Epworth Group Holdings Pty Ltd v Permanent Custodians Limited - [2010] SASC 327

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
EPWORTH GROUP HOLDINGS PTY LTD v PERMANENT CUSTODIANS LIMITED
[2010] SASC 327
Judgment of The Honourable Chief Justice Doyle
30 November 2010
LANDLORD AND TENANT - RETAIL AND COMMERCIAL TENANCIES LEGISLATION - OBLIGATIONS, PROHIBITED TERMS AND PROTECTION FOR LESSEES - MINIMUM TERM OF LEASE AND RENEWAL OF TERM
REAL PROPERTY - TORRENS TITLE - GENERAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF LEGISLATION - GENERALLY
REAL PROPERTY - TORRENS TITLE - GENERAL PRINCIPLES - INCONSISTENCY WITH OTHER LEGISLATION
REAL PROPERTY - TORRENS TITLE - LEASES - UNREGISTERED LEASE FOR TERM EXCEEDING STATUTORY LIMIT OF EXCEPTION TO INDEFEASIBILITY
REAL PROPERTY - TORRENS TITLE - MORTGAGES, CHARGES AND ENCUMBRANCES - POWERS AND REMEDIES OF MORTGAGEE - POSSESSION - RECOVERY UNDER CLAUSE ENTITLING MORTGAGEE TO POSSESSION UPON DEFAULT OF MORTGAGOR
Plaintiff lessee of office premises - written but unregistered lease - defendant mortgagee in possession of the property containing the leased premises - mortgage registered - whether mortgagee bound by the unregisterd lease - whether unregistered lease prevails over the registered mortgage by operation of s 69(h) of the Real Property Act 1886 (SA) (RPA) - whether Retail and Commercial Leases Act 1995 (SA) creates an exception to the principle of indefeasibility under the RPA - whether retail shop lease for a term of five years prevails over the defendant mortgagee's registered interest - action dismissed.
Retail and Commercial Leases Act 1995 (SA) s 3(1), s 4(2), s 16, s 20A, s 20B, s 20B(2); Real Property Act 1886 (SA) s 6, s 69, s 69(a), s 69(h), s 118, s 119; Retirement Villages Act 1987 (SA) s 19, referred to.
R M Hosking Properties Pty Ltd v Barnes [1971] SASR 100, applied.
The South-Eastern Drainage Board (South Australia) v The Savings Bank of South Australia (1939) 62 CLR 603, discussed.
Mercantile Credits Limited v The Shell Company of Australia Limited (1976-1977) 136 CLR 326, considered.

EPWORTH GROUP HOLDINGS PTY LTD v PERMANENT CUSTODIANS LIMITED
[2010] SASC 327
Civil

DOYLE CJ: This case raises a point of some significance under the Retail and Commercial Leases Act 1995 (SA) (the RCL Act).
The plaintiff (Epworth Group) is the lessee of office premises in a city building. It holds those premises under a written but unregistered lease from Y H Epworth Pty Ltd (the registered proprietor).
Permanent Custodians Limited (Permanent) is a mortgagee in possession of the property on which stands the building containing the leased premises. The mortgage is registered on the registered proprietor’s title pursuant to the Real Property Act 1886 (SA) (the RPA). Permanent asserts that it is not bound by the lease because it is unregistered.
Epworth Group contends that its unregistered lease prevails over the registered mortgage by operation of s 69(h) of the RPA. If that argument fails, it relies on submissions based on the RCL Act.
Epworth Group claims that the lease is a retail shop lease for the purposes of the RCL Act. Under the RCL Act, the term of a retail shop lease must be for at least five years. The term of such a lease is extended (if not for five years) to bring the term or aggregate term to five years: s 20B(2) of the RCL Act.
Mr Stevens, counsel for Epworth Group, claims that, by necessary implication, the RCL Act provides that a retail shop lease for five years prevails against or has priority over registered interests under the RPA, even though the retail shop lease is not registered on the relevant title. The RCL Act creates an exception to the principle of indefeasibility under the RPA.
