New York Boutique Pty Ltd v Lend Lease Property Management (Australia) Pty Ltd, GPT Management Ltd, Government Superannuation Office

[2001] NSWADT 55

CITATION:	New York Boutique Pty Ltd -v- Lend Lease Property Management (Australia) Pty Ltd, GPT Management Ltd, Government Superannuation Office [2001] NSWADT 55
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT/CROSS RESPONDENT New York Boutique Pty Ltd RESPONDENT/CROSS APPLICANT Lend Lease Property Management (Australia) Pty Ltd GPT Management Ltd Government Superannuation Office
FILE NUMBER:	015012; 015021
HEARING DATES:	09/03/01, 27/03/01
SUBMISSIONS CLOSED:	03/27/2001
DATE OF DECISION:	04/05/2001
BEFORE:	Donald B - Judicial Member
APPLICATION:	Claim for relief against forfeiture - Claim for surrender of possession of premises
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994 Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Trade Practices Act 1974 (Cth)
CASES CITED:	Masters v. Cameron (1954) 91 CLR 353 Summertime Holdings Pty Ltd v. Environmental Defenders Office Ltd (unreported,16 October 1998 Taylor Farms (Australia) Pty Ltd v A Calkos Pty Ltd [1999] NSW SC 186 Federal Airports Corporation Ltd v Makucha Developments Pty Ltd (1993)115 ALR 679 Federal Airports Corporation Ltd v Makucha Developments Pty Ltd (1993)115 ALR 679 Legione v Hateley (1983) 152 CLR 406 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
REPRESENTATION:	APPLICANT/CROSS RESPONDENT K Andronos, barrister RESPONDENT/CROSS APPLICANT V F Kerr, barrister
ORDERS:	1. Gpt Management Ltd and Government Superannuation Office to be granted possession of Shop ML35 in Bankstown Square by New York Boutique Pty Ltd no later than 1 May 2001; 2. New York Boutique Pty Ltd to vacate the Shop and otherwise comply with its obligations on termination of the Lease in respect of vacating the premises on or before 1 May 2001; 3. New York Boutique Pty Ltd to continue to pay rent and the parties otherwise to observe the covenants of the Lease until 1 May 2001.

1 Cross applications were brought before the Administrative Decision Tribunal (ADT) under the Retail Leases Act 1994 and have been heard together. The applications both relate to rights to maintain or regain possession of Shop ML35 in the Bankstown Square Shopping Centre (“the Shop”), currently occupied by New York Boutique Pty Ltd ("New York") and owned by GPT Management Ltd ("GPT") and Government Superannuation Office ("GSO"), managed by Lend Lease Property Management (Australia) Pty Ltd ("Lend Lease"). The present claim by New York is to restrain its eviction from the Shop and by Lend Lease, on behalf of the owners and as manager, to regain possession.

Findings of Fact

2 New York carries on the business of retailing women's clothes in the Sydney market. It has been in business since 1984 and currently operates seven shops in the metropolitan area, in the City, Miranda, Liverpool, Castle Hill, Chatswood and at the subject premises of Bankstown Square. Three of its leases are currently with the Lend Lease group and during its trading history it has also leased premises from the Lend Lease group in Newcastle, Penrith and Wollongong.

3 The New York lease of the Shop began in July 1984 when the premises were owned by the Burns Phillip Trustee Company Ltd which was replaced by a subsequent lease between the same parties which continued until November 1993. As at 1994 the premises were owned by the Perpetual Trustee Company Ltd and the current Lease was entered into between Perpetual and New York some six months after the expiration of the prior lease, commencing 27 May 1994 ("the Lease") being a five year Lease with no options to renew expiring on 26 May 1999.

4 Part B of the Lease establishes the procedure for the ending of the Lease with notice provisions as to either renewal, a monthly hold-over or vacation of the premises. It is not known whether those procedures were expressly followed so after the expiration of the Lease, New York continues in occupation as a monthly tenant either pursuant to the Lease or possibly under the general law by way of holding-over under the terms and conditions of the Lease; either way the terms and conditions of the Lease apply.

