Epworth Group Holdings Pty Ltd v Permanent Custodians Ltd - [2011] SASCFC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
EPWORTH GROUP HOLDINGS PTY LTD & ANOR v PERMANENT CUSTODIANS LTD
[2011] SASCFC 32
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Vanstone)
29 April 2011
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
Appeal from a decision to allow a registered mortgagee to take possession of premises the subject of an unregistered lease - whether an unregistered retail shop lease for a term of five years prevails over the interest of a registered mortgagee, for the purposes of the Real Property Act 1886 (SA) - whether the Retail and Commercial Leases Act 1995 (SA) creates an exception to the principle of indefeasibility under the Real Property Act.
Held: Appeal dismissed - the relevant provisions of the Retail and Commercial Leases Act do not confer on a lessee rights that would take priority over registered interests under the Real Property Act.
Retail and Commercial Leases Act 1995 (SA) s 3, s 16, s 20A, s 20B and s 20K; Real Property Act 1886 (SA) s 6, s 69(h), s 118 and s 119, referred to.
Epworth Group Holdings Pty Ltd v Permanent Custodians Limited (2010) 108 SASR 556; Breskvar v Wall (1971) 126 CLR 376; Gibbs v Messer [1891] AC 248; Bahr v Nicolay (No 2) (1988) 164 CLR 604; South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603, considered.

EPWORTH GROUP HOLDINGS PTY LTD & ANOR v PERMANENT CUSTODIANS LTD
[2011] SASCFC 32
Full Court Gray, Sulan and Vanstone JJ
GRAY J:
Introduction

This is an appeal from a decision to allow a registered mortgagee to take possession of premises the subject of an unregistered lease.
The primary issue arising on the appeal is whether an unregistered retail shop lease for a term of five years prevails over the interest of a registered mortgagee. To put the issue another way; do the provisions of the Retail and Commercial Leases Act 1995 (SA) create an exception to the principle of indefeasibility of title under the Real Property Act 1886 (SA).
Background
Y H Epworth Pty Ltd is the registered proprietor of land in the city of Adelaide. On this land is a building containing leased offices.
On 15 August 2008, Epworth Group Holdings Pty Ltd, the plaintiff and first appellant, entered into a memorandum of lease with Y H Epworth to lease office premises on the ground floor of 33 Pirie Street, Adelaide, known as Suite 8. The lease was for a period of two years and one day, commencing on 18 August 2008 and expiring on 19 August 2010. The lease included five rights of renewal, each for a one year period. The lease was unregistered. No caveat was lodged to protect the interest granted by the lease.
On 18 August 2008, Y H Epworth consented to Epworth Group subleasing Suite 8 to Commercial & General Law (SA) Pty Ltd, the second defendant by counterclaim and the second appellant.
On 3 March 2009, Y H Epworth granted a registered mortgage over the land at 33 Pirie Street to Permanent Custodians Ltd, the defendant and respondent. Y H Epworth defaulted under the mortgage. This default is not in dispute.
On 1 October 2009, Permanent Custodians used its powers under a charge granted in its favour by Y H Epworth, to appoint receivers and managers of Y H Epworth’s undertaking, property and assets. Permanent Custodians used its powers conferred by the mortgage to appoint the same receivers and managers as receivers and managers of the mortgaged property.
On 18 March 2010, Epworth Group gave Y H Epworth notice in writing of its intention to extend the lease for a further period of one year upon the expiry of the original term of two years and one day. The case at trial was conducted on the basis that a lease for a period of one year came into force on 20 August 2010.
On 24 June 2010, following the exercise of the first right of renewal, but prior to the commencement of the extended term, Permanent Custodians served notice on Epworth Group to vacate and deliver up possession of Suite 8.
On 16 September 2010, Permanent Custodians entered into possession of 33 Pirie Street, Adelaide, on the basis of the default by Y H Epworth under the mortgage. However, the sub-lessee, Commercial & General Law, remained in occupation of Suite 8. Permanent Custodians did not attempt at this time to enter into possession of Suite 8.
About eight days later, on about 24 September 2010, Permanent Custodians served a notice to vacate and deliver up possession of Suite 8 on both Epworth Group and on Commercial & General Law. The notice further asserted that Commercial & General Law occupied Suite 8 by, through or under the Epworth Group. The notice contained the grounds upon which Permanent Custodians claimed that it was entitled to possession of Suite 8. It was asserted that the lease between Y H Epworth and Epworth Group over Suite 8 was unregistered and was for a term longer than one year. It was further asserted that Permanent Custodians had not consented to the lease or the occupation of Suite 8 and that it was not bound by the lease by virtue of its subsequent registered mortgage over 33 Pirie Street.