The main issue is whether the retail shop lease for a term of five years prevails, although unregistered, over the interest of Permanent.
Facts
The trial of the action proceeded before me on the basis of documents tendered by consent, and certain affidavits tendered by consent. No oral evidence was given. By the time the parties moved to their addresses there was really no factual dispute of any great significance.
I make the following findings of fact on the basis of the exhibits before me.
The registered proprietor owns land at 33 Pirie Street, Adelaide. A building known as Epworth Building is situated on the land. The building is a commercial office building. As I understand it, it contains a number of separate offices which are occupied by a number of different tenants.
On 15 August 2008 the registered proprietor entered into a Memorandum of Lease with Epworth Group. The term of the lease was for two years and one day commencing on 18 August 2008 and expiring on 19 August 2010, with five rights of renewal, each of one year. The premises the subject of the lease are an office known as Suite 8 on the ground floor of Epworth Building. The lease is in registrable form but was never registered. Epworth Group did not lodge a caveat in respect of its interest under the lease.
On 18 August 2008 the registered proprietor consented to Epworth Group subleasing the premises to Commercial & General Law (SA) Pty Ltd (C & G Law). The sublease was not tendered before me. I have no evidence of its terms. I find that C & G Law conducts a legal practice from the premises.
The lease of the premises is for their use as legal offices. It is common ground that the lease is a retail shop lease as defined in s 3(1) of the RCL Act, even though the premises are sublet to C & G Law. I gather, therefore, that I am possibly concerned with two retail shop leases, that from the registered proprietor to Epworth Group and that from Epworth Group to C & G Law.
On 3 March 2009 the registered proprietor granted a mortgage over the land to Permanent. The mortgage is registered under the RPA.
On 1 October 2009 Permanent appointed Receivers and Managers of the registered proprietor’s undertaking, property and assets. The appointment was made in exercise of powers granted to Permanent by a charge granted by the registered proprietor. In exercise of the powers conferred by the mortgage, Permanent also appointed the same persons as receivers and managers of the mortgaged property.
On 18 March 2010 Epworth Group gave to the registered proprietor notice in writing under the lease of its request to rent the premises for a further period of one year, after the expiry of the initial term of two years and one day. By Clause 4.9 of the lease Epworth Group had a right upon request by written notice to lease the property for a further period of one year, and the notice given complied with the requirements of Clause 4.9. The case was conducted on the basis that as from 20 August 2010 a lease for a period of one year came into force.
On 24 June 2010 Permanent served on Epworth Group an undated Notice to Vacate and Deliver Up Possession of the Premises. This is not disputed, but the Notice was not proved before me.
On 16 September 2010 Permanent entered into possession of the registered proprietor’s premises on the basis of a default under the mortgage by the registered proprietor. Permanent did not purport to enter into possession of the premises leased by Epworth Group and occupied by C & G Law (the case was conducted on the basis that C & G Law remained in occupation of the premises).
By letter dated 24 September 2010 Permanent served on Epworth Group and on C & G Law a “Notice to Vacate and to Deliver Up Possession of Premises” dated 22 September 2010, the Notice relating to Suite 8, ground floor, Epworth House. The Notice was given on the basis that Epworth Group leased the premises under the lease dated 15 August 2008, the lease was unregistered, C & G Law was in occupation by, through or under Epworth Group, and on the basis that Permanent was not bound by the lease as Permanent’s mortgage was registered, it had not consented to the lease and the unregistered lease was for a term exceeding one year, and Permanent had not consented to the lease nor to the occupation of the premises.
Epworth Group admits that the registered proprietor is in default under the mortgage. Permanent has made no demand on Epworth Group or on C & G Law for payment of rent under the lease.
Issues not pursued
Some of the tendered documents were relevant to issues that were not pursued in the end. I will deal briefly with them.
By Clause 2.1 of the lease from the registered proprietor to Epworth Group, Epworth Group was entitled to set off against payments of rent “…any legal fees incurred or to be incurred to Commercial & General Law by any of [certain named companies and persons]”. Evidence was led to show that Epworth Group had, by virtue of this arrangement, paid all rent due to the registered proprietor. In the end, no separate argument was based on this, but I am prepared to accept that no rent at any relevant time was owing by Epworth Group to the registered proprietor.
