GPT RE Ltd v Lend Lease Real Estate Investments Ltd

[2005] NSWSC 964

CITATION:	GPT RE Ltd v Lend Lease Real Estate Investments Ltd & 1 Or [2005] NSWSC 964
HEARING DATE(S):	08/09/05
JUDGMENT DATE :	27 September 2005
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	White J
DECISION:	See Para 101 of judgment

CATCHWORDS:	CONTRACT - Interpretation - Pre-emptive rights - Construction ejusdem generis - Whether conditional call option a disposition or alienation of an interest in property - Whether a party wishing to deal with its interest obliged to give a transfer notice - Whether provision merely facultative.
LEGISLATION CITED:	Corporations Act 2001 (Cth) Crown Lands Act 1913 (NSW) Crown Lands Act Amendment Act 1917 (SA)
CASES CITED:	McKay v Wilson (1947) 47 SR (NSW) 315 Pritchard v Briggs [1980] Ch 338 Mercury Energy Ltd v Utilicorp NZ Ltd [1997] 1 NZLR 492 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Egan v Ross (1928) 29 SR (NSW) 382 Re Stayte [1997] 1 Qd R 99 Richardson v Cummins (1951) 15 ABC 185 Lang v Castle [1924] SASR 255 Credland v Potter (1874) LR 10 Ch 8 Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 Melacare Industries of Australia Pty Ltd v Daley Investments Pty Ltd (1995) 9 BPR 17,079 Commissioner of Taxes (QLD) v Camphin (1937) 57 CLR 127 Legione v Hately (1983) 152 CLR 406 KLDE Pty Ltd v Commissioner of Stamp Duties (Qld) (1984) 155 CLR 288 Kern Corporation Ltd v Walter Reid Trading Pty Ltd (1987) 163 CLR 164 Stern v McArthur (1988) 165 CLR 489 Chan v Cresdon Pty Ltd (1989) 168 CLR 242 Chief Commissioner of Stamp Duties v ISPT Pty Ltd (1998) 45 NSWLR 639 Tanwar Enterprises Pty Ltd v Cauchi (2003) 77 ALJR 1853 Butts v O'Dwyer (1952) 87 CLR 267 Kuper v Keywest Constructions Pty Ltd & Anor (1990) 3 WAR 419 Jessica Holdings Pty Ltd v Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140 Re Henderson's Caveat [1998] 1 Qd R 632 Forder & Ors v Cemcorp Pty Ltd (2001) 51 NSWLR 486 Sahade v BP Australia Pty Ltd (2004) 12 BPR 22,149 Lennox v Cameron (1997) 8 BPR 15,939; (1998) NSW Conv R 55-837 McWilliam v McWilliam's Wines Pty Ltd (1964) 114 CLR 656 Brown v Heffer (1967) 116 CLR 344 Kulamma v Manadan [1968] AC 1062 Redglove Projects Pty Ltd v Ngunnawal Local Aboriginal Council [2004] NSWSC 880 DKLR Holding Co. (No. 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510 Re Transphere Pty Ltd (1986) 5 NSWLR 309 Re Sedgefield Steeplechase Co. Ltd [2000] 2 BCLC 211 Lyle & Scott Ltd v Scott's Trustees [1959] AC 763
PARTIES:	GPT RE Ltd v Lend Lease Real Estate Investments Ltd & 1 Or
FILE NUMBER(S):	SC 4636/05
COUNSEL:	Plaintiff: M Pembroke SC & T Saunders1st & 2nd Defendants: B Walker SC & F Kunc 3rd Defendant: I M Jackman SC
SOLICITORS:	Plaintiff: Allens Arthur Robinson 1st & 2nd Defendants: Mallesons Stephen Jaques 3rd Defendant: Speed & Stracey

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

WHITE J

Tuesday, 27 September 2005

4636/05 GPT RE Ltd v Lend Lease Real Estate Investments Ltd & 1 Or

JUDGMENT

1 HIS HONOUR: GPT RE Ltd and Lend Lease Real Estate Investments Ltd each own a 50% interest in a shopping centre at Maroochydore on the Sunshine Coast in Queensland, known as the Sunshine Plaza. Their ownership is regulated by an agreement called the Joint Ownership Agreement made on 25 June 1992 between their predecessors in title. That agreement restricts their rights to deal with their interests in the property.

2 GPT RE is the responsible entity of the General Property Trust. On 17 February 2005, the previous responsible entity of the trust, GPT Management Ltd, gave an option to Westfield Management Ltd for it to purchase a 25% interest in the property. At the same time, Westfield gave an option to GPT Management to require it to purchase a 25% interest in the property. The options were subject to conditions, including a condition that Lend Lease not exercise its pre-emptive rights under the Joint Ownership Agreement in respect of the property. On 2 June 2005, GPT RE succeeded to GPT Management’s rights and obligations under the deed of 17 February 2005. On 17 June 2005, GPT RE and Westfield varied those options.

3 Lend Lease contends that because of these transactions, and because GPT Management wished to sell and GPT RE wishes to sell the 25% interest in the shopping centre, but have not complied with the pre-emption provisions of the Joint Ownership Agreement, it is entitled to acquire all of GPT RE’s interest at valuation. Lend Lease contends that if it elects to do so, GPT RE is bound to sell at the price fixed by the valuation.

4 GPT RE brought these proceedings to establish that Lend Lease is not entitled under the Joint Ownership Agreement to instigate the valuation of its 50% interest, and that it cannot be forced to sell its interest to Lend Lease at valuation.

5 The case turns on how some of the clauses of the Joint Ownership Agreement should be interpreted. Lend Lease contends that by entering into the put and call options with Westfield, GPT Management and GPT RE breached clause 9(a) of the Joint Ownership Agreement, which restricts either of the owners from dealing with its interests in the property. It also contends that GPT RE and GPT Management breached clause 9(c) of the Joint Ownership Agreement, by not serving a transfer notice after they formed the wish to deal with their interest. It contends that these were Events of Default under the Joint Ownership Agreement, and that by clause 10(c) of the Joint Ownership Agreement, it is entitled to acquire GPT RE’s Interest at valuation determined in accordance with clause 8(g) of the Agreement.

6 The case raises the following principal issues:

1. whether, by entering into the Put and Call Option Deed of 17 February 2005, or the Deed of Variation of 17 June 2005, GPT Management or GPT RE “dealt with” part of its “Interest” as those expressions are defined;

2. if so, whether they “dealt with” their “Interest” other than as provided in clause 9 of the Joint Ownership Agreement, without strictly following the procedures set forth in that clause;

3. if they breached clause 9(a) of the Joint Ownership Agreement, and thereby committed an Event of Default, whether, before Lend Lease is entitled to acquire GPT RE’s Interest at valuation, it must give a further notice allowing GPT RE the opportunity to remedy that default;

4. whether, on the proper interpretation of clause 9(c), GPT Management and GPT RE wished to deal with their Interest, even though they did not intend that the options would be exercised unless Lend Lease did not exercise its pre-emptive rights under the Joint Ownership Agreement, or waived those rights; and

5. whether GPT Management and GPT RE breached clause 9(c) of the Joint Ownership Agreement, by not serving a transfer notice once they formed the wish to deal with their Interest, or whether clause 9(c) is merely facultative, that is, it sets out the steps which must be taken if a Selling Owner wishes to deal with its Interest.

