Freehills Services Pty Ltd v Eureka Funds Management Ltd & Anor

[2009] HCATrans 115

[2009] HCATrans 115

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M71 of 2008

B e t w e e n -

FREEHILLS SERVICES PTY LTD

Applicant

and

EUREKA FUNDS MANAGEMENT LTD AND AUSTRALIAN REWARD INVESTMENT ALLIANCE

Respondents

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 MAY 2009, AT 10.56 AM

Copyright in the High Court of Australia

MR N.J. YOUNG, QC:May it please the Court, I appear with MR R.J. HARRIS for the applicant.  (instructed by Arnold Bloch Leibler Lawyers)

MR A.C. ARCHIBALD, QC:  May it please the Court, in this matter I appear with my learned friends, MR I.J. HARDINGHAM, QC and MR I.S. WILLIAMS, for Eureka.  (instructed by Blake Dawson Lawyers)

GUMMOW J:   Yes, Mr Young.

MR YOUNG:   May it please the Court.  The decision by the Court of Appeal in this matter, in our submission, represents a significant departure from the approach which general contractual principles would suggest should be adopted to a rent review provision.  It also represents a significant departure from authorities in England and New Zealand dealing with the interpretation of such a provision.  Further, it departs from the valuation standards which have been applied in Australia since the early 1990s.  The English position is summarised in the extract from Woodfall that we have provided the Court with.  The New Zealand position is to similar effect.

Woodfall, if I can take the Court to that for a moment, edited by Justice Lewison sets out three fundamental principles to be borne in mind in construing a rent review clause and I will state them very briefly.  First, the purposes to keep the rent in line with current property values.  Secondly, the valuer should adhere as closely as possible to reality and depart from it only when required by an explicit provision or necessary implication in the lease.  Thirdly, the overriding objective is to arrive at an up‑to‑date rent. 

GUMMOW J:   Now, is this text written against a background of incentive payments?

MR YOUNG:   Yes, your Honour, it takes them into account.  That is one of the matters that customarily needs to be taken into account by a valuer in arriving at a market rent and standards both in the United Kingdom, New Zealand and here require a valuer to make appropriate adjustments to arrive at the kind of rent that would be negotiated by willing and not anxious lessors and lessees in all the circumstances of the market.  That approach is only to be departed from when required by clear words on a lease.     In this case, in our submission, the Court of Appeal gave no weight to the relevant lease history and, secondly, they disregarded the context within the lease. 

GUMMOW J:   In the end though one is drawn to these words in 6.3, is that right?

MR YOUNG:   Yes, your Honour. 

GUMMOW J:   How do you say that they are to be construed?

MR YOUNG:   Is your Honour looking at the extract from the lease or the Court of Appeal’s decision?

GUMMOW J:   I am looking from the Court of Appeal’s decision.

MR YOUNG:   Yes, at page 32?  If I can work from page 32 of the book. 

GUMMOW J:   Yes.

MR YOUNG:   Can I make these observations about clause 6.3.  Although it uses the two contrasting phrases, the relevant exercise in the 2004 rent review was to ascertain the current annual market rental et cetera.  The words relating to the 2003 review were not the relevant part of this clause, that exercise had previously been undertaken.  Secondly, although those contrasting descriptors are used, the exercise is identical for both types of a review.  The valuer is required to have regard to two categories of matters. 

First, all matters which in the opinion of the valuer are relevant.  That applies at both types of review.  Secondly, the valuer must have regard to specific criteria, the same criteria must be taken into account at both types of review.  Subparagraph (i) requires regard to be had to “current annual rental values”, and I will abbreviate it, of comparable premises. 
It was common ground at trial and the Court of Appeal proceeded to decide the case on the basis that that required the valuer to have regard to comparable rentals adjusted to remove any effect of incentives.  The lessor’s argument was that, whilst that was the right construction of paragraph (i) that looked at adjusted rentals, there was then a necessity to add the effect of the incentive back in.  That appears in a number of places, but in ‑ ‑ ‑

GUMMOW J:   To add it back in in application of what words?