Mr Stevens asserted at various stages that Permanent had consented in writing to the lease from the registered proprietor to Epworth Group, before Permanent’s mortgage was registered. He relied on this as a basis for invoking s 118 of the RPA to support a conclusion that the lease was “valid and binding against …” Permanent. This led to a rather confusing paper trail in search of the suggested consent in writing to the lease. I am not persuaded that Permanent did consent in writing to the lease. In any event, s 118 is directed to a situation in which a lease has been registered on the title with the consent in writing of the mortgagee. That is not this situation. Mr Stevens appeared not to pursue the argument in the end, and in my opinion it lacks any substance.
I am prepared to find that before its mortgage was registered, Permanent was aware that a number of the offices in the building were occupied by tenants, some of whose leases were short‑term and unregistered, and that a number of them were soon to expire. There is plenty of evidence to that effect.
However, there is no evidence to support a finding that Permanent had notice of the fact that C & G Law was occupying the premises before Permanent’s mortgage was registered, nor did Permanent have notice of its interest as tenant under the lease. The same applies to the lease and interest of Epworth Group.
Mr Stevens did not mount an argument based on fraud, in the sense in which that term is deployed under the RPA. In the end, the issue of notice appears to me to go nowhere.
There was no complaint by Permanent that Epworth Group was in breach of the terms of its lease.
The points of claim filed by Epworth Group raised some issues that were not pursued at all in argument. The pleading contained an assertion that Epworth Group had an equitable lease or an equitable interest under the unregistered lease. That may be, but that goes nowhere. An argument that Permanent was estopped from enforcing the terms of its mortgage was not pursued. Some rather general allegations that Permanent was bound by the lease to Epworth Group were also not pursued.
The effect of the RPA
Permanent has a registered mortgage over the land in question. The registered proprietor is the mortgagor. The registered proprietor is in default under the mortgage. Permanent is entitled to possession of the premises under the mortgage.
Epworth Group has an interest in part of the premises as lessee under the lease. Its lease is in registrable form, but is unregistered. When Permanent’s mortgage was registered, Epworth Group had an interest under the lease for a term of two years.
As Permanent has a registered mortgage, the starting point is that under the RPA, and by virtue of s 69 in particular, its title is “absolute and indefeasible”. However, it may be that strictly the issue as between Permanent and Epworth Group is one of priority.
Epworth Group makes no suggestion of fraud for the purposes of s 69(a) of the RPA.
By s 69(h) of the RPA a qualification to Permanent’s absolute and indefeasible title arises:
(h)A lease or letting for not more than a year
where at the time when the proprietor becomes registered a tenant shall be in actual possession of the land under an unregistered lease or an agreement for a lease or for letting for a term not exceeding one year: In which case the title of the tenant under such lease or agreement shall prevail.
When Permanent’s mortgage was registered, assuming one treats Epworth Group as in actual possession, it was in possession under an unregistered lease for a term exceeding one year. Accordingly, it cannot claim the benefit of this provision.
Section 119 of the RPA provides:
119—Lease for one year need not be registered
Every registered dealing with land shall be subject to any prior unregistered lease or any agreement for lease or for letting for a term not exceeding one year to a tenant in actual possession thereunder: Provided that no right or covenant to purchase the freehold contained in any such unregistered lease or agreement, nor any right or covenant for renewal of such lease or agreement shall be valid as against any subsequent purchaser of the reversion, lessee, mortgagee, or encumbrancee, unless such lease or agreement be registered or protected by caveat.
Once again, Epworth Group did not have an unregistered lease for a term “not exceeding one year”. Nor did Epworth Group protect its right of renewal by caveat.
Section 118 of the RPA provides:
118—Leases not to bind non-consenting mortgagees or encumbrancees
No lease of mortgaged or encumbered land shall be valid and binding against any mortgagee or encumbrancee of the land unless such mortgagee or encumbrancee shall have consented in writing to such lease prior to the same being registered.