Permanent Custodians did not and has not sought payment of rent from Epworth Group or Commercial & General Law.
The Decision of the Trial Judge
Doyle CJ began by observing that Permanent Custodians’ title, as registered mortgagee, was “absolute and indefeasible” pursuant to section 69 of the Real Property Act. Doyle CJ then considered the exception to indefeasibility provided in section 69(h) of the Real Property Act. That section relevantly provides:[1]
The title of every registered proprietor of land shall, subject to such encumbrances, liens, estates, or interests as may be notified on the original certificate of such land, be absolute and indefeasible, subject only to the following qualifications:
…
(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;
Doyle CJ concluded that section 69(h) did not apply because the unregistered lease was for a term which exceeded one year.
[1] Real Property Act 1886 (SA), section 69(h).
Doyle CJ then addressed sections 118 and 119 of the Real Property Act. Those sections provide:
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.
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.
Doyle CJ emphasised the unregistered nature of the lease in his reasons for rejecting the application of section 118 of the Act. In any event, Permanent Custodians had not provided prior, relevant written consent. Section 119 was not applicable because the term of the lease exceeded one year and the right of renewal provided in the lease had not been protected by caveat. Doyle CJ concluded that the interest of Permanent Custodians had priority over the interest of Epworth Group under the lease and over the interest of Commercial & General Law under the sublease, and that, subject to the Retail and Commercial Leases Act, Permanent Custodians was entitled to possession of Suite 8.
Doyle CJ next considered whether the provisions of the Retail and Commercial Leases Act allowed Epworth Group and Commercial & General Law to remain in possession despite Permanent Custodians’ priority under the provisions of the Real Property Act. Doyle CJ considered that the Retail and Commercial Leases Act applied to the lease between Y H Epworth and Epworth Group because that lease fell within the meaning of a “retail shop lease”.[2] His Honour considered section 20B of the Retail and Commercial Leases Act, which provides for a minimum term for retail shop leases and further provides for the extension of the term of an existing lease in the event that it is less than the minimum term. His Honour concluded that in the present proceeding section 20B operated “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”.[3]
[2] Retail and Commercial Leases Act 1995 (SA), section 3(1).
[3] Epworth Group Holdings Pty Ltd v Permanent Custodians Limited (2010) 108 SASR 556, [55].
Having reached these conclusions, Doyle CJ observed:[4]
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?
…
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?
[4] Epworth Group Holdings Pty Ltd v Permanent Custodians Limited (2010) 108 SASR 556, [60], [62].
To answer those questions, Doyle CJ considered the purpose, objects and scheme of the Retail and Commercial Leases Act and also had regard to the second reading speech:[5]
[5] Epworth Group Holdings Pty Ltd v Permanent Custodians Limited (2010) 108 SASR 556, [67]-[70], [72].
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. …
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.
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. …
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.
…
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.
Doyle CJ addressed section 6 of the Real Property Act, which relevantly provides:
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”.
In relation to this section, the Chief Justice concluded:[6]
… 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.
[6] Epworth Group Holdings Pty Ltd v Permanent Custodians Limited (2010) 108 SASR 556, [73].
As a consequence, Doyle CJ decided that Permanent Custodians was entitled to possession of Suite 8.
Application to Amend the Notice of Appeal
At the commencement of the appeal, counsel for the appellants applied to amend the notice of appeal to delimit the grounds of appeal in several respects, and to alter the status of Commercial & General Law from appellant to respondent. Permanent Custodians did not oppose the abandonment of aspects of the appeal. However, it was pointed out that at trial, orders for costs were made against Commercial & General Law and that although that entity advised that it would abide the order of the Court on the appeal, it properly remained as an appellant subject to such order as this Court might make as to costs on the appeal. The further consideration of the application was stood over to be considered at the conclusion of the hearing.
The Appeal
Epworth Group and Commercial & General Law appealed against the principal finding that Permanent Custodians, by virtue of its registered mortgage, was entitled to possession of Suite 8.
It was first contended that Permanent Custodians was a lessor of the premises within the meaning of the Retail and Commercial Leases Act and that as a consequence, the lease between Y H Epworth and Epworth Group bound Permanent Custodians for the balance of its term. It was submitted that Doyle CJ failed to give effect to the extended definition of lessor under the Act.
Epworth Group further contended that section 20B of the Retail and Commercial Leases Act provided Epworth Group and Commercial & General Law with a ‘statutory right of security of tenure’.[7] That phrase is defined in section 3 of the Act in the following terms:[8]
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.
Section 20B falls within Part 4A Division 2 of the Act.
[7] Retail and Commercial Leases Act 1995 (SA), section 3(1).
[8] Retail and Commercial Leases Act 1995 (SA), section 3(1).