Parties to the Joint Ownership Agreement

7 The Joint Ownership Agreement was made between Perpetual Trustee Company Ltd, Australian Prime Property Fund Custodian Pty Ltd and Australian Funds Management Ltd.

8 Australian Prime Property Fund Custodian Pty Ltd was formerly the trustee of the Australian Prime Property Fund. Its rights and liabilities under the Joint Ownership Agreement were transferred to Lend Lease Real Estate Investments Ltd, (“Lend Lease”), on 7 August 2001 when that company became the responsible entity for the Australian Prime Property Fund. The transfer was effected by the statutory novation provided for by ss 601FS and 601FT of the Corporations Act.

9 Perpetual Trustee Co Ltd was the former trustee of the General Property Trust. On 22 October 2001, its rights and liabilities under the Agreement were transferred to GPT Management Ltd which became the responsible entity for the General Property Trust. Again, the transfer was by statutory novation under the Corporations Act.

10 On 2 June 2005, GPT RE Ltd became the responsible entity for the General Property Trust. Although it has not yet been registered as the proprietor of the estate as a tenant in common in equal shares with Lend Lease, it was common ground that the effect of ss 601FS and 601FT of the Corporations Act, is that GPT RE and Lend Lease are the legal owners as tenants in common in equal shares of the Property. GPT RE holds its interest on trust for the beneficiaries of the General Property Trust. Lend Lease holds its interest on trust for the beneficiaries of the Australian Prime Property Fund.

11 The second defendant, Lend Lease Funds Management Ltd, is also a party to the Joint Ownership Agreement. Its role includes co-ordinating any valuation process undertaken in accordance with clause 8 of the Agreement. I infer it was formerly called Australian Funds Management Ltd.

Relevant Provisions of the Joint Ownership Agreement

12 Clause 9 of the Joint Ownership Agreement is headed “Restrictions upon Transfer”. However, the heading cannot be used to construe the clause. (Clause 19(b)).

13 Clause 9(a) provides:

“(a) (1) Unless otherwise agreed by the Owners, an Owner (Selling Owner) may not deal with its Interest in whole or in part other than as provided in this clause 9 and unless the procedure set forth in this clause 9 have been followed strictly. ”

There is no clause 9(a)(2).

14 Clause 9(b) provides that an Owner may not deal with less than 20% of the total of all Interests.

15 Clause 9(c) provides:

“ A Selling Owner wishing to deal with its Interest in whole or in part (“Sale Interest”), must serve notice in writing to that effect on the other owner(s) (“Offeree”) and AFM, such notice to contain the terms and conditions referred to in clause 9(d) (“Transfer Notice”).”

16 Clause 9(d) describes what must be included in the Transfer Notice.

17 Under clause 9(e), AFM must, within 14 days, take steps to arrange for the Sale Interest to be valued in accordance with clause 8(g). Clause 8 contains detailed provisions as to how valuations of an Interest are to be obtained and how differences between the opinions of valuers appointed by each Owner are to be resolved. Clause 9(e) provides that the value determined in accordance with clause 8(g) will be the price at which the Sale Interest is offered to the Offeree under clause 9.

18 Clause 9(f) gives the Selling Owner the right not to proceed with the sale, by giving notice, within 7 days of receiving the valuation of the Sale Interest, that it does not wish to do so. However, by clause 9(g), a Selling Owner does not have the right not to proceed with the sale, if the sale is required to take place under other clauses, including clause 10.

19 An Offeree may decline the offer contained in a Transfer Notice. (Clause 9(h) and (i)).

20 Clauses 9(j)-(m) and (o) specify how a Selling Owner can deal with its Interest if the Offerees under a Transfer Notice do not take up the offer. Clause 9(n) provides for there to be a deemed service of a Transfer Notice in certain circumstances where there is a change in shareholding of an Owner, or a change in the beneficial ownership of a trust. Clause 9(p) deals with the granting of encumbrances. Clauses 9(q) and (r) deal with the consequence of a purchaser defaulting.

21 Clause 10 is concerned with the consequence of an Owner committing an “Event of Default”. An Event of Default includes an Owner failing to comply with, observe, or perform any of its obligations under the Agreement. (Clause 19(k)). Clauses 10(a) and (c) provide:

“ (a) If an Event of Default occurs with respect to any Owner, then that Owner will be allowed a reasonable opportunity to remedy or, in the case of a default not capable of remedy, to pay reasonable compensation to the non-defaulting Owners;
…
(c) If an Event of Default is not remedied or waived or compensation is not paid within a reasonable time (but in no case exceeding 20 business days), then the non-defaulting Owners will be entitled:
(1) to acquire the defaulting Owner’s Interest at valuation determined in accordance with clause 8(g) and the defaulting Owner will be deemed to have served a Transfer Notice on the non-defaulting Owners for the purposes of clause 9(c) and the provisions of clause 9 will apply, mutatis mutandis;
…”

22 Critical to the construction of clauses 9(a) and (c) are the definitions of “Interest” and “deal with”.

23 Clause 1(a) defines the word “Property” as meaning the land described in Schedule 1, the improvements from time to time erected on the land, and all of the rights and obligations arising under or pursuant to all agreements attaching or otherwise relating to the land or the improvements contemplated by that clause. Clause 2 provides:

“ As at the date of this agreement, the Owners hold their interest, rights and benefits in the Property from time to time (“Interests”) in the Property (sic) in the following Relevant Proportions:
(a) PTC - 50%
(b) APPFC – 50% ”

24 The expression “deal with” is defined in clause 19(k)(3) as follows:

“ ’deal with’ means any sale, assignment, transfer, disposition, declaration of trust assumption of obligations or other alienation (other than leasing, licensing or granting occupation rights) or granting other like rights and whether affecting legal or equitable interests and expressions cognate to ‘deal with’ will have a corresponding meaning; ”

Put and Call Option

25 GPT Management and Westfield entered into the Put and Call Option Deed on 17 February 2005. By clause 3.1, GPT Management granted to Westfield an option to purchase the Property at the price and on the conditions specified in the Contract which is set out in schedule 1 to the Deed. This is the Call Option. Clause 3.2 provided that the Call Option constituted an irrevocable offer by GPT Management to enter into a binding agreement for the sale of the Property to Westfield.

26 By clause 6.1, Westfield granted to GPT Management an option to require Westfield to purchase the Property at the price and on the conditions specified in the contract. This is the Put Option.