MR YOUNG:   Only the contrasting expressions “market rental value” versus “market rental” itself, that is all.  That, your Honour, appears at the end of Justice Cavanough’s judgment, court book 57, paragraph 73, line 40.  This is the decisive conclusion:

For the valuer to have applied the ‘effective rents’ which he had derived in respect of comparable premises –

that is a reference to (i) –

directly to the demised premises with no adjustment at all to reflect the significant distinction between current annual market rental and current annual market rental value, as he did, represented non‑compliance by the valuer with the contractual description of what he was to determine.

The lessor’s argument in that regard, your Honour, is summarised both at trial and in the appeal judgments.  Justice Hargrave sets it out succinctly at court book 13.  Two steps in the lessor’s construction were that under A6.3(i) you looked at comparable premises for effective rentals, that is, adjusting for incentives.  Then paragraph (d):

if, however (as in the present case), the valuer is required to fix a face rental . . . he will not stop short at the effective rent figure; he will gross it up to take account of incentives actually affecting –

So it will go back to a passing rent.  That was the lessor’s argument and the justification for the gross up was said to be only the two contrasting introductory phrases.  Justice Cavanough doubted that construction but said because it was conceded and common ground below, he would decide the case on the basis that paragraph (i) had the meaning I have expressed to the Court.  So did the joint judgment.  That did the same thing.  There are then some further directions in A6.3, taking no account of certain things, (vi) required the valuer to have regard to:

the terms conditions provisions and agreements contained in the Lease –

That required the valuer to apply clause A7 which is then immediately set out.  Clause A7 was described as a “ratchet clause” in argument.  It said there is no floor for the 2003 review, but in the case of any other market review, including the one in question, there was a floor, the greater of the amount so determined or the previous minimum rent.  So there was a floor set for the 2004 review which the valuer was required to apply by criterion (vi).  That, we say, is a relevant contextual matter that explains the different descriptors.  Where there is a floor, the expression “current annual market rental” is used, where there is no floor, the word “value” is added. 

That explains, within the context of the lease, the fact that different descriptions are used.  There is no objection.  We would say that it is simply a different description applied because there is a possibility of a different outcome because the clause is clear, that in all other respects the exercise is identical.  The valuer must take account in both types of review of all relevant matters and having regard to the same criteria. 

There is one other matter which is relevant here which is that the history of this lease was that in predecessor leases when an incentive was given there were two additional criteria.  They are set out at the application book at page 7, paragraph 22 in Justice Hargrave’s judgment.  A6.3(i) in the first lease, the 1991 lease where there was an incentive, stipulated two additional criteria.  They were specific directions to the valuer to take no account of the inducements or incentives.  In the later leases there were no incentives and these two criteria were deleted. 

GUMMOW J:   It is said against you, not surprising I suppose, that this is just a particular rent review clause, so why should we get involved in this entanglement of this document?

MR YOUNG:   For these reasons, your Honour.  This judgment undertakes an approach to rent review provisions that elevates those two verbal formula to a position of control in the sense that treating them as general words that are to be taken by courts as indicating that if you use the expression “rental value”, that is a reference to rents adjusted to exclude the effect of incentives, whereas if you use the expression “market rental”, that is to be taken prima facie as a reference to a face rent.  With all respect to their Honours, that is to elevate verbal formula to a position which they should not enjoy in the context of the construction of leases.  Their Honours have done that, disregarding the word “market”.  The word “market” appears in both phrases.  The word “market” ordinarily would be regarded by the courts as an indication that Spencer value rules apply, that one is to ascertain the market rental or the market rental value in the same way, that is, by looking into the actual circumstances of the market and by determining whether hypothetical lessors and lessees would adjust the rent for incentives, and they would in each case.  That is signified by the word “market”. 

Their Honours depart from that, elevating the authority of case called McCafferty.  Their Honours treat that as controlling because a dissenting judgment in that court case drew a distinction between the significance or signification indicated by the words “rental” compared to “rental value”.  It was a dissenting judgment in McCafferty, and McCafferty in any event was a case where there was an express direction in the lease to ignore incentives.  McCafferty was cited with approval by Justice Eames in the AOTC Case.  This Court of Appeal decision elevates that approach so that verbal formula become controlling rather than a proper construction of the lease having regard to all of its provisions in context. 

GUMMOW J:   McCafferty is [1994] 2 Qd R 538 and the judgment is that of Justice Cooper in dissent, I think.

MR YOUNG:   Justice Ambrose in dissent.

GUMMOW J:   Justice Ambrose, yes.