5 Although there was no evidence as to the precise date, GPT and GSO had acquired the premises before February 1999 and Lend Lease had been appointed manager. In February 1999 New York appointed a negotiator to open negotiations for a further Lease following May 1999 and negotiations with Lend Lease commenced. The matter dragged on, involving a change of personnel within Lend Lease and by March 2000 a deal had still not been concluded, New York continuing to pay rent at the rate under the Lease.

6 Some time after March 2000 Mr. Lucchinelli became the Lend Lease executive with responsibility for retail leases at Bankstown Square including the Shop and by 5 June 2000 the negotiations resulted in a detailed letter of offer from Lend Lease to New York for a five-year term to commence 1 June 2000. The key change was to be a rent reduction from $126,000 per annum to $120,000 per annum (subject to an inflation formula).

7 Importantly the letter of offer included within "Special Conditions":

• This offer is subject to final approval of the Lessors.
• You must sign and return the Lease documents and pay solicitors' fees and disbursements as invoiced to you within 40 days of our sending them to you.
• When accepting this offer please sign and return the enclosed direct debit authority.

8 The letter of offer also stated "to accept this offer you must return to us …" a number of documents including "*the signed Acceptance" and "Our disclosure Statement…signed by you". An Acceptance of Offer form was then included. The letter of offer included a Disclosure Statement under the Act which also in its terms required signed acknowledgment.

9 On or about 7 June 2000 Mr. Ferny, the chief executive of New York, either directly or through his negotiator, returned a hand marked-up copy of the Letter of Offer proposing changes to the inflation formula, the tenancy design review fee and the security amount. Mr. Ferny had made no notation against the requirement in the letter for personal covenants by directors and shareholders, ie guarantees. A month later by letter of 7 July 2000 Mr. Lucchinelli responded on two issues including those sought to be varied by New York. No specific reference was made to personal covenants and that letter included a concluding statement "All other terms and conditions are as per our Letter of Offer". This letter also stated "Please return executed letter of offer and disclosure statement to our office so that we may prepare solicitors instructions."

10 Mr. Ferny then responded on 18 July 2000 with a further handwritten annotation of the 7 July letter, principally on the key issues of the inflation formula, the time for refurbishment of the Shop and the percentage marketing levy.

11 The next step in the negotiations is revealed in paras 11 and 12 of Mr. Ferny's affidavit. He gave evidence that he met with Mr. Levin, General Manager, Lend Lease Retail, (Mr Luchinelli’s superior) with whom he says he had regular dealings in relation to any of his problems with Lend Lease tenancies. This meeting was either late July or early August because Mr. Levin left Lend Lease Retail about mid-August 2000. In his oral evidence Mr. Ferny said that he spoke only of personal guarantees and that Levin said words to him to the effect that "You won't have to supply personal guarantees." However, they did not talk about the refurbishment and Ferny only recalls that agreement for the refurbishment date to be before 1 March 2001occurred later.

12 Then by letter of 11 September 2000, Mr. Lucchinelli for Lend Lease sent a further reply accepting the New York position on the inflation factor, the tenancy design review fee, the refurbishment date and the marketing levy, but again including the concluding expression, "All other terms and conditions as per our Letter of Offer". Notably there was no reference in this letter to personal guarantees or covenants. The letter attached a further disclosure statement for "execution" and return so "we may proceed with solicitor's instructions urgently."Mr. Ferny's evidence was that he read this letter as containing all the terms of the deal and that accordingly all points had been negotiated including no personal covenants.

13 There was disagreement in the evidence as to the communications following that letter until 26 October, Mr. Ferny saying that he had said to Mr. Lucchinelli "I have no problem with it [the letter of 11 September] that's great, thank you very much", while Mr. Lucchinelli says that conversation did not take place.

14 In any event, the evidence is clear that on 26 October Mr. Lucchinelli left a message with Mr. Khoury, Mr. Ferny's assistant, which Mr. Lucchinelli recorded in his diary as "Left message - back date still okay but need documents back". ( I note that I do not find this message is likely to have conveyed any sense of urgency in the situation.) There were then missed telephone calls on or about 6 to 7 November between Ferny and Lucchinelli seeking to speak with each other but on the evidence those conversations contained no specific words referring to lease negotiations or the documentation.