27 Clause 2.1 provided that the grants of the Call Option and the Put Option were “subject to and conditional upon” satisfaction of a number of conditions, including that Lend Lease not exercise its pre-emptive rights under the Joint Ownership Agreement in respect of the Property. There were three other conditions. Two related to the obtaining of unit holder approval. The third was that no person acquire more than 40% of the voting power in the General Property Trust, or make a takeover offer for the units in that trust.

28 By clause 2.2 each party was required to co-operate with the other and do all things reasonably necessary to procure that the Conditions Precedent were fulfilled.

29 By clause 2.3(e), GPT Management agreed not to enter into or consent to any assignment of or terminate any lease of the Property, or make any material capital expenditure or enter into any new material contract in respect of the Property, without the consent of Westfield, unless to do so would result in its being in default of an existing agreement, or the action was authorised under a budget or existing management agreement. By clause 8.2 it agreed with Westfield not to give any security, or enter into any agreement, which might adversely affect its ability to comply with its obligations under the Deed of Option, or the contract for sale, if either option was exercised. By clause 23.1(a) GPT Management undertook to use its best endeavours to obtain a waiver from Lend Lease of its pre-emptive rights in respect of the sale of GPT Management’s “Relevant Interest” to Westfield. Clause 23.1(b) provided that if the pre-emptive rights were not waived, and “a person buys GPTML’s Relevant Interest pursuant to the Sunshine Plaza JOA”, then GPT Management would assist Westfield to secure an agreement with the Pre-emptive Owner, (that is, Lend Lease), whereby the interest would be transferred to Westfield, and GPT Management would waive its own pre-emptive rights.

30 Clause 23.1(c) provided that GPT Management consented to, and would use its best endeavours to get the consent of the other Owner, to the appointment of a related body corporate of Westfield as sole manager and developer of the Sunshine Plaza.

31 Clause 23.1(d) provided, subject to an exception in respect of clause 23.1(c), that nothing in clause 23.1 would oblige GPT Management to take any action that would result in its breaching its legal or fiduciary obligations, or which would adversely affect the interest of the unit holders of the General Property Trust.

Variation of the Put and Call Option

32 By 17 June 2005, all of the conditions precedent to the Put and Call Options had been satisfied, except for the condition that Lend Lease not exercise its pre-emptive rights under the Sunshine Plaza Joint Ownership Agreement. Nor had Lend Lease waived its pre-emptive rights. GPT RE had replaced GPT Management as the responsible entity of the General Property Trust. On 17 June 2005, GPT RE and Westfield entered into a Deed of Variation of the Put and Call Option. As a result of the variation, clause 2.1 of the Put and Call Option Deed provided:

“ 2.1 Call Option and Put Option Conditional
The grants of the Call Option and the Put Option are subject to and conditional upon:
(a) LLREI waiving its pre-emptive rights under the Sunshine Plaza JOA in respect of the Property;
(b) LLREI not exercising its pre-emptive rights under the Sunshine Plaza JOA in respect of the Property; ”

33 Clause 2.2(b) of the Put and Call Option Deed, as varied, provided:

“ 2.2(b) GPTREL will, if requested by WML in writing before the Termination Date, but not otherwise, give notice to LLREI instigating the procedures in clause 9 of the Sunshine Plaza JOA applicable to a Selling Owner (as defined in the Sunshine Plaza JOA) in respect of its interest and will not without the consent of WML notify the other co-owner that it does not wish to proceed with the sale of its interest or otherwise withdraw its interest from sale unless LLREI notifies GPTREL that it wishes to accept the offer in the Transfer Notice (as defined in the Sunshine Plaza JOA). ”

34 Except where necessary to distinguish between them, I will call each of GPT Management and GPT RE, “GPT”. This will not be a reference to the trust, but to the relevant responsible entity of the trust.

The Meaning of “Deal With”

35 Lend Lease submitted that by taking and granting the Put and Call Options, or at least granting the Call Option, GPT dealt with its interest in the Property, and that it did not matter that it did so conditionally.

36 On no view could the grant of the Put Option by Westfield be considered a dealing by GPT with its Interest. (Pritchard v Briggs [1980] Ch 338 at 391; Mercury Energy Ltd v Utilicorp NZ Ltd [1997] 1 NZLR 492 at 502).

37 Lend Lease submitted that the conditions were conditions precedent to the exercise of rights under the Put and Call Option Deed, but were not conditions precedent to the existence of a binding contract. (Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 552). As Mason J there said:

“Generally speaking the court will tend to favour that construction which leads to the conclusion that a particular stipulation is a condition precedent to performance as against that which leads to the conclusion that the stipulation is a condition precedent to the formation or existence of a contract. In most cases it is artificial to say, in the face of the details settled upon by the parties, that there is no binding contract unless the event in question happens. Instead, it is appropriate in conformity with the mutual intention of the parties to say that there is a binding contract which makes the stipulated event a condition precedent to the duty of one party, or perhaps of both parties, to perform.”

38 That is so in this case. In this case, the obligations under the Put and Call Option Deed are to enter into the agreements for sale and purchase of the property on the conditions specified in the contract contained in schedule 1 to the deed. However, there is no doubt that there is in existence a presently binding contract constituted by the Put and Call Option Deed, as varied, under which GPT has assumed the obligation to enter into a contract to transfer the property to Westfield if the conditions for the exercise of the call option are satisfied, and the option is exercised.

39 GPT submitted that such a conditional contract did not constitute a “dealing” with the property as that expression is ordinarily understood. For this submission it relied upon the decision of Harvey CJ in Eq in Egan v Ross (1928) 29 SR (NSW) 382. There, a contract for the sale of Crown land was subject to the obtaining of the Minister’s consent. Section 274(2) of the Crown Lands Act 1913 provided that a transfer or other dealing with a homestead farm should not be effected, or, if effected, should not be valid, unless the Minister’s consent had been obtained. Harvey CJ in Eq held (at 387-388) that such contracts must, in the absence of express agreement to the contrary, be construed as an agreement to obtain the Minister’s consent and, if it is obtained, to transfer the interest. Such contracts were not “dealings” with the interest under the Crown Lands Act within the meaning of the prohibition in s 274(2).

40 In my view, the construction of the word “dealing” in a section of the Crown Lands Act which rendered transactions illegal, is not of assistance in the present case. Harvey CJ in Eq considered (at 388) that a contract for the sale of Crown land did not become “operative” if the Minister’s approval was not obtained. Clearly, special considerations apply to the construction of legislation which makes dealings with property illegal if the Minister’s consent is not obtained, particularly where, as in the case of the Crown Lands Act, the legislation contemplates the making of contracts which are conditional upon that consent.

41 I would have no difficulty in saying that by entering into the Put and Call Option Deed, even though its performance was subject to the Conditions Precedent, GPT dealt with its interests in the Property according to the ordinary conception of dealing, which includes bargains or arrangements for mutual advantage. (Macquarie Dictionary; Re Stayte [1997] 1 Qd R 99 at 101).