Epworth Group and Commercial & General Law submitted that the creation of this statutory right of security of tenure was the purpose, object or scheme of the Retail and Commercial Leases Act and that the statutory right was inconsistent with the “absolute and indefeasible” title granted by the provisions of the Real Property Act. It was argued that the statutory right of security of tenure granted by the Retail and Commercial Leases Act did not require registration under the Real Property Act and that Y H Epworth’s interest as registered owner, and every other registered interest, was subject to that statutory right of security of tenure. In particular it was contended that the unregistered lease of Epworth Group had priority over the registered mortgage of Permanent Custodians.
Retail and Commercial Leases Act
The Retail and Commercial Leases Act is part of a nationwide legislative scheme[9] which seeks to ensure security of tenure to tenants of retail shops.
[9] Retail Leases Act 1994 (NSW); Retail Leases Act 2003 (Vic); Retail Leases Act 2003 (SA); Retail Shop Leases Act 1994 (Qld); Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA); Leases (Commercial and Retail) Act 2001 (ACT); Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998 (Tas).
Section 20A of the Retail and Commercial Leases Act addresses the objects of Part 4A of the Act, and provides:
(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.
The legislature sought to strike a balance between a lessor’s expectation of being able to deal with leased premises and a lessee’s expectation of reasonable security of tenure. The legislature struck the balance between these reasonable but conflicting expectations by providing that the minimum term of a retail shop lease must be at least five years. In the event of a retail shop lease being less than five years, the legislation statutorily extends the term of the lease. Section 20B, the earlier referred to section which operates to extend the term of the lease, prima facie applies to all relevant retail shop leases.

Section 16 of the Retail and Commercial Leases Act recognises that retail shop leases may or may not be registered under the provisions of the Real Property Act:
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.
This section would appear to contemplate that not all retail shop leases will be registered. It may be suggested that this section would be unnecessary if priority over a registered interest under the Real Property Act were to be overridden by unregistered leases pursuant to the terms of the Retail and Commercial Leases Act.
Part 4A of the Retail and Commercial Leases Act addresses the terms of retail shop leases and their renewal. Division 2 is directed to retail shop leases and Division 3 to retail shop leases of premises at a retail shopping centre. Division 2, comprising section 20B, in substance provides that a retail shop lease must be for a term of at least five years. There are statutory exceptions identified by section 20B(3). However, if a lease does not provide for a five year term, it is not invalidated. Section 20B(2) extends the lease so that its aggregate term is five years. Section 20K provides that this right cannot be excluded or modified by contract.
Section 20B provides:
(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).
(3)This section does not apply to a lease if—
(a)     the lease is a short-term lease (ie a lease entered into for a fixed term of 6 months or less); or
(b)     the lease arises when the lessee holds over after the termination of an earlier lease with the consent of the lessor and the period of holding over does not exceed 6 months; or
(c)     the lease contains a certified exclusionary clause; or
(d)     the lessee has been in possession of the retail shop premises for at least 5 years; or
(e)     in the case of a retail shop lease that is a sublease—the term of the retail shop lease is as long as the term of the head lease allows; or
(f)     the lease is of a class excluded by regulation from the ambit of this Division.
Part 4A 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.
Under Division 3 of Part 4A of the Act, other rights attach in respect of retail shop leases of premises at a retail shopping centre.
Prospective Lessor
As noted earlier, Epworth Group submitted that in the circumstances that occurred, Permanent Custodians, as registered mortgagee and as chargee, was to be treated as a lessor within the meaning of the Retail and Commercial Leases Act.
Section 3 of the Retail and Commercial Leases Act provides a definition of lessor:
lessor means the person who grants or proposes to grant the right to occupy a retail shop under a retail shop lease, and includes—
(a) a sublessor; and
(b) a prospective lessor or a former lessor;
It was contended that on a reading of both the mortgage and the deed of charge, Permanent Custodians had the power to take over the lease of Suite 8. It was said that this was sufficient to meet the requirements of the definition of a prospective lessor. Alternatively, it was contended that entering into possession of the premises on 16 September 2010, but then allowing Commercial & General Law to remain in occupation for eight days, amounted to acts as a lessor.
In my view, these submissions should be rejected. Permanent Custodians did not grant or propose to grant a right to occupy Suite 8 as a lessor. Permanent Custodians simply allowed Commercial & General to remain in occupation for the eight day period. Permanent Custodians did not seek to receive the rent or otherwise act as lessor. There was no finding by Doyle CJ or any evidence to support the contention that Permanent Custodians granted or proposed to grant a right to occupy a retail shop under a retail shop lease.