15 Mr Ferny agreed in cross examination that he was well aware that until the lease documents were signed, both parties in a monthly holdover situation were commercially and legally exposed to a decision by the other to give notice terminating the lease. He also conceded that the statement that " This offer is subject to final approval of the Lessors" meant that Lend Lease could legally withdraw from the deal.

16 On about 10 November 2000 the parties became embroiled in a dispute over the airconditioning at Bankstown Square which became very serious to the point that New York was late in opening on some occasions and on another occasion did not open for four full days, contrary to the requirements of the Lease. It also resulted in New York withholding rent and making a claim for abatement. New York did not pay either the December or January rents which resulted in standard letters from Lend Lease of 7 December 2000 and 8 January 2001; notably these did not include an express notice to New York that termination of the Lease was under consideration if payment was not made.

17 Annexed to Mr. Lucchinelli's affidavit is correspondence during December and January concerning the air-conditioning problem in which Lend Lease acknowledged its responsibility but did take issue with New York's response. That correspondence is in attachments "L" to "X" of Mr. Lucchinelli's affidavit and deals with the state of the air-conditioning, the complaints concerning closures, the claims for abatement and the reminders as to non-payment of rent. Notably on 20th December 2000, Lend Lease included New York in its circular letter referring to a program that was to proceed over the next 'couple of months'.

18 Then, importantly Mr. Ferny gave evidence of a conversation on 29 January 2001 that in a telephone conversation with Mr. Ettorre, the retail manager for Bankstown Square, (who the evidence established reported to Mr. Lucchinelli), that:
Ettorre: I want to have a meeting with you to resolve the air-conditioning issues. What about next Wednesday, 31st. If Wednesday is not suitable, I will be away Thursday, Friday of that week and I will be available Monday 5 February.
Ferny: I can't confirm that I can meet with you by this Wednesday (31st) but next week is fine.
Ettore: Fine, I'll get back to you.

19 There was no challenge to that evidence in cross-examination and Mr. Ettore was not called as a witness for Lend Lease. Accordingly, Mr. Ferny's evidence on that point stands.

20 Then on 31 January 2001 Lend Lease served notice on New York, referring to the Lease of 27 May 1994 and giving one month's notice to vacate the premises.

21 On 2 February 2000 Mr. Lucchinelli phoned Mr. Ferny and said:
Lucchinelli: "Have you received the lock-out notice? Sorry, but that's not the way I normally handle this type of thing. However, it is time we parted company."
Ferny: I intend to fight this, I'm staying. I bought over $200,000 stock for the Shop. I have to stay.
Lucchinelli: I'll get back to you.

22 On 7 February 2001 New York commenced these proceedings and on 8 and 9 February 2001 it paid the outstanding rent.

23 Mr. Lucchinelli gave evidence that on about 22 November 2000 he had begun negotiations with Joi Pty Ltd for a lease of the Shop. Negotiations continued and resulted in the Letter of Offer of 17 January 2001 which was accepted on 20 January 2001 with a series of amendments to the Letter of Offer, the deletion of the personal guarantee clause and a handwritten addition on the last page of the accepted disclosure statement "Subject to Joi or a solicitor's response in Joi/Lend Lease Standard Lease.” Lend Lease ‘acceptance’ of 29 January 2001 included the statement: "We do not agree with your deletion of the provision of covenantors" and then went on to refer to the preparation of the lease documents.

24 Mr. Lucchinelli in his evidence confirmed that he was generally aware of the need for retail traders to buy stock some months in advance of any particular selling period. He also indicated he was generally aware that the annual turnover of the Shop was in the order of $500,000 to $600,000 at retail with a mark-up of over 100%. It is reasonable to infer from this that he generally understood that New York would need to make a substantial financial commitment to stock in advance of any trading period. He was not precisely aware of when New York did its buying.