42 However, the expression “deal with” is a defined term meaning any “sale, assignment, transfer, disposition, declaration of trust assumption of obligations or other alienation (other than leasing, licensing or granting occupation rights) or granting other like rights and whether effecting legal or equitable interests”. Clearly, the entry into the Put and Call Option Deed did not effect a sale, assignment, transfer, or declaration of trust of 50% of GPT’s interest. Was it a “disposition … assumption of obligations or other alienation … or the granting of other like rights …”?

43 GPT and Westfield submitted that the expression “deal with” did not pick up any dealings less than an attempt to alienate or transfer or dispose of the whole or a percentage component of the legal or beneficial interest. They also submitted that only transactions which amounted to an alienation fell within the definition.

44 I do not accept the first of these submissions. GPT submitted that its construction was supported by the omission from the definition of “deal with” of dealings by way of granting mortgages or creating security over an Interest. However, Clause 9(a) provides that an Owner may not deal with its Interest in whole or in part “other than as provided in this clause 9…”. Clause 9(p) provides that no Owner may mortgage or charge or otherwise encumber its Interest in the Property without the consent of the other Owners which must not be unreasonably withheld, and if certain other conditions are agreed to. Lend Lease submitted that these provisions showed that the granting of a mortgage, charge or encumbrance was within the concept of a dealing with an Interest. Specific provision had to be made to allow such a dealing with the consent of the other Owner and to provide that such consent should not be unreasonably withheld. This explained the omission of mortgages and encumbrances from the definition of “deal with”. Unless the mortgaging, charging or encumbering of an Interest were within the conception of dealing, clause 9(p) would be out of place.

45 I agree with Lend Lease’s submission that the specific permission for the mortgaging, charging or encumbering of an Interest in the Property in clause 9(p) indicates that the parties contemplated that such transactions fall within the definition of “dealing with” an Interest in whole or in part. They should be regarded as a disposition, assumption of obligation, or other alienation of part of an Owner’s Interest.

46 “Alienation” refers to a parting with property and includes the parting with some interest in the property. (Richardson v Cummins (1951) 15 ABC 185 at 191). In Lang v Castle [1924] SASR 255 Napier J considered s 12 of the Crown Lands Act Amendment Act 1917 (SA) which prohibited “every form of alienation or attempted alienation” without the consent of the Commissioner. His Honour said:

“ In my view, alienation in this context is the analogue of ‘conveyance’ as defined by Lord Cairns in Credland v Potter (1874) LR 10 Ch 8 at 12. It means the act of the owner in disposing of an interest in the property. ”

47 In Credland v Potter Lord Cairns said (at 12) that the word “conveyance”,

“… denotes an instrument which carries from one person to another an interest in land. Now, an interest giving to a person a charge upon land gives him an interest in the land – if he has a mortgage already, it gives him a further interest; and so, whether made in favour of a person who already has a charge, or of another person, it is a conveyance of an interest in the land.”

48 Accordingly, I do not accept that before a transaction can qualify as a dealing, it must dispose of the whole or percentage component of the owner’s legal or beneficial interest in the Property. However, this does not mean that all contracts for or in respect of the sale of part of an Interest are necessarily within the definition of “deal with”.

49 I agree with the second of GPT’s and Westfield’s submissions, that it is only transactions which amount to an alienation of the whole or part of an owner’s Interest which falls within the definition of “deal with”. Leaving aside for the moment the “assumption of obligations” it can be readily seen that each of the transactions, whether sale, assignment, transfer, disposition, or declaration of trust would be an alienation of the legal or beneficial ownership in the property.

50 I accept that the phrase, “assumption of obligations”, refers to an assumption of obligations by the Owner amounting to a parting with a proprietary interest in the Property. The phrase “assumption of obligations” is apt to refer to an owner making a contract in respect of its Interest and thereby assuming an obligation to a third party as to how it will deal with its interest. However, the definition assumes that the “assumption of obligations” will form part of the genus of transactions which amount to an alienation. Not all contracts with respect to land amount to a disposal, or parting with, of interest in the land, although some may. In my view, a contractual dealing only amounts to a dealing in the defined sense if it is a disposition of, or a parting with, an interest in the Property. Such a dealing is an alienation.

Did GPT Alienate Part of its Interest by Entering Into the Conditional Put and Call Option?

51 The question then is whether the granting of the Call Option subject to the Conditions Precedent was an alienation of part of GPT’s Interest. The grant of an option to a third party to acquire land gives the optionee an equitable interest in the land in respect of which the option is given. In Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57, Gibbs J said (at 76) that this was explicable on the basis that an option is a conditional contract to sell the land which creates a contingent equitable interest in the land, but that it would be artificial to treat a contract which did no more than provide that an offer should not be revoked as giving the party to whom the offer was made a right to call for a conveyance of the land and an equitable interest in it. In this case, the option takes the form of an offer with a contract that it not be revoked. However, it is clear that even an option in that form gives the optionee an interest in the land. (See Melacare Industries of Australia Pty Ltd v Daley Investments Pty Ltd (1995) 9 BPR 17,079 at 17,091-17,092 and the cases there cited, in particular, Commissioner of Taxes (Qld) v Camphin (1937) 57 CLR 127 at 132).

52 Lend Lease submitted that notwithstanding the conditions precedent to the exercise of the option, Westfield acquired an equitable interest in the Property. It referred, in passing, to a line of cases in the High Court in which it has been held that a purchaser who has contracted to acquire property, but is not entitled to specific performance of the vendor’s covenant to convey, has an equitable interest in the property, falling short of beneficial ownership, to the extent to which it is entitled to equitable relief to protect its interest. (Legione v Hately (1983) 152 CLR 406 at 446; KLDE Pty Ltd v Commissioner of Stamp Duties (Qld) (1984) 155 CLR 288 at 300; Kern Corporation Ltd v Walter Reid Trading Pty Ltd (1987) 163 CLR 164 at 191-192; Stern v McArthur (1988) 165 CLR 489 at 522-523; Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 252-3).

53 In Stern v McArthur, Deane and Dawson JJ said (at 522-523):

“Any right to equitable ownership on the part of the purchaser is contingent only, being subject to the payment of the purchase money and being said to exist only so long as the contract remains specifically enforceable at his suit.
… it is not really possible with accuracy to go further than to say that the purchaser acquires an equitable interest in the land sold and to that extent the beneficial interest of the vendor in the land is diminished. The extent of the purchaser’s interest is to be measured by the protection which equity will afford to the purchaser. That is really what is meant when it is said that the purchaser’s interest exists only so long as the contract is specifically enforceable by him. Specific performance in this context does not mean specific performance in the strict or technical sense of requiring the contract to be performed in accordance with its terms. Rather it encompasses all of those remedies available to the purchaser in equity to protect the interest which he has acquired under the contract. In appropriate cases it will include other remedies, such as relief by way of injunction, as well as specific performance in the strict sense. As Sir Frederick Jordan put it: “Specific performance in this sense means not merely specific performance in the primary sense of the enforcing of an executory contract by compelling the execution of an assurance to complete it, but also the protection by injunction or otherwise of rights acquired under a contract which defines the rights of the parties”: Jordan, “Chapters on Equity in New South Wales”, Select Legal Papers, 6th ed (1947), p 52, n(e).”