MR YOUNG:   Yes.  The extract from McCafferty, your Honour, is at page 46 of the application book.  I am sorry I did not give the citation. 

GUMMOW J:   What page in the report?

MR YOUNG:   It is at 545 in the report.  His Honour, in the dissenting judgment was making some observations about the difference between rent and rental value.  Here the issue was the use of two terms, “current annual market rental” and “current annual market rental value”, “market” qualified both expressions and there was an obvious contextual explanation for the use of different descriptors because there was a possibility of a different outcome.  This decision, your Honour, would now be regarded perhaps as the leading authority on the approach to be adopted to rent review provisions. 

GUMMOW J:   Those decisions that Justice Ambrose refers to, King v Cadogan 1915, do they have much to say on this point?

MR YOUNG:   No, your Honour, no, they do not, because they were not dealing with expressions in the context of the use of the word “market”.  Justice Cavanough went through five points, which is a convenient point of reference for the submission I want to put your Honour.  That is at page 53 of the book.  His Honour reached this point having dismissed the relevance of clause A7, the ratchet clause, as an explanation for why different descriptions might arise.  At the top of page 53 his Honour said about that argument that A7 played no part in the determination process, and his Honour went on to say, second line on page 53:

The word ‘value’ is inapposite to signify the absence of a rental floor. 

In our submission, that really does not hold good.  If there is a different outcome because one assessment has a floor and one does not, why is the word “value” not an appropriate way of recognising the possibility of that difference?  His Honour goes on to make some other points.  As to the word “market”, his Honour’s answer at paragraph 63 is that the reliance the lessee placed on “market” was met by the passage in the dissenting judgment of Justice Ambrose in McCafferty.

The second point his Honour addressed was that the obligation under A6.3(i) to consider incentives was inconsistent with the lessor’s argument.  In paragraph 64 his Honour accepted that that was so because it produced some tension.  His Honour went on to say he doubted that construction but would give effect to it because it was common ground below.  His Honour said that in paragraph 67 at page 55.  His Honour started by saying that he would accept the party's common position. 

Still, it seems to me that the insertion of the contrasting phrases in question in the opening words of clause A6.3 . . . has had . . . an effect substantially equivalent to the effect which the old clause A6.3(iv) –

the explicit direction to disregard incentives had.  Then his Honour relies again on McCafferty.  That is why we say this judgment elevates those dissenting observations to an undeserved station.  The third point that his Honour was addressing, all of which were relied upon by the trial judge, was that the omission of the expressed directions was telling.  His Honour’s answer to that in paragraph 68 was that the omission of the old explicit directions did not assist, again because of the contrasting phrases.         Next, the trial judge had said that the lessor’s construction was uncommercial.  The trial judge said that at page 14, paragraph 45, essentially saying that it is uncommercial that a lessee intended to pay rent should be required to pay rent at levels paid by others who took incentives, whereas under this lease there was no incentive. 

`          In our submission, it is an uncommercial outcome.  Can I state it this way.  Under the earlier lease when incentives were paid there were explicit directions to the valuer to disregard incentives and to look at comparable rents on the basis of rents affected by incentives because there was an incentive for the instant lease.  When the incentives disappeared in later leases, the directions to disregard incentives were removed.  The effect of the Court of Appeal decision is to reinstate an explicit direction to disregard incentives when there were none.  In our submission, the trial judge was right to say that that is uncommercial. 

The fifth point was that the valuer had applied the applicable valuation standards to adjust for incentives and the objection was that the Court of Appeal would be intruding into the valuer’s province.  The answer given by Justice Cavanough to that proposition was in paragraph 73 at page 57.  In line 3 of paragraph 73 his Honour accepted that the Court of Appeal’s construction produced some awkwardness, but his Honour went on to say, however, it is necessary to go through this exercise of first looking at effective rents from which incentives had been adjusted outwards under subparagraph (i) and then to add them back in because his Honour discerned a requirement in the use of the contrasting expressions to do that. 

In our submission, that really does involve direct conflict with the applicable valuation standards.  The valuer’s determination is at pages 114 and 115.  I will not read it but can I direct the Court to what the valuer said

between lines 30 and 40 at page 114 and the valuer’s conclusion is at 115 at the top of the page.  The justification in part for the Court of Appeal’s approach was that they were matching the two terms; “market rental” they matched to face rentals, “market rental value” they matched to effective rents based upon some kind of assessment of the general environment.  In our submission, for the reasons we gave in our reply, they misunderstood the background.  The background they referred to led to the institution of the valuation standards which the valuer applied. 