25 In his evidence Mr. Lucchinelli also confirmed that he was aware that New York had been a tenant of the Shop for at least six years and that it had other shops with Lend Lease.

26 The evidence confirms that except for the dispute over the air-conditioning which led to the withholding of rent, there were no other actions by New York on the basis of which it could be said to be anything other than a good tenant.

27 Mr. Ferny stated that by mid-September he was quite satisfied that he had completed the commercial deal with Lend Lease for the renewal of the Lease. He accepted his negotiator’s invoice in September considering the negotiator’s work was complete. However, Mr. Ferny clearly conceded that the legal documentation would need to be put in place and that based on his experience with Lend Lease, any problems would be able to be worked out. Mr. Ferny acknowledged that he understood there was a real difference between the commercial deal having been done and the legal requirements being put in place. It is fair to say, without being critical of him, that he was simply mistaken in his view that the letter of 11 September contained all of the items agreed between the parties. It quite clearly did not and expressly referred to previous correspondence. Mr. Ferny clearly trusted Lend Lease to implement the commercial deal, stating that he did not generally seek legal advice on his leases. In relation to the personal guarantee issue, he could also trust Lend Lease in his mind because similar requests for guarantees had always been dropped when the leases were drafted.

A new lease

28 New York's principal claim is that the facts disclose that a final agreement had been entered into between New York and the owners of the Shop through Lend Lease for a new lease and that the Tribunal should effectively make an order that the parties execute a lease incorporating the agreed terms.

29 Lend Lease challenges the jurisdiction of the Tribunal to determine that issue first because it says that there must be an 'existing' retail shop lease for jurisdiction to arise and secondly that s.72 only empowers the Tribunal to make orders in relation to existing leases. In this case the claim is for a new lease.

30 Because of the conclusion to which I have come on whether an agreement has been reached, it is not necessary to decide the jurisdiction question.

31 In my opinion applying the well-known law of contract, generally known as the Masters and Cameron principles, (Masters v. Cameron (1954) 91 CLR 353), agreement in the form of a contract had not been concluded in this case. The issue quite simply is whether there is clear evidence of a shared intention to be legally bound notwithstanding that a future document may also be brought into existence in relation to the contract.

32 The law was usefully reviewed by Young J in Summertime Holdings Pty Ltd v. Environmental Defenders Office Ltd (unreported,16 October 1998):
"… there are four classes of cases where parties have apparently agreed on all the terms of their bargain, but contemplate some further document. The first class is where the parties intend to be immediately bound despite that their terms will be restated in a fuller or more precise form. Secondly, they may have made a final agreement but made performance of one or more of the terms conditional upon the execution of a formal document. Thirdly, they may have intended that there was no contract at all between them until the formal contract was entered into. Fourthly, they may have intended to be bound immediately whilst expecting to make a further contract in substitution for the first contract containing, by consent, additional terms."

33 Having heard the totality of the evidence as summarised above, I have no doubt that the parties had reached finality on the commercial terms for a new lease; some of those were agreed between New York and Mr. Lucchinelli and the important other condition removing personal guarantees was agreed at a more senior level with Mr. Levin. However, the express terms of the documents themselves, the importance of the transaction given the financial dimensions of it and its term, and the specific understanding and expectation of both parties was that the legal agreement would follow, incorporating matters agreed and sorting out any problems not properly recorded. Mr. Ferny, while having regarded himself as able to trust Lend Lease in this regard, conceded that there were clear legal steps yet to take place.

34 For that reason I do not think it is open to this Tribunal to determine as a matter of contract law that a binding Lease Agreement had been yet entered into. Certainly New York did not begin to pay a lower rent as of September and indeed when finally paying the rent, notwithstanding the dispute, it did so at the rate prevailing under the Lease.

35 Young J observed that:

"One of the principal guidelines is that contracts for the sale of land are usually expected to be by formal document duly exchanged and that courts have difficulty in accepting that a person who is about to buy or sell valuable real estate for a large sum of money would wish to be bound unless there was a formal contract."

The same observation generally applies to commercial leasing.