54 This passage was approved in Chan v Cresdon Pty Ltd at 253.

55 Notwithstanding the criticism of this statement by Meagher JA in Chief Commissioner of Stamp Duties v ISPT Pty Ltd (1998) 45 NSWLR 639 at 654-5 noted by the High Court in Tanwar Enterprises Pty Ltd v Cauchi (2003) 77 ALJR 1853 at 1863, it is a considered statement of principle which, following Chan v Cresdon Pty Ltd, is binding on me. It is the basis of many decisions which have recognised that a purchaser under a contract, where the vendor’s obligation to convey is subject to an unfulfilled condition, has an equitable interest in the property which is sufficient to support a caveat, notwithstanding that the purchaser is not then entitled to an order for specific performance of the vendor’s obligation to convey, but is entitled only to equitable relief in the form of an order to compel the vendor to do that which is necessary on his part to be done to cause the condition to be satisfied, (Butts v O’Dwyer (1952) 87 CLR 267 at 282-283), and an injunction to restrain the vendor from dealing with the land inconsistently with the purchaser’s contractual rights. (Kuper v Keywest Constructions Pty Ltd & Anor (1990) 3 WAR 419 at 432; Jessica Holdings Pty Ltd v Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140 at 150-152; Re Henderson’s Caveat [1998] 1 Qd R 632 at 637-638, 642; Forder & Ors v Cemcorp Pty Ltd (2001) 51 NSWLR 486 at 492; and see Sahade v BP Australia Pty Ltd (2004) 12 BPR 22,149 at [37]-[46]).

56 Given that the option in the present case is in the form of an irrevocable offer, the equitable relief to which Westfield would be entitled against GPT until the option is exercised, is an injunction restraining a purported revocation of the offer or dealing with the property which was inconsistent with the Put and Call Option Deed, a declaration or order establishing the invalidity of a purported revocation, (Lennox v Cameron (1997) 8 BPR 15,939 at 15,954), and an order to compel GPT to do what was reasonably necessary to procure the fulfilment of the Conditions Precedent.

57 On the basis of these authorities, Westfield must be taken to have acquired a contingent equitable interest in the Property commensurate with its right to obtain equitable relief to restrain conduct in breach of the Put and Call Option Deed and to enforce its promise to do what was reasonably necessary to procure the fulfilment of the Conditions Precedent. I confess to difficulties in conceptualising a proprietary interest in terms of the availability of equitable relief to enforce the contract, where the consent of a third party is required before an obligation to transfer the property can arise, and that consent cannot be compelled. (McWilliam v McWilliam’s Wines Pty Ltd (1964) 114 CLR 656 at 660-661; Brown v Heffer (1967) 116 CLR 344 at 350, 351). Those difficulties become acute when I turn to the question whether it is a corollary of Westfield having acquired such a contingent equitable interest, that GPT has disposed of or parted with an interest in the Property.

58 The definition of “deal with” in clause 19(k) refers to a present disposition or alienation, not a mere potential future disposition or alienation. In Kulamma v Manadan [1968] AC 1062, the Privy Council considered whether a share faming agreement entered into by a lessee was an alienation or dealing with land. Their Lordships held that the agreement could not be considered as amounting to an alienation. A clause of the agreement provided that upon payment of certain moneys, the owner of the land would apply for and use his best endeavours to obtain the consent of the owner of the land to the transfer of one half of the lessee’s interest in the land. Their Lordships characterised this as a “possible future alienation” (at 1070).

59 Similarly, I do not regard the fact that GPT has entered a contract whereby it may be obliged to part with half its Interest in the future if Lend Lease does not exercise, and waives, its pre-emptive rights, as amounting to a present disposition or alienation of part of its Interest.

60 For the reasons I gave in Redglove Projects Pty Ltd v Ngunnawal Local Aboriginal Council [2004] NSWSC 880 at [26]-[35]) and the authorities there cited, the mere fact that GPT has entered into a contract, which is enforceable by injunction, not to deal with the property in a way inconsistent with the Put and Call Option Deed, does not mean that it has disposed of or alienated a part of its Interest. Nor would its amenability to mandatory injunction, or limited form of specific performance to enforce its obligation to attempt to procure a waiver of Lend Lease’s pre-emptive rights, mean that it had already given up part of its beneficial interest.

61 Lend Lease submits that if Westfield has acquired a contingent equitable interest in GPT’s share of the Property, GPT must have disposed of or alienated part of its Interest.

62 In Stern v McArthur, Deane and Dawson JJ, (at 523), when referring to the position of a purchaser under an unconditional contract of sale, but whose right to a transfer was contingent on the payment of the purchase price, said that the purchaser had acquired an equitable interest in the land measured by the protection which equity would afford him, and to that extent the vendor’s beneficial interest was diminished. I do not consider that it follows from the extrapolation of this statement to conditional contracts, that the measure of protection which equity would afford Westfield means that GPT has already parted with or disposed of an interest in the Property. Accepting, as I must, that Westfield has acquired a contingent equitable interest, its equitable interest is imposed on, not carved out of, the legal estate. (DKLR Holding Co. (No. 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510 at 518-520; Re Transphere Pty Ltd (1986) 5 NSWLR 309 at 311). GPT remains the owner of its Interest. It has not parted with the beneficial ownership. Such contingent equitable interest as Westfield has is commensurate with its right, which equity will protect, to compel GPT to honour its contract. It operates as an imposition on GPT’s title, not as a subtraction from it.

63 In my view, GPT has not parted with an interest in the Property. That is, it has not disposed of or parted with part of its Interest. Whilst GPT assumed obligations to Westfield in respect of its Interest by entering into the Put and Call Option Deed, it did not thereby alienate or dispose of the whole or part of its Interest. Accordingly, I do not consider that it has breached clause 9(a).

Was GPT’s Unconditional Dealing with its Rights Under the JOA a Breach of cl. 9(a)?

64 Lend Lease made a separate submission that a number of GPT’s “interests, rights and benefits” as owner of the property were dealt with by its entering into the Put and Call Option Deed, which did not depend on Lend Lease waiving its pre-emptive rights. It submitted that by clauses 2.3(e), 8.2, 23.1(b) and 23.1(c) of the Put and Call Option Deed of 17 February 2005, and by clause 2.2(b) of the deed of variation, GPT dealt with its rights by contracting with Westfield how it would exercise its rights under the Joint Ownership Agreement.