In our submission, there is real doubt about the decision.  Uncorrected, it sends the wrong signal to courts concerning the proper approach to the interpretation and application of rent review provisions and they are very important matters in the commercial life of this country.  The public interest lies in ensuring that appropriate valuation standards are applied, that adjustments are made to incentives to arrive at real rental levels unless the parties explicitly agree to the contrary.  Those are our submissions, your Honour. 

GUMMOW J:   Yes, thank you, Mr Young.  Mr Archibald.

MR ARCHIBALD:   In our submission, the construction accorded by the Court of Appeal to the clause is correct but in any event, nothing that emerges from their Honours’ judgment could in any way elevate to some general level of application what their Honours said about this clause.  The cases are replete with observations that render rent review clauses often, if not as a matter of generality, assume levels of specificity and complexity attributable to particular leases.  Their Honours emphasised in their Honours reasons the bespoke nature of this clause and the lack of assistance that other cases afforded to its construction.  That appears clearly in the joint judgment of Justices Neave and Redlich, paragraph 3, page 24 and in Justice Cavanough’s reasons, paragraph 26, page 31. 

What their Honours did was investigate the way in which the phrases were used in the particular lease without seeking to ascribe the content of those phrases some general sphere of operation.  Their Honours’ conclusion depends not upon some concept of what valuation principles or methodology might accord to such concepts in the abstract, their Honours looked at the juxtaposition of those clauses and the contrasting work which those clauses had to do in the particular lease.  Their Honours observed, as your Honours will have seen, the repeated statements in appendix 1 of the two concepts and their differing application. 

The applicant seeks to characterise those phrases as mere descriptors, which is to say, because of the specific criteria in clause A6, all that the phrases are doing is expressing in different terms the work which those specific criteria have to do.  That argument was rightly and resoundingly rejected, in our submission, by the Court of Appeal.  The applicant conceded for the first time before the Court of Appeal that there was a difference between the two expressions and, as Justice Cavanough observed, the sole explanation that the applicant sought to give ‑ ‑ ‑

GUMMOW J:   Where does this appear?

MR ARCHIBALD:   In Justice Cavanough’s reasons, your Honour?

GUMMOW J:   Yes.

MR ARCHIBALD:   It appears at paragraph 60, page 51, lines 39 to 42:

In oral submissions before this Court, the respondent, having acknowledged in the end that the lease dealt differentially with the 2003 review as compared with the other reviews, sought to elevate to a central contention a point which had been made as a mere passing suggestion in its written submissions . . . 

Indeed the respondent ultimately submitted orally that the true and only explanation for the inclusion of the word ‘value’ in relation to the July 2003 review was that it ‘emphasised’ that, in two respects, the 2003 review was less restricted than other reviews.

That is the ratchet clause point.  The proposition is, there is a difference in these expressions.  The only reason for the difference in the expressions is to emphasise or signify, to remind the parties that the 2003 review was not subject to the ratchet clause and therefore did not have a floor rent attributable to it.  Then his Honour in paragraph 61, from the bottom of page 51 of the application book to the top of page 53, set out reasons which, in our submission, are impeccable as to why that explanation is unsound and untenable.  His Honour said as to the proposition in the sentence bridging pages 51 and 52 that:

The suggested role for the word ‘value’ is devoid of any substantive content.  It is also inconsistent with the meaning and role of the identical word ‘value’ in clause A6.3(i) . . . The sole function of clause A6.3 as a whole is to define the valuer’s function.  But the clauses in the lease which are supposedly ‘emphasised’ by the word ‘value’ play little or no part in the making of a determination –

So his Honour drew attention to the circumstance that clause A7, the ratchet clause – and his Honour referred to the terminology of it:

affects the ‘amount so determined as aforesaid’.

So that the natural role of the ratchet clause is, the valuer performs his determination, when you have performed the determination, you see whether the outcome of that determination is above or below the pre‑existing rent.  If it is below, then the ratchet clause takes over and preserves the earlier rent.

HAYNE J:   That is lines 22 and 24 on page 52, “It operates, if at all”.