Unconscionability

36 The next claim of New York is that the conduct of the Lend Lease group has been unconscionable and that pursuant to s.51AC of the Trade Practices Act 1974 (Cth), this Tribunal can make certain orders relating to the lease of the Shop. I should note that I invited the parties to consider the application of those provisions in this case.

37 Lend Lease challenges the availability of s.51AC in proceedings before this Tribunal on a number of grounds including that:-

(a) This Tribunal only has power expressly conferred on it by an enactment, s.37, Taylor Farms (Australia) Pty Ltd v A Calkos Pty Ltd [1999] NSW SC 186.

(b) Jurisdiction to provide remedies under the Trade Practices Act is only conferred on "the several courts of the State" (s.86, Trade Practices Act) and the ADT is not a Court.

(c) Part 7A of the Retail Leases Act 1994 contains the proposed unconscionability jurisdiction for this Tribunal and it has not yet been proclaimed to commence.

38 It was agreed between the parties that the terms of s.51AC of the Trade Practices Act track precisely the wording of the proposed s.62B (unconscionable conduct in retail shop lease transactions) in the proposed Part 7A.

39 In those circumstances it is my opinion that the intention of the NSW legislature at this time in relation to unconscionability claims at large in the context of the Retail Leases Act is that such a jurisdiction is not yet in place for this Tribunal. Accordingly, whether or not the first two arguments of Lend lease are a bar to jurisdiction, I am satisfied that the rights under s.51AC cannot be the subject of remedy in this Tribunal.

40 However, in my opinion, that does not exclude the application of established equitable principles of unconscientiousness or unconscionability in applications for orders clearly within the jurisdiction of this Tribunal in circumstances where those principles should properly be applied, eg in proceedings to regain possession or resist eviction as now discussed.

Order for possession

41 Lend Lease seeks an order for possession consequent upon the issue of the Notice of 31 January 2001 terminating the Lease of 27 May 1994; either under Part B of the Lease or the general law, this Lease is now operating as a monthly tenancy otherwise on the terms and conditions of the Lease.

42 New York contends that the Tribunal can grant relief against the enforcement of the Notice to quit under its existing powers and that the relevant principles in determining whether relief against termination of the Lease should be granted are the equitable principles of unconscionability referred to in cases such as Federal Airports Corporation Ltd v Makucha Developments Pty Ltd (1993)115 ALR 679. New York points to the comment by Davies J in that case who first referred to Legione v Hateley (1983) 152 CLR 406 and Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 and observed: "These cases demonstrate an acceptance of the general principle of equity, that a Court may relieve against the detriment caused by unconscionable conduct , particularly when it is associated with fraud, accident, surprise or mistake.”

43 Lend Lease contends that the only power of this Tribunal is to grant relief against forfeiture of a Lease during its term for breach of a term or non-payment of rent and that in the case of a month to month holding-over, any such relief can only be in respect of the period to the end of the one month period of notice which has now expired.

44 The lawyer for Lend Lease argued that there is no "open slather" equitable jurisdiction for this Tribunal to relieve against injustice and of course that is the case; the earlier observations as to the jurisdiction of this Tribunal at large to remedy unconscionability at this time apply equally to that proposition. He further contended that this is not a case within the accepted categories in which the equitable principles of unconscientiousness or unconscionability apply; he referred to the standard equity text of Meagher, Gummow and Lehane, Equity;Doctrines and Remedies 3rd Ed. 1992, paras [1208-1210], [1602], [1804] - [1805] and their reference to the need to find “an established head of the jurisdiction”.

45 This is neither the time nor the place to review in detail the extent to which the general equitable principles can be applied in commercial contests because I am satisfied that this case is within an established head of the jurisdiction. In my view this case is clearly within the categories where such principles have always been applied. Here there is a lease relationship between parties, a dispute which brings the matter within the jurisdiction of this Tribunal and orders are sought which the Tribunal is empowered to make to bring an end to that relationship. In circumstances where there is ample evidence of unconscientiousness or perhaps preferably put, manifest commercial injustice in the particular circumstances of the case, I have no doubt that this Tribunal has power to apply such equitable principles.