65 For the reasons I have given, an assumption of obligations to Westfield, not amounting to an alienation, does not constitute a “dealing” for the purposes of clause 9(a). I do not consider that the obligations GPT assumed to Westfield amounted to the alienation of its rights under the Joint Ownership Agreement. Assuming that its rights under the Joint Ownership Agreement are part of its Interest, GPT did not assign its rights, or any of them, to Westfield, by making a contract as to how it would exercise those rights.

66 In any event, in my view, GPT’s rights under the Joint Ownership Agreement were not part of its “Interest”. The definition of “Interests” in clause 2 refers to the Owners’ “interest, rights and benefits in the Property”. The expression “Property” extends to rights and obligations arising under or pursuant to agreements relating to the land or the improvements contemplated by clause 1. I do not consider that the reference in the definition of Property to agreements attaching or relating to the land included the Joint Ownership Agreement itself. The Joint Ownership Agreement regulates the parties’ rights as owners of the Property, and this expression extends to other agreements which may be entered into. It would not make sense to say that the Owners hold their interest, rights and benefits under the Joint Ownership Agreement, which consist of the choses in action each has against the other Owner and against AFM, in the proportions of 50% each.

67 Nor are GPT’s or Lend Lease’s rights under clause 9 an interest or rights “in” the Property. The pre-emptive rights exist in relation to the Property. However, until the conditions for the exercise of the pre-emptive rights are met, they are not an interest in the Property. In McKay v Wilson (1947) 47 SR (NSW) 315 Street J said (at 325):

“But an agreement to give ‘the first refusal’ or ‘a right of pre-emption’ confers no immediate right upon the prospective purchaser. It imposes a negative obligation on the possible vendor requiring him to refrain from selling the land to any other person without giving to the holder of the right of first refusal the opportunity of purchasing in preference to any other buyer. It is not an offer and in itself it imposes no obligation on the owner of the land to sell the same. He may do so or not as he wishes. But if he does decide to sell, then the holder of the right of first refusal has the right to receive the first offer, which he also may accept or not as he wishes. The right is merely contractual and no equitable interest in the land is created by the agreement.”

68 For these reasons, I do not accept that the unconditional promises GPT made to Westfield as to how it would exercise its rights under the Joint Ownership Agreement, was a “dealing” with its “Interest” in breach of clause 9(a) of the Joint Ownership Agreement.

Conclusion on the First Issue

69 For these reasons, I am of the view that GPT has not dealt with its Interest. Nor has it breached clause 9(a).

Was Any Dealing Otherwise than as Provided For in Clause 9(a)?

70 This question only arises if I am wrong on the first issue.

71 Westfield submitted that the Put and Call Option Deed envisaged that the procedures in clause 9 of the Joint Ownership Agreement would be followed. Even if entering into the Put and Call Option Deed was a dealing, the deed allowed for the procedures in clause 9 to be implemented. By requiring GPT to request a waiver of Lend Lease’s pre-emptive rights, the deed contemplated that GPT could reach an agreement with Lend Lease such that it could deal with its Interest otherwise than as provided for by clause 9, consistently with the opening words of clause 9(a).

72 The difficulty with this argument is that it implicitly assumes there has been no dealing contrary to clause 9(a) merely by GPT entering into the Put and Call Option Deed. GPT did not seek Lend Lease’s agreement to a dealing with its Interest prior to entering into the Put and Call Option Deed. Nor, if the conditional Call Option is a dealing, does it comply with the procedures in clause 9. No Transfer Notice has been given.

73 In any event, by the Deed of Variation, Westfield may require GPT RE to instigate the procedures in clause 9 applicable to a Selling Owner. That does not mean that the procedures in clause 9 will be followed. Westfield may require GPT to instigate those procedures, or it may not. Further, if, contrary to my view, GPT dealt with its Interest, it did so first by the deed of 17 February, 2005. Later amendments to that deed would not save any prior breach of the Joint Ownership Agreement from being an Event of Default.

74 Therefore, if I had come to a different conclusion on the first issue, GPT would have breached clause 9(a).

No Notice of Default in Respect of Clause 9(a) Breach

75 If I am wrong on the first issue, it was common ground that no notice had been given under clause 10(a) of the Joint Ownership Agreement allowing Lend Lease Management a reasonable opportunity to remedy the defaults. Accordingly, at this stage, Lend Lease would not be entitled to acquire GPT RE’s interest at valuation, and GPT would not be deemed to have served a Transfer Notice for the purposes of clause 9(c).

Clause 9(c): “Wish to Deal”

76 The fourth and fifth issues raise overlapping considerations. Lend Lease submitted that on any meaning of “deal with”, GPT wished to deal with its interest within the meaning of clause 9(c). This was so, notwithstanding that its contract with Westfield was conditional. GPT was not indifferent about the satisfaction or waiver of the conditions. It was required by clause 2.2 of the deed of 17 February, 2005 to do what was reasonably necessary to procure their fulfilment. On 1 June 2005, GPT asked Lend Lease to waive its pre-emptive rights under the Joint Ownership Agreement, to allow GPT to transfer part of its interest in the Sunshine Plaza Shopping Centre to Westfield without complying with clause 9 of the Joint Ownership Agreement, if the unit holders voted to approve the internalisation of the General Property Trust at the Unitholder Meeting to be held on 2 June 2005. The unit holders gave their approval to the proposed “internalisation”. There was other evidence in the form of statements to unitholders that GPT had a positive wish to transfer half of its Interest to Westfield, and would do so if it could. The sale of half of its Interest in the Sunshine Plaza was but one of three proposed sales. It advised unitholders on 20 May, 2005 that “the sale of interests in three GPT retail assets may be to Westfield alone, if APPF does not exercise its pre-emptive rights, or both to Westfield and APPF, if those pre-emptive rights are exercised.” This showed a wish or a desire to sell a part of its Interest, either to Lend Lease or to Westfield.

77 On 1 July 2005, GPT RE stated that GPT did not intend to deal with its Interest (as those terms are defined in the Joint Ownership Agreement) unless and until Lend Lease waived its pre-emptive rights under the Joint Ownership Agreement. It asserted that in the absence of such a waiver, GPT did not wish to deal with its Interest. However, it was a term of the Put and Call Option Deed of 17 February 2005 that GPT Management do all things reasonably necessary to procure that the Conditions Precedent were fulfilled. These included that Lend Lease not exercise its pre-emptive rights under the Sunshine Plaza Joint Ownership Agreement in respect of the Property. Although this provision was deleted on 17 June 2005, that was not attributable to any change of mind or change of heart.