In submissions Mr Stevens at one stage claimed that Permanent had consented in writing to the lease to Epworth Group. I am not satisfied that the documents to which he referred amounted to a consent in writing, as distinct from an acknowledgement that Suite 8 might be one of the parts of the premises occupied by a tenant. But that is neither here nor there. Section 118 refers to a lease that is registered with a prior written consent from a mortgagee. There is no suggestion that that happened here.
I consider that the situation is covered by the following observations by Walters J in R M Hosking Properties Pty Ltd v Barnes [1971] SASR 100 at 104-105 where his Honour said:
It appears to me that the provisions of s 69 (viii) are a necessary corollary to s 119 which provides that “every registered dealing with land shall be subject to any prior unregistered lease or agreement for lease or for a letting for a term not exceeding one year to a tenant in actual possession thereunder”. This section does not operate to prevent the making of short leases, but it recognises only leases for a term not exceeding one year. In enacting the section, the legislature has provided protection for a lessee in actual occupation under an unregistered lease for a term not exceeding one year, and by the proviso to the section it has also provided that “a right or covenant of renewal for such lease” may be protected by caveat. To my mind, therefore, the language of s 119 conveys the implication that if a lessee in actual occupation under a lease for a term in excess of one year is to have the benefit of the Act, that lease must be registered. Accordingly, I take the view that upon registration of the transfer by the Karasavases to the plaintiff, its title to the land became paramount over the interest of the defendants under the unregistered lease, and that the covenants contained in the lease, including the covenant granting the option for renewal, were not preserved.
If a right of renewal in an unregistered lease could prevail against the estate of a registered proprietor, then as Gibbs J points out in Friedman v Barret; Ex parte Friedman [1962] Qd R 498, at p 510, the title of the registered proprietor would be rendered “subject to rights of renewal that might be perpetual, although those rights were contained in an unregistered lease and were not protected by caveat”. That such a position could arise in the case of an unregistered lease for a term exceeding one year would in my opinion be entirely at variance with the interpretation to be ascribed to the provisions of s 69 (viii) and s 116 of the statute.
Section 69(viii) was materially the same as s 69(h). See also Mercantile Credits Limited v The Shell Company of Australia Limited (1976-1977) 136 CLR 326 at 340-341 Barwick CJ, at 344-346 Gibbs J and at 350-352 Stephen J.
The question of whether Permanent had notice of the interest of Epworth Group or that of C & G Law is not relevant. There is no suggestion of fraud.
There were no submissions before me on the question of whether it is necessary to give separate consideration to the sublease to C & G Law. All that is alleged in that respect is that the registered proprietor consented to Epworth Group subleasing the premises to C & G Law. If that sublease was for a term not exceeding one year then, when the registered proprietor granted the mortgage to Permanent, that sublease might have attracted the protection of s 69(h) and s 119 of the RPA. But the term of that sublease, if it was for one year, has expired by now, and accordingly C & G Law no longer has an interest entitled to priority over that of Permanent. I add that while the case was conducted before me on the basis that C & G Law was still in occupation of Suite 8, there was no evidence as to the basis of its occupation.
For these reasons I conclude that the interest of Permanent has priority over the interest of Epworth Group under the lease or C & G Law under any sub-lease, and that, subject to the impact of the RCL Act, Permanent is entitled to possession of Suite 8.
The RCL Act
The RCL Act applies to a retail shop lease as defined in s 3(1). The definition is as follows:
retail shop lease or lease means an agreement under which a person grants or agrees to grant to another person for value a right to occupy a retail shop for carrying on a business—
(a)     whether or not the right is a right of exclusive occupation; and
(b)     whether the agreement is express or implied; and
(c)     whether the agreement is oral or in writing, or partly oral and partly in writing
In the same section, “retail shop” is defined as follows:
retail shop means—
(a) business premises—
(i)at which goods are sold to the public by retail; or
(ii)at which services are provided to the public, or to which the public is invited to negotiate for the supply of services; or
(b) business premises classified by regulation as premises to which this Act applies,
but does not include business premises of a class excluded by regulation from the ambit of this definition.