46 In the case of relief against forfeiture of a lease under the express provisions of 129 of the Conveyancing Act 1919 (NSW), this Tribunal has the same power as the Supreme Court “to both grant or refuse relief, as it thinks fit" and a similar power would arise under the general law in the case of an application for forfeiture of a lease in the case of non-payment of rent.

47 In my view an application for an order for a tenant to deliver up possession of trading premises consequent upon a notice to terminate a monthly tenancy, being a holding-over tenancy under a long-term retail shop lease, is in the same category as those other proceedings for forfeiture and relief can be granted applying principles of unconscientousness. Accordingly this Tribunal, in applications within its jurisdiction, also has jurisdiction to apply those principles.

48 I am satisfied that the claim for an order of possession is a "retail tenancy claim" within s.70 of the Act. First, it is a "claim in connection with a liability or obligation with which a retail tenancy dispute is concerned" because in terms of the definition of "retail tenancy dispute" in s.63 there is a dispute concerning the liabilities … of a party … to a retail shop lease, etc.". It is a claim for surrender of possession and a claim for a declaration of the rights, obligations and liabilities of the parties under the Lease. Pursuant to s.72, the Tribunal has powers to make orders that it considers appropriate; 72(c)(iv), an order to do or perform or refrain from doing or performing any specified act matter or thing or 72(f)(iii), an order declaring the rights and liabilities of the parties under law.

49 Within the powers of this Tribunal so defined, if in the particular circumstances of this case the evidence establishes that the giving effect to the Notice to quit according to its terms would result in a manifest commercial injustice as between these parties to the retail lease, I am satisfied that I have jurisdiction and power to make orders to ameliorate that injustice, but of course only to an extent truly necessary to ameliorate the manifest injustice.

50 In that regard I do accept the submission by the lawyer for Lend Lease that the application of these principles does not permit this Tribunal simply to do what it considers commercially "fair" between the parties. The scope of the available orders is limited to removing the injustice to the extent that it is manifest and unconscientious.

51 In my opinion considering all the evidence, New York had a well-established commercial relationship with the Lend Lease Group, a major retail property landlord and manager, for many years for a number of shops and was known to have been a tenant in the subject premises for at least six years (including for a period prior to the acquisition of them by the Lend Lease Group). The evidence established that New York was a good tenant of Lend Lease and that save for the dispute that blew up over the airconditioning in November 2000, it had not defaulted or been in significant breach of any of its leases.

52 New York was known to Lend Lease to be a reputable retailer with a significant business although a relatively small business with a turnover in each of its shops at or below the $1 million p.a. mark. The evidence established that Lend Lease generally and its manager Mr. Lucchinelli in particular, would have understood in general terms the ordering pattern of such a business such that loss of any premises prior to an opportunity to plan disposal of the stock acquired for such premises, would cause a real commercial problem. To the knowledge of Lend Lease, New York had continued on a monthly tenancy for over 18 months prior to the issue of the Notice to quit. Extensive negotiations for a new 5 year term had continued during that time, intensively so between June and September. No communication in any form was given after about 9 November to New York warning that failure to complete the documentation would result in its losing its premises. While this may well be explicable in terms of the serious dispute that had arisen concerning the airconditioning, the circumstances of that particular dispute were such that Lend Lease acknowledged that it had an obligation to fix the airconditioning and that the correspondence chasing up the failure of New York to pay its rent did not in its terms warn of the likelihood of termination of the Lease.

53 The final conversation between the Lend Lease Manager, Mr. Ettore, and New York three days before the issue of the Notice to Quit planned a meeting to resolve the airconditioning issue at a date well after the issue of the Notice to quit and gave no inkling to New York that such a notice was about to issue.

54 Mr. Lucchinelli himself admitted that the issue of such a notice in those circumstances without prior warning to a tenant was not his normal practice although it must be noted that he regarded that as a matter of courtesy not obligation. Lend Lease contended that it would have been commercially dangerous for it to have given any warning or notice longer than one month because the lessee could have instantly responded by terminating on one month’s notice. This, they say, would have exposed Lend Lease to a risk of empty premises because it takes three months to relet a shop. However given the nature of this particular lessee and its own stock and relocation time constraints on such a response, I reject that as having been a likely problem here.