78 GPT contended that it was unreasonable and absurd to construe the phrase “wishing to deal” as including a conditional wish or desire on the part of an Owner to deal with part of its Interest, at least where the wish to deal was expressly conditional on the non-exercise or the waiver by the other Owner of its pre-emptive rights. Lend Lease’s riposte was that the word “wishing” should be given its plain English meaning of wanting or desiring something, particularly, a “distinct mental inclination towards the doing, obtaining, attaining etc of something; a desire felt or expressed” (Macquarie Dictionary, 3 ed). Lend Lease submitted that this definition contains an element of fixity or determination and would not capture a passing thought, or whim, or casual enquiry, or a mere wish unaccompanied by an effort to obtain it. It submitted, correctly in my view, that GPT’s wish to transfer part of its Interest in the Property was not conditional. Rather, it is the exercise of the option under the Deed which is conditional. GPT wishes to transfer part of its Interest, but only intends to transfer part of its Interest to Westfield if the conditions in the Put and Call Option Deed are satisfied.

79 GPT acknowledges that this is a possible interpretation of clause 9(c). Indeed, I think it accepts that on a literal reading of clause 9(c), it wishes to deal with its Interest. However, it submits that to give clause 9(c) such a literal construction would be to produce an unreasonable and absurd result which flouts business commonsense. I will return to the difficulties which, it is said, would be caused by a literal construction of clause 9(c). I do not consider they are such as to require a reading down of the word “wish” in clause 9(c).

80 Westfield and GPT relied upon a decision of Hoffman J (as his Lordship then was) in Re Sedgefield Steeplechase Co. Ltd [2000] 2 BCLC 211. His Lordship reviewed a number of cases in which pre-emptive rights in companies’ articles of association were construed. The articles typically required shareholders who “desired”, or “intended”, or “proposed”, to transfer their shares, to first offer the shares to other members. His Lordship concluded (at 220 and 221), that provided the shareholder who intended to transfer its shares also intended to comply with the pre-emption rights contained in the articles of association, it was entitled to make a contract for the transfer of the shares conditionally upon the deletion of the relevant article, without being required to serve a transfer notice at an earlier stage.

81 His Lordship said (at 221):

“ … I do not think that an intention to transfer shares to an outsider conditional upon the pre-emption rights having been deleted by special resolution can be an intention which creates an immediate obligation to give a notice. The shareholder is entitled to say that he has no intention of violating any rights of pre-emption. He intends to transfer his shares strictly in accordance with the articles as they stand at the time of the transfer. And, again by the same reasoning, I do not think it matters that the shareholder has bound himself to transfer to the outsider conditional upon the deletion of the articles. Such an agreement equally contemplates no intention to infringe any right of the other shareholders. …
The general principle which I would derive from the cases is that a shareholder who has done nothing inconsistent with an intention to comply, at the appropriate moment, with the subsisting provisions of the articles, cannot be required to serve a transfer notice at an earlier stage. The obligation attaches only when the shareholder has entered into arrangements … which place him under a contractual obligation to execute and deliver a transfer in violation of the rights of pre-emption. ”

82 Re Sedgefield Steeplechase Co. Ltd, and the cases which it considered, including Lyle & Scott Ltd v Scott’s Trustees [1959] AC 763, concerned the construction of particular contracts. I do not consider that a general principle can be derived as to how a contract containing pre-emption rights should be construed where a party wishes to deal with its shares or property conditionally upon the pre-emption rights being waived, or the relevant contractual provision being deleted. It does not appear to me that a contract framed in the terms of a party’s wish or desire to do something, should necessarily be construed in the same way as a contract which uses different language, for example, what a party intends or proposes. Whether such contracts should be construed in a similar way, will depend upon the whole of their terms. In the present case, if clause 9(c) has the promissory effect for which Lend Lease contends, that is, of obliging GPT to give a Transfer Notice once it has formed a wish to deal with its Interest, I do not think it would matter that GPT does not intend to transfer its Interest in property in violation of Lend Lease’s rights of pre-emption. The question would not be whether GPT intends to infringe Lend Lease’s contractual rights, but whether it has done so by not giving a Transfer Notice after it formed the relevant wish.

83 GPT submitted that even on Lend Lease’s construction of clause 9(c) it had not breached clause 9 as it had sought to reach agreement with Lend Lease to selling half of its Interest in the Property to Westfield, in a manner outside the scope of the transfer regime established by clause 9. I do not accept this submission. GPT formed its wish to transfer the property to Westfield prior to entering into the Put and Call Option Deed of 17 February, 2005. It did not attempt to make any such agreement with Lend Lease, until it asked Lend Lease on 1 June 2005, to waive its pre-emptive rights.

Is Clause 9(c) Promissory or Facultative?

84 Clause 9(a) only prohibits an Owner from dealing with its Interest otherwise than as provided for in clause 9, if the Owners do not otherwise agree. It thus allows an Owner who contemplates selling its Interest to negotiate with the other Owner, before it is required to comply with the procedures in clause 9. It would be impossible for an Owner to open such negotiations without evidencing a wish to deal with its Interest. On Lend Lease’s construction of the clause, the Owner wishing to sell would be required to deliver the Transfer Notice under clause 9(c), and the opening words of clause 9(a) would have no work to do.

85 Lend Lease’s response to this point was that prima facie the opening words of clause 9(a) are redundant because parties to an agreement can always agree to vary it. It submits that the reason for the inclusion of the opening words in clause 9(a), is to allow an Owner to have and act on a wish to deal with its Interest without triggering a breach of clause 9(c), so long as all that the Owner does is to seek the agreement of the other Owner under the opening words of clause 9(a).

86 This is an attractive argument, but it does not wholly meet the point. Clause 9(a) prohibits an Owner from dealing with its Interest otherwise than as provided in clause 9 unless the parties have reached an agreement contrary to the requirements of clause 9. It does not exempt an owner from the requirements of clause 9 merely because an Owner wishes to negotiate a contrary agreement with the other Owner. The opening words of clause 9(a) provide an exception to the prohibition on dealing, not to the asserted obligation to give a Transfer Notice under clause 9(c).

87 Another difficulty with Lend Lease’s construction is that clause 9(c) stipulates no time within which a Selling Owner, wishing to deal with its Interest, must give the requisite notice. Lend Lease contends that it must give the notice within a reasonable time: the reasonableness of the time to be assessed by reference to what is required to be done in order to prepare and serve a notice. That would be a curious result, given that the procedures in clause 9 have to be followed strictly, which suggests the parties should have certainty as to the times by which they must act. Later clauses specify precise periods within which things are to be done.

88 On Lend Lease’s construction, a reasonable time for giving a Transfer Notice would be a short period after the Selling Owner formed the requisite wish. Given that the procedures in clause 9 have to be followed strictly, on Lend Lease’s construction of the clause, any party who wished to transfer the whole or part of its Interest would be at peril of not being able to give a Transfer Notice under clause 9(c) itself, but of being in breach of clause 9(c) by not having given the notice within a short time after the formation of the wish, with the consequence that it was deemed to have served a Transfer Notice in accordance with clause 10(c) and would be unable to elect not to proceed after receiving the valuation.

89 These considerations do not require a reading down of the word “wishing” in clause 9(c). As Mr Jackman SC for Westfield submitted, when clause 9(c) is read in the context of clause 9(a), it should be construed as a merely facultative provision.