The premises in question are business premises at which services are provided to the public. The RCL Act does not apply to a retail shop lease in the circumstances specified in s 4(2). None of those circumstances apply. The case proceeded on the basis that the lease by the registered proprietor to Epworth Group is a retail shop lease.
The purpose of the RCL Act is to regulate the relationship between landlords and retail tenants in a manner fair to each group. In moving the Second Reading of the Bill which is now the RCL Act (some amendments have been made) the then Attorney-General said (Hansard, Legislative Council, Wednesday 30 November 1994 pages 1010-1011):
The Bill focuses upon retail lease agreements and recognises the need for a regulatory framework which is fair to both landlords and to retail tenants. The Bill acknowledges the special relationship which exists between landlords and retail tenants by housing the provisions in a separate Bill.
There has been considerable consultation with industry in the preparation of this Bill. Both landlords and retail tenants were anxious for the legislation to be reviewed and have made a valuable contribution as a unified group to the review process.

The RCL Act relies on a mix of disclosure requirements, prohibition of unacceptable provisions, statutory provision for certain entitlements and statutory regulation of commonly encountered provisions. As I understand the RCL Act it assumes as background the common law and the law of landlord and tenant, but makes substantial alterations to their application to the subject matter.
Part 3 regulates the information that must be given to a lessee before the lessee enters into a retail shop lease. The disclosure obligations are quite extensive. Limits are put on any obligation to reimburse capital expenditure. The payment of premiums is prohibited. Section 16 contains the only allusion to the RPA that I have found. It provides:
16—Lease documentation
A retail shop lease is taken to include provision to the following effect:
(a) if the lease is not to be registered, the lessor must provide the lessee with an executed copy of the stamped lease within one month after the lease is returned to the lessor or the lessor's lawyer or agent following payment of stamp duty on the lease;
(b) if the lease is to be registered, the lessor must lodge the lease for registration within one month after the lease is returned to the lessor or the lessor’s lawyer or agent following payment of stamp duty on the lease and the lessor must provide the lessee with an executed copy of the stamped and registered lease within one month after the lease is returned to the lessor or the lessor’s lawyer or agent following registration of the lease.
Part 4 regulates the amount of security bonds and provides an administrative mechanism for dealing with disputes over the application of bond money.
Part 4A, inserted in 1997, deals with the term of a lease and renewal. Section 20A reflects the emphasis on achieving a fair balance between lessor and lessee. It provides:
20A—Objects
(1) The Parliament recognises that conflicts sometimes arise between a lessor’s expectation to be able to deal with leased premises subject only to the terms of the lease and a lessee's expectation of reasonable security of tenure.
(2) The objects of this Part are to achieve an appropriate balance between reasonable but conflicting expectations and to ensure as far as practicable fair dealing between lessor and lessee in relation to the renewal or extension of a retail shop lease.
Section 20B is significant in the present dispute. It relevantly provides:
20B—Minimum 5 year term
(1) The term for which a retail shop lease is entered into must be at least five years.
The term of a retail shop lease is worked out under this section on the assumption that any right or option of renewal or extension under the lease or a collateral agreement will in fact be exercised. However, a right or option of renewal or extension will not be taken into account if it is given after the lease is entered into.
(2) A lease is not invalidated by contravention of this section but the term of the lease is extended to bring the term (or aggregate term) to five years.
Example—
If a lease is entered into for a term of three years, its term is extended by two years to five years. If a lease is entered into for a term of two years with an option for a further one year after that initial two years, the term of the lease is extended to four years (with the option for a further one year after that initial four years).
This part also contains provisions that regulate the renewal of shopping centre leases, and conduct as between lessor and lessee when such a lease is about to expire. The rights conferred by Part 4A can be excluded only if the lease contains a “certified exclusionary clause”, which requires a certificate signed by a lawyer who is not acting for the lessor to the effect that the lawyer has given certain explanations to the lessee and that the lessee did not appear to be acting under coercion or undue influence.