55 Perhaps had Mr. Levin not departed from his role as General Manager of Lend Lease Retail, the commercial relationship would have cured this problem but that was not to be and the question for me to determine is whether, in the complete context of this commercial relationship, the conduct of Lend Lease was so unexpected and severe with regard to an otherwise valuable tenant that it resulted in a manifest commercial injustice between the parties.

56 I have formed a clear conclusion that this was the result. I have no doubt that the issue of a one month notice to quit in circumstances of this lease and this commercial relationship with no prior warning and in the context referred to above, can be described as giving rise to a manifest commercial injustice within my understanding of the principles of unconscientiousness set out in the authorities.

57 However the consequences that flow from this are limited to remedying the exceptional nature of that injustice and, as observed, are not simply to do fairness between the parties. The powers of the Tribunal flowing from this conduct in the conext of relief against eviction do not include power to order the parties to complete the long-term lease as to which commercial but not legal agreement had been reached. The powers are limited to making an order having regard to the real commercial impact of the conduct in giving effect to the legal right to terminate a monthly holding over under a lease.

58 Lend Lease has argued that it would be exposed to liability to its proposed new tenant for the Shop, Joi Pty Ltd if it cannot deliver the premises by the end of March. In my view that is not a factor to prevent an order for the benefit of New York in the circumstances found by me. However I should observe that, for similar reasons to my rejection of there being a binding lease agreement between the parties to these proceedings, and having regard to the aspects of the documentation with the new tenant referred to earlier, it does not seem to me to be likely that there was as yet a binding agreement between Lend Lease and the proposed new tenant.

59 Mr. Ferny for New York expressly conceded that the closure of these premises would not cause goodwill loss. He agreed that in a modern shopping centre leases, the availability of premises is such that no significant goodwill attaches to any particular location. I infer from this that he would agree with the proposition that an established retail operator, or even a small chain like New York, could readily transfer its goodwill to other premises. Therefore there is no need to take account of goodwill loss in framing any orders.

60 The key issue to my mind is the stock exposure and time of re-location. The evidence generally established that three months was the usual re-location period for finding new premises. As to the moving of any stock, New York asserts that its stock is in the order of $200,000 and that it will not necessarily be possible for it to re-distribute that stock to its other shops at no commercial cost. Certainly it asserts that any distress sale of the stock could have negative consequences on the business at its other shops.

61 Having regard to those matters I consider that the appropriate order is to restrain the giving effect by Lend Lease to its Notice to quit for such period of time after 31 January 2001 as removes the manifest injustice from the exposure of the tenant. New York has already had a two months selling period to move the stock. It does have other stores to which the stock can be re-distributed although this may have some negative commercial consequences. New York has known since January that there is a real risk of its needing to relocate. It argues that a fair time to achieve this would be about six months notice.

62 In my view the orders necessary in those circumstances should reflect a judgment as to the period of notice that ought to have been given by Lend Lease as at 31 January 2001 in the first place to prevent a manifest commercial injustice. In my view that would have been a three month period and not a one month period. Accordingly I propose to make an order that Lend Lease be entitled to possession of the Shop but not before 1 May 2001 subject to New York continuing to pay the rent and otherwise perform the covenants of the Lease.

63 Therefore I am satisfied that the proper outcome of these proceedings, while it will be satisfactory to neither party nor considered fair by New York, is to make orders that:-

1) GPT and GSO be granted possession of Shop ML35 in Bankstown Square no later than 1 May 2001.

2) New York to vacate the Shop and otherwise comply with its obligations on termination of the Lease in respect of vacating the premises on before 1 May 2001.

3) New York continue to pay rent and the parties otherwise to observe the covenants of the Lease until 1 May 2001.

64 New York did not pursue its damages claim in relation to the airconditioning dispute included in its original application. Accordingly no order is made as to that claim.

65 I do not think there are special circumstances within s.88 of the Administrative Decisions Tribunal Act 1997 entitling either party to an award of costs.