MR ARCHIBALD:   Yes, so it is after the valuation, not a component of it.  My learned friend in submissions before this Court today said twice that because the valuer is commanded to look to specific criterion (vi):

the terms conditions provisions and agreements contained in the Lease –

the valuer was required to apply the ratchet clause, A7, as part of his valuation.  In our submission, that is entirely unsound.  What is commanded of the valuer by clause A6.3 in respect of the specific criteria is that the valuer have regard to, not to apply the criteria and therefore not to apply the terms.  Certainly one of the matters that the valuer would have regard to is the circumstance that there was for the 2003 review no operative ratchet clause.  The valuer would for the 2004 review appreciate that there is a ratchet clause but it could not impact upon the process of the valuation itself. 

Then, at the foot of page 52 in the application book, his Honour dealt with another point which, in our submission, is particularly telling.  In relation to level 42, there was a review in 2004.  In respect of that review, in the same way as was the case with the July 2003 review, the ratchet clause was not to apply.  His Honour says that in the last three lines on page 52.  But, strikingly and tellingly, there was not used in respect of the 2004 review concerning level 42 the expression “current annual market rental value”.  So that the proposition advanced by the applicant, if it were to be sound, would inevitably have to be found also in the case of the 2004 review for level 42, if it were sound.  That expression is not found and therefore, in our submission, it is clearly unsound. 

There was no other explanation afforded, as Justice Cavanough said, for the difference between the two expressions which was ultimately conceded by the applicant.  Our submission has been, and it found favour in the Court of Appeal, that because of the juxtaposition of the expressions, one can find that the parties intended a difference to exist in respect of these phrases in this lease whatever might be the case in respect of other usages of them.  There was reference to what Justice Ambrose said in McCafferty in respect of that proposition but not to apply as some general proposition, that phrases “market rent” or “market rental value” have specific content as terms of art or the like.

All that McCafferty was used for, as the joint judgment shows clearly at pages 24 to 25 of the application book, in paragraph 3, is that there may be uses in particular leases which required different meanings to be assigned to such expressions.  Their Honours said decisions such as CML and McCafferty illustrate that the use of both of these expressions in the lease may require different meanings to be assigned to them.  So it is the juxtaposition and contradistinction that drives conclusions and it drove the conclusion of the Court of Appeal here. 

My friend repeatedly said that Justice Ambrose was in dissent in McCafferty. He was in the outcome, but not in respect of this point. His Honour dissented only on the point that in the circumstances his Honour concluded, unlike the other members of the Court, that it was not appropriate to make a declaration about the subject matter of the proceeding. His Honour did not dissent in relation to the characterisation of the expressions “rent” and “rental value”. The passage in Justice Cooper’s reasons to which we would refer to the Court to confirm that his Honour was not in dissent on this point, is a passage which appears at page 555 of the report of the case which is reported in [1994] 2 Qd R 538. At page 555 Justice Cooper, then a member of the State Court, said:

To my mind the open market rental values are something different to the open market rent referred to in cl 4.10.1. 

So his Honour was expressly in agreement with his Honour in that regard and the third member of the court I think generally agreed.  There is nothing in Ambrose, in our submission, to elevate these matters to a point of constant content or to general application and McCafferty was used only as an illustration of how in a case which uses contrasting phrases, one might come to a conclusion that their uses are of a differential kind. 

In our submission, it is not the case that what their Honours have done in their unanimous decision in the Court of Appeal is depart from any general approach that is commanded in respect of rent review clauses.  They have recognised reality, if reality is a component of clauses.  The reality here was that the antecedent 14‑year lease would have expired in July 2003.  What the parties did in their subsequent lease was to preserve the significance of that expiry date and that explains, as the Court of Appeal observed, the fundamental reason for the parties differentiating these rent review criteria in respect of July 2003 on the one hand and all other reviews on the other. 

Had the original lease reached its expiry date in June 2003, the erstwhile tenant would have been in the position of embarking upon a decision as to whether it would enter a new lease.  That is the occasion upon which incentives, if the conditions are appropriate, may be allowed to a fresh tenant.  That is why, in our submission, one can see the parties chose, in the case of that rent review, to allow the current annual market rental value be looked at which would take into account incentives in respect of all other rent reviews.  The tenant was in a position of being a sitting tenant not having the opportunity to negotiate fresh incentives.  If incentives were taken into account, the tenant would in effect be double‑dipping back to the advantage of the incentive originally obtained.  Rightly or wrongly, the parties made that distinction as a matter of their commercial judgment.  It is clearly embedded in the terms of the contract and the court rightly gave effect to it. 