Part 5 regulates payment of rent when a lessor has not completed obligations to fit out premises, and regulates also rental adjustments under a retail shop lease.
Part 6 regulates and controls the carrying out of alterations or refurbishments to leased premises if they are likely to affect adversely the business of the lessee.
Part 7 regulates the assignment of retail shop leases.
Part 8 includes further requirements for retail shopping centres.
As can be seen, the scheme is comprehensive. It aims to strike a fair balance between lessor and lessee. The minimum five year term is an important part of the scheme.
The effect of the RCL Act
The RCL Act applies to the lease by the registered proprietor to Epworth Group. The precise manner in which it applies is not entirely clear. My conclusion is that s 20B operates to extend the term of the lease to four years with a statutory option for a further one year, with a contractual entitlement to two further one year renewals.
Another possibility, which was not adverted to in submissions, is that s 20B does not apply to the lease in question because, assuming any rights of renewal are exercised, the term of the lease is seven years. However, as the case was conducted on the basis that the RCL Act does apply to the lease in question, I will proceed on that basis.
The next point to note is that the RCL Act says nothing about the relationship between its provisions and the RPA. I have referred already to the allusion to the RPA in s 16.
The issue under the RCL Act is this. The effect of the RPA (subject to the effect of the RCL Act) is to entitle Permanent to possession of the mortgaged property as against the registered proprietor, and also as against Epworth Group and C&G Law. Confining attention for the moment to the RPA, the registered mortgage held by Permanent prevails over or has priority over any leasehold interest held by Epworth Group or C&G Law.
But s 20B of the RCL Act has effect to give Epworth Group a statutory right under its lease from the registered proprietor to a term for at least four years and one day (commencing on 18 August 2008) with a right of renewal for one year. There is no doubt that Epworth Group has a lease from the registered proprietor and that by operation of the RCL Act that is the term of the lease.
Is the RCL Act to be interpreted as providing that the leasehold interest as extended is, although unregistered, a qualification to the indefeasibility of the mortgage granted to Permanent (qualifying s 69 of the RPA), or as creating a proviso to s 119 of the RPA?
As I understand him Mr Stevens contends that s 119 in particular is now to be read as if it said:
Every registered dealing with land shall be subject to any prior retail shop lease for the purposes of the Retail and Commercial Shop Leases Act or unregistered lease or any agreement for lease or for letting for a term not exceeding one year to a tenant in actual possession thereunder …
Is there an inconsistency between the RCL Act and the RPA, or at least the provisions adverted to, which is to be resolved by giving effect to the operation of the later RCL Act as an exception or qualification to these provisions of the RPA?
The consideration of these questions must take into account s 6 of the RPA which provides:
6—Laws inconsistent not to apply
No law, so far as inconsistent with this Act, shall apply to land subject to the provisions of this Act, nor shall any future law, so far as inconsistent with this Act, so apply unless it shall be expressly enacted that it shall so apply "notwithstanding the provisions of the Real Property Act 1886".
I turn to the RCL Act.
There is nothing in its purposes, objects or scheme that indicates an intention to create statutory rights for a lessee that prevail over the interest of a third party holding a registered interest under the RPA.
The speech of the Attorney-General when moving the Second Reading of the Bill indicates that the purpose of the Bill is to strike a balance as between landlord and tenant. So does s 20A, which is set out above. The absence of any reference to the RPA, apart from the allusion in s 16 of the RCL Act, is of some significance.
In my opinion the RCL Act is to be read as operating as between lessor and lessee, and as striking a balance between their interests. It is not to be read as intended also to confer on a lessee rights that would take priority over registered interests under the RPA, contrary to the provisions of the RPA.
To interpret the RCL Act in this way does not defeat its purpose. It does not give rise to contradictory statutory provisions. True, as this case illustrates, the holder of a registered interest (for example, a bona fide purchaser for value or a mortgagee) can exercise rights that will defeat the statutory term conferred by s 20B of the RCL Act. But if the purpose of the RCL Act is “fair dealing between lessor and lessee”, and does not include giving priority to a lessee over a registered interest under the RPA, then the purpose of the RCL Act is not defeated by acknowledging that that priority is not conferred. It is true that the situation might be exploited by a fraudulent lessor, for example, by granting a registered mortgage to another person with a view to that person exercising powers under the mortgage and evicting tenants. However, that possibility is not a reason to interpret the RCL Act in a different way.