90 Clause 9(a) contains the general prohibition on an Owner dealing with its Interest. Clause 9(c) and the following sub-clauses describe the procedures to be followed if an Owner wishes to deal with its Interest. In my view, clause 9(c) is facultative. That is, it sets out what an Owner must do if it wishes to deal with its Interest in the way permitted by clause 9. The first step is to serve a Transfer Notice. The steps which follow the service of a Transfer Notice are then provided for. In my view, a Selling Owner does not breach clause 9(c) if it forms a wish to deal with its Interest and does not serve a Transfer Notice. Rather, unless it has served a Transfer Notice and then acts in conformity with the procedures provided for in clause 9, it may not deal with its Interest. It will breach clause 9 if it contravenes clause 9(a), but it will not breach clause 9 merely by not serving a Transfer Notice within a reasonable time of forming a wish to deal with its Interest.

91 This is consistent with the opening words of clause 9(c) and their reference back to clause 9(a). Clause 9(c) does not apply to an “Owner” wishing to deal with its Interest, but to a “Selling Owner” wishing to deal with its Interest. The term “Selling Owner” is not defined as such. It appears in clause 9(a) as being an Owner who is prohibited from dealing with its Interest other than as provided in clause 9. An Owner does not become a “Selling Owner” unless it has dealt with its Interest or has instigated the procedures in clause 9 for it to do so. An Owner who wishes to sell, but has not at that time dealt with its Interest, does not become a Selling Owner until it serves notice in accordance with clause 9(c).

92 Lend Lease submitted that the use of the word “must” in clause 9(c) showed that the clause is promissory and not merely facultative. That is, the clause contained a promise by each party that if it formed a wish to deal with its Interest it would serve the notice, so that the failure to serve the notice was an Event of Default. However, “must” does not always refer to an obligation. The Macquarie Dictionary (3rd ed) defines it in its primary sense as indicating obligation or necessity. In this case, in clause 9(c), “must” indicates the necessary step which an Owner must take if it wishes to deal with its Interest.

93 The contrary interpretation would leave little work for clause 9(a). It would be impossible for an Owner to deal with its Interest, without having first formed a wish to deal with its Interest. In other words, there would always be a breach of clause 9(c), and an Event of Default, before there was a dealing in contravention of clause 9(a). That is not how the clause is structured.

94 Reading clause 9 as a whole, it contains a prohibition on dealing in clause 9(a), a qualification, in clause 9(b), on what dealings may be permitted under the following sub-clauses, and the procedures for permitted dealings in clause 9(c) and following. So understood, there is no need to read down the words of clause 9(c) to avoid what is said to be the unbusinesslike consequences of giving the word “wishing” its natural meaning.

95 Just as I do not find assistance from Re Sedgefield Steeplechase Co. Ltd in construing the phrase “wishing to deal” in clause 9(c), nor do I find assistance in Lyle & Scott Ltd v Scott’s Trustees [1959] AC 763 on whether clause 9(c) should be construed as being promissory or merely facultative. In that case, the House of Lords did not read an article which provided that “any … shareholder who is desirous of transferring his ordinary shares shall inform the secretary in writing of the number of ordinary shares he desires to transfer …” as merely facultative. Viscount Simon said (at 775) that:

“ I have already indicated that a shareholder who has agreed to sell his shares and has received the price is to be deemed to be desirous of transferring them. At once, therefore, the machinery of the article is put in motion and he must inform the secretary of the number that he desires to sell, which is ex hypothesi the number he has agreed to sell. The price is then fixed in the manner prescribed by the article and so the matter proceeds. ”

96 Lord Reid said (at 779):

“ Another argument was that article 9 cannot be used as a compulsitor, that it is an avenue open to a shareholder who desires to sell his shares, but that it cannot be compelled to use it. That is true in a sense. No action can be taken against a shareholder who merely says that he wishes to sell or does something which shows that that is his intention. But when he goes further and does something which is a breach of his obligations under the article, the position appears to me to be quite different. Unless some action can then be taken to assert the other shareholders’ rights under the article there is a wrong without a remedy.”

97 It is plain from the last part of the passage quoted from the speech of Lord Reid why decisions on how one contract should be interpreted are usually of little assistance in construing another contract in different terms. The absence of a prohibition on a shareholder transferring his shares otherwise than in accordance with the stipulated procedure was clearly material to the construction of the article in that case. I do not think there is anything in that decision, or any of the later English cases reviewed by Lord Hoffman in Re Sedgefield Steeplechase Co. Ltd, which indicates that a different construction of clause 9 should be adopted.

Conclusion on Clause 9(c)

98 In summary, I am of the view that GPT did “wish to deal” with its Interest within the meaning of clause 9(c). It wishes to sell half its Interest. It wishes to sell that part of its Interest to Westfield if the pre-emptive provisions of the Joint Ownership Agreement are not waived. It also has the wish that Lend Lease waive its pre-emptive rights to allow the transfer to Westfield to occur. The condition in clause 9(c) for the service of a Transfer Notice is satisfied. However, GPT has not failed to comply with, observe or perform any of its obligations or undertakings in clause 9(c) by not serving a Transfer Notice. It simply has not taken advantage of the facility which that clause provides if it wishes to deal with its Interest. GPT Management and GPT RE did not commit an Event of Default. Accordingly, they are not deemed to have served a Transfer Notice in accordance with clause 10(c).

99 For the reasons previously given, GPT did not breach clause 9(a).

100 It was not submitted that GPT RE is not entitled to the declarations and orders in the form sought in the amended summons, if it established that it and GPT Management have not breached the Joint Ownership Agreement.

Declarations and Orders

101 A declaration should be self-contained. I make the following declarations and orders:

1. Declare that the plaintiff is not a “Selling Owner” within the meaning of clause 9(c) of the Joint Ownership Agreement dated 25 June 1992 between Perpetual Trustee Co. Ltd, Australian Prime Property Fund Custodian Pty Ltd and Australian Funds Management Ltd (“the Joint Ownership Agreement”).

2. Declare that the first defendant is not presently entitled to invoke the valuation process stipulated in clause 8 of the Joint Ownership Agreement;

3. Declare that no Event of Default has occurred within the meaning of clause 10 of the Joint Ownership Agreement;

4. Order that the first defendant, by itself, its servants and agents, be restrained from causing any valuation of the plaintiff’s Interest (as defined in the Joint Ownership Agreement) to be undertaken purportedly pursuant to clause 8 of the Joint Ownership Agreement by reason of events which occurred to the date of hearing;

5. Order that the second defendant by itself, its servants and agents, be restrained from co-ordinating any valuation process of the plaintiff’s Interest (as defined in the Joint Ownership Agreement) purportedly pursuant to clause 8(g) of the Joint Ownership Agreement, by reason of events which occurred to the date of hearing.

102 I will hear the parties on costs.

******