister's approval be in writing nor
    establishes any procedure by which a person dealing with the ABC
    can ascertain whether the Minister has given his approval to the
    precise terms of a particular contract. Nor do the words of
    s.70(1) either spell out the effect on third parties of a
    failure by the ABC to observe its statutory duty to obtain the
    Minister's prior approval or speak in terms which would be
    appropriate to refer to a purported or ineffective entry into a
    contract. If the statutory direction to the ABC not to enter
    into a contract of the specified kind without the approval of
    the Minister has the effect either of confining the actual
    powers of the ABC or of invalidating any contract with an
    innocent outsider entered into otherwise than in compliance with
    its terms, it must be by reason of a legislative intent to be
    discerned in the words of the sub-section construed in the
    context of the Act as a whole." 41. The majority went on to hold that the words of s.70(1) were directory only, and that (203):
    "...the failure of the ABC to obtain the prior approval of the
    Minister did not have the effect that the making of the contract
    was ultra vires the ABC. Nor did it have the effect that the
contract was illegal or unenforceable." 42. While it is true that every statute has to be considered according to its own terms, and the decision in ABC v Redmore Pty Ltd could not in any sense be determinative of the construction to be placed on s.4 of the Act here in question, the approach adopted by the majority in that case is of some assistance in dealing with the construction of the relevant provisions of the University of Adelaide Act. 43. It will be seen from the passage which I have cited from the judgment of the majority that they observed that the words of the sub-section there in question- "...are not compelling either way. In strict terms, they are directory. They speak of the exercise .... rather than the existence, of power." The same comment could be made of s.4(3) of the University of Adelaide Act. 44. When they go on to refer to the fact that there was nothing in the statutory provisions there being considered which established any procedure by which a person dealing with the ABC could ascertain whether the Minister had given his approval, a similar comment might be made as to the operation of s.4(3) of the University of Adelaide Act. It is in the nature of things that it would be almost impossible for persons doing business with the University to know whether the University had taken steps to obtain the maximum reasonably obtainable rental, and whether or not, for example, some other person with whom the University, for some reason, did not wish to do business, might have offered a higher rent. Indeed, as Ms Branson of counsel for the University, pointed out, a person doing business with the University would be in a somewhat more difficult position than a person doing business with the ABC, in that, notwithstanding the absence of machinery in the Australian Broadcasting Act (Cth), a specific enquiry could always be made as to whether approval to a contract to be entered into by the ABC had been given by the Minister, and a definite answer given one way or the other. On the other hand, the question of what is the "maximum reasonably obtainable" rental, is more susceptible of debate. The majority go on to observe that the words of s.70(1) of the Act in question in ABC v Redmore Pty Ltd did not- "spell out the effect on third parties of a failure by the ABC to observe its statutory duty ... or speak in terms which would be appropriate to refer to a purported or ineffective entry into a contract." The same observation can be made as to s.4(3) of the University of Adelaide Act. 45. While no two cases are alike, and it is rarely that the reasoning applied in one case involving a question of statutory construction may properly be applicable in another, it does seem to me that the approach adopted by the majority of the High Court, and by the Court of Appeal of New South Wales in ABC v Redmore Pty Ltd, goes some way towards illuminating the correct path to follow in construing the section in question in this case. 46. Quite apart from other factors, the evident inconvenience of construing the section in the manner contended for by the plaintiffs is a strong argument against accepting the proposition that a lease entered into contrary to the provisions of s.4(3), is void or unenforceable. I have already indicated the difficulty which such a construction would pose for persons negotiating with the University. 47. Given that I have identified as one of the purposes intended to be served by s.4(3) that it goes towards ensuring that a dealing of the kind contemplated is on commercially advantageous terms, a construction which would render the operation of the section commercially impracticable would clearly not be consistent with that purpose. 48. It was suggested during the course of argument that if the Court was to fail to hold a lease void where there had been a failure to comply with s.4(3), there would be no effective sanction to ensure that the University obtained the maximum reasonably obtainable rental. That is certainly a consideration to be taken into account in construing the sub-section. But it cannot be determinative of the question at issue. If after taking into account all of the matters relevant to the process of construction, the Court is led to a contrary view, that view must prevail. Furthermore, there are provisions in the Act which would operate as some sort of safeguard. I have already referred to provisions which result in a level of public scrutiny of the affairs of the University. Furthermore, it is not without significance in this connection that the report required by s.25(2) must include an audited account of the income and expenditure of the University. 49. I have carefully considered all of the arguments put forward by Mr Besanko, but in my opinion the construction urged by the plaintiffs would render the application of the section so uncertain, and put persons treating with the University for the grant of a lease in such a difficult position, that it is proper to conclude that it cannot have been the intention of Parliament to render leases entered into in contravention of the terms of s.4(3) of the Act void or unenforceable. 50. The action must be dismissed.