Parliament could easily have made provision for the statutory term or interest to take priority. The Retirement Villages Act 1987 (SA) creates a statutory charge to secure repayment of a premium paid to the owner of a retirement village: s 19(3). Section 19(4) provides:
19—Contractual rights relating to repayment of premiums
…
(4) Despite the Real Property Act 1886, the charge referred to above ranks in priority to any other mortgage, charge or encumbrance over the land to which the charge relates.
A provision along these lines would have sufficed.
On this approach there is no direct conflict between the RCL Act, and s 20B in particular, on the one hand, and the provisions of the RPA on the other. Epworth Group has a lease with a statutory term under s 20B, and that term is enforceable as against the registered proprietor, but the leasehold interest with that term is not given any priority that it would not have under the RPA.
Mr Stevens referred to the reference to “statutory rights of security of tenure” in s 3(1) of the RCL Act. The provision is as follows:
statutory rights of security of tenure means the rights conferred on a lessee by Part 4A Division 2 and, if the retail shop lease relates to premises in a retail shopping centre, by Part 4A Division 3.
This provision does not assist his argument. It is clear reading the RCL Act as a whole that the reference is to rights conferred on the lessee as against a lessor, and to no more than that.
In short, there is no inconsistency between the RCL Act and the RPA. There is no indication in the RCL Act, or no implication from its terms, that it is intended to interfere with the priority of registered interests under the RPA.
On my approach Mr Stevens’ submissions fail at the first step. However, I accept his submission that s 6 is not an insurmountable object. This provision was considered by the High Court in The South-Eastern Drainage Board (South Australia) v The Savings Bank of South Australia (1939-1940) 62 CLR 603. Dixon J said that s 6 was to be applied as follows (at 625):
In interpreting any later enactment which might otherwise be construed as affecting land under the Act in a manner inconsistent with the Real Property Act, in order to give effect to sec 6 the court should, in the absence from the enactment of the prescribed words, treat the general expressions as not including land under the Act. But, if the later enactment contains clear language from which it is plain that its provisions were intended to apply to land under the Act and to apply in a manner inconsistent with the Real Property Act, then they must operate according to their meaning. For the later enactment of the legislature must be given effect at the expense of the earlier. But, unless it is found impossible to reconcile the later statute with sec 6, there is no room for the conclusion that the later Act must be regarded as meaning to operate upon land under the earlier Act and to do so inconsistently therewith.
It is not necessary to analyse the reasons of the other members of the High Court. It suffices to say that on my interpretation of the RCL Act there is no inconsistency at all, and there is no need for Permanent to invoke s 6 to support its arguments.
For those reasons the RCL Act does not prevent Permanent from enforcing its registered interest as against Epworth Group and C&G Law.
Procedural consequences
The proceedings were instituted on 14 October 2010, with a claim for an injunction to protect Epworth Group from being evicted from the premises. I granted an injunction pending trial, and having regard to the circumstances fixed an early date for the hearing of the action.
By its points of claim Epworth Group sought a series of declarations, the effect of them being that Epworth Group was entitled to possession of the premises that it leased as against Permanent.
I decline to make those declarations. Epworth Group is not entitled to the relief claimed. Its action should be dismissed.
By points of counterclaim Permanent counterclaimed a declaration that it is not bound by the lease, a declaration that it is entitled to possession of the premises, and an order that Epworth Group and C&G Law deliver up vacant possession of the premises. C&G Law was brought into the action as a second defendant by counterclaim.
Permanent is entitled to orders requiring Epworth Group and C&G Law to give up possession of the land occupied by them.
Permanent should submit proposed Minutes of Order disposing of the action and of the counterclaim. I will hear the parties on the question of costs.