Security of Tenure
As mentioned, the further submission advanced on the appeal was that the Retail and Commercial Leases Act created a security of tenure in Epworth Group so that its unregistered lease prevailed over the prior registered interest of Permanent Custodians as mortgagee. This priority was said to arise notwithstanding that Permanent Custodians had entered into the mortgage without notice of the lease. This submission raised directly the question as to whether the Retail and Commercial Leases Act had amended or repealed the provisions of the Real Property Act that would otherwise give priority to the registered mortgage.
The Torrens system of “title by registration”[10] was established in South Australia in 1858, replacing the system adopted from the English upon settlement in Australia. The system which was replaced required parties to establish their title by tracing through an uninterrupted series of events and documents. In contrast, title under the Torrens system only requires production of the Certificate of Title for the particular parcel of land. The effectiveness of the Torrens system in South Australia caused it to be adopted interstate and in many foreign countries.
[10] Breskvar v Wall (1971) 126 CLR 376, 384.
Under the Torrens system, registered interests are recorded by the Registrar-General on the Certificate of Title. The Certificates of Title are stored in a Register which can be viewed by the public upon request. The object of the Torrens system has been described in the following terms:[11]
The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author's title, and to satisfy themselves of its validity. That end is accomplished by providing that every one who purchases, in bonâ fide and for value, from a registered proprietor, and enters his deed of transfer or mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author's title.
[11] Gibbs v Messer [1891] AC 248, 254.
The fundamental principle of the Torrens system is that the title created by registration is indefeasible.[12] Indefeasibility is subject to limited exceptions including fraud, forgery, short-term leases and specific overriding statutes.
[12] Bahr v Nicolay (No 2) (1988) 164 CLR 604, 613.
As earlier discussed, there was no challenge to the conclusion by Doyle CJ that under the Real Property Act alone the interests of the registered mortgagee took priority over the interests of the unregistered lessee. The debate on appeal turned on the effect of the interaction of the provisions of the Real Property Act with the Retail and Commercial Leases Act.
I agree with the observation of Doyle CJ that the Retail and Commercial Leases Act is “to be read as operating as between lessor and lessee, and as striking a balance between their interests”.[13] There is nothing in the legislation that would allow the conclusion that the Act was intended also to confer on a lessee rights that would take priority over registered interests under the Real Property Act contrary to the provisions of that Act. The terms of section 16 of the Retail and Commercial Leases Act, as earlier discussed, support this conclusion.
[13] Epworth Group Holdings Pty Ltd v Permanent Custodians Limited (2010) 108 SASR 556.
The interpretation contended for by Epworth Group would lead to anomalous results. For example, an unregistered lease extended by force of section 20B(2) would be given priority, whereas an unregistered lease for more than five years would not. It cannot be contemplated that such a result could be the intention of Parliament. Unsurprisingly, in the course of the second reading speech, the Minister observed:
…in order to make leases definitely enforceable by a tenant against a successor entitled of a landlord registration of lease is necessary.
In my view, the phrase “statutory rights of security of tenure” is a reference to security of tenure between lessor and lessee. In this respect, I agree with the observations of Doyle CJ that on a clear reading of the Retail and Commercial Leases Act as a whole, the reference is to rights conferred on the lessee against the lessor and no more.
Epworth Group accepted that section 6 of the Real Property Act, headed “Laws inconsistent not to apply”, had to be addressed. This section was the subject of the judgment of the High Court in South-Eastern Drainage Board (SA) v Savings Bank of South Australia, where Dixon J observed:[14]
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. …
[14] South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603, 625.
It follows on from the above analysis and my earlier conclusions that there is no relevant inconsistency. In any event, were there to be any perceived inconsistency, it is my view that section 6 would operate and that the provisions of the Real Property Act would apply.
It follows from these reasons that the appeal should be dismissed.
A Further Matter - Notice of Contention
It is important to address one further matter, which matter arises from the notice of contention. The lease in question was, it was said, a lease for a term of seven years within the meaning of the Retail and Commercial Leases Act. Although the initial term was for two years and one day, there were five rights of renewal each for a period of one year. As a consequence, Permanent Custodians contended that Part 4A, and in particular section 20B, had no application to this lease. It was contended that the security of tenure operating in respect of the rights under section 20B simply did not arise.
Doyle CJ discussed this issue, and observed:[15]
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.
[15] Epworth Group Holdings Pty Ltd v Permanent Custodians Limited (2010) 108 SASR 556, [55]-[56].
In my view, as the point was not argued at trial, it is inappropriate to further consider the notice of contention. As Doyle CJ observed, the trial was conducted on a different basis.
Conclusion
I would dismiss the appeal.
SULAN J: I agree with the reasons of Gray J. I would dismiss the appeal.
VANSTONE J: I, too, would dismiss the appeal for the reasons given by Gray J.