There is no dissidence, in our submission, in the reasons of the court with decisions whether it be in this country, England or New Zealand.  The English and New Zealand cases, which are footnoted in our friend’s submissions, do not deal with these expressions, at least in their contrasting usages.  They are decisions which do not engage with the central issue in the instant case and valuation standards were not in issue and not in debate before the court.  The question was, did the two expressions have the same meaning or did they have different meanings?  The nature and extent of the different meanings was a matter for the valuer in due course, and the Court of Appeal did not intrude in any way upon that province of the valuer. 

The point upon which the Court’s decision turned was that the valuer mistook his task, the task set by the contract.  That was the error appearing in the top of page 115 in the application book and that is why it was right for the court to intervene.  The valuer treated the two expressions as synonymous.  The court held that the contract treated them otherwise and that is the foundation of the valuer’s error.  The court in no way intruded upon the functions or the provinces of valuer.  If the Court pleases.

GUMMOW J:   Thank you, Mr Archibald.  Yes, Mr Young.

MR YOUNG:   If the Court pleases, three short points.  First, the only issue at trial and on appeal was whether the different expressions told the valuer anything about the treatment of incentives, that is to say, were they relevantly synonymous in the sense that they operated in such a way that there was no difference in the treatment of incentives.  That was recognised at trial.  Justice Hargrave, for instance, said at court book 14:

the lessors’ own submissions accept that the expressions “market rental” and “market rental value” do not always have the [same] meanings –

Justice Cavanough began his judgment by saying that the issue was whether the terms were relevantly synonymous.  That is paragraph 16 at page 29 of the application book.   It was always the question whether they told you anything about incentives.  In our submission, it was always the position of both parties that there were differences in meaning between the two terms, both generally and in this lease.  Next, as a second point Justice Cavanough, at application book page 48, paragraph 55, explained his approach to the meaning of the two terms.  On the second line on the page his Honour said:

while I think that, in the context, a significantly different meaning must have been intended . . . I accept that there is some difficulty in discerning that meaning precisely.  One thing, I consider, is clear.  Neither expression is to be regarded as a mere prefatory description or summary of the matters to which the valuer is directed to have regard.  Rather, each expression is intended, itself, to describe or define the relevant task of the valuer –

and then these important words follow –

albeit that the valuer is to have regard to all matters which the valuer considers relevant . . . to the ‘specific criteria’ . . . the valuer is not to act inconsistently with the specific criteria.

his Honour adds.  The words that follow “albeit” accept that so far as the lease goes, exactly the same directions apply at each review.  His Honour’s proposition that each expression is intended itself to describe or to find the relevant task of the valuer is denied by the reasoning that follows.  It is denied by the terms of the lease. 

HAYNE J:   Much would turn on what weight you give to that little phrase “to that task” appearing at line 34.

MR YOUNG:   Yes, your Honour.  We say the difference in expression is explained because there is a different outcome which is possible, therefore the parties have avoided using exactly the same phrase because at different reviews you might get different outcomes and the valuer is required to adjust his assessment, having regard to the ratchet clause.

The third point is this.  As to the juxtaposition of the two terms, they do not, in any event, constitute a clear direction to a valuer to depart from valuation standards that would ordinarily require adjustment for incentives and to produce of a rent that departs from true market levels.  To that extent, in our submission, the Court of Appeal does depart from what should be the proper principle applicable in these cases.  In our submission, they do it by

elevating McCafferty in a way which is undeserved.  Those are our submissions.

GUMMOW J:   Thank you.  We will take a short adjournment.

AT 11.39 AM THE SHORT ADJOURNMENT

UPON RESUMING AT 11.42 AM:

GUMMOW J:   The decision of the Victorian Court of Appeal depended upon the proper construction of the relevant provisions of a particular lease.  The decision is not to be understood as establishing any more general proposition concerning the meaning of phrases similar to those found in this lease when used in other documents.  Further, an appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave.  Special leave is refused with costs.

We will adjourn to reconstitute.

AT 11.42 AM THE MATTER WAS CONCLUDED