Nullagine Investments Pty Ltd v The Western Australian Club Incorporated

[1992] HCATrans 150

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P7 of 1992

B e t w e e n -

NULLAGINE INVESTMENTS PTY LTD

Applicant

and

THE WESTERN AUSTRALIAN CLUB

INCORPORATED

Respondent

Application for special leave

to appeal

DEANE J
DAWSON J

GAUDRON J

Nullagine 1 8/5/92

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY. 8 MAY 1992. AT 10.34 AM

Copyright in the High Court of Australia

MR C.J.L. PULLIN, QC:  May it please Your Honours, I appear

with MR D.A. DAWES for the applicant. (instructed

by Rikhraj)

MR E.M. HEENAN, OC: If it please the Court, I appear with

MR C.W. SANDERSON for the respondent. (instructed

by T.B. Bannerman)

DEANE J: Yes, Mr Pullin?

MR PULLIN:  Your Honours, could I start with a proposition

that has been agreed to by both courts below and by

both of the parties. That is that since the middle

of the 16th century, co-owner of land has been

entitled to an order or decree of partition as a

matter of right. Sir Adrian Knox, speaking in Bray v Bray in 1926, with the concurrence of the rest of

the members of the court, described it as an

absolute right, and such that Justice Kearney in

Hayward v Skinner therefore properly referred to

the right of partition as being a right inherent in

co-ownership and as an incident of the property of

a co-owner. As I say, this was accepted by both

levels of the court below.

Since the last century, by statutory

engraftment a co-owner has at his option been

entitled to obtain an order for sale in lieu of

partition, but when he obtains an order of sale in

lieu of partition, it is in a partition action.	So
that when I talk of partition, I also refer to a
sale in lieu of partition, which was being sought
in this case.

Your Honours, the question which would be

ventilated if special leave were granted today is

whether a co-owner of real estate can enter into a

contract which permanently restricts his or her

right to seek an order or decree of partition.	The
case is therefore concerned with rights of

co-ownership of land throughout Australia. The

case therefore raises a question of law of public

importance and of general application so that

special leave should be granted.

DEANE J:  Mr Pullin, can we identify the extent of what

would be involved in an appeal?

MR PULLIN: Yes, Your Honour.

DEANE J:  I was looking at page 117, where there are a

number of grounds spelt out, whether they are all

separate grounds, I am not too sure.

MR PULLIN:  Your Honour, they are really all the same point,

the point that I have just indicated.

Nullagine 2 8/5/92

DEANE J: Well, except 2.2 is a construction point.

MR PULLIN: Well, by the time I have finished my

submissions, I think it is clear that it is not,

Your Honour.

DEANE J:	I see.
GAUDRON J:	Does that mean that you accept the construction put on clause 4(b) below?

MR PULLIN: Yes, Your Honour.

GAUDRON J:  Even though the clause in terms only deals with

the individual interests of the co-owners?

MR PULLIN: Well, Your Honour, the position is that this of

course is a point that is raised in my learned

friend's submissions and there are two preliminary

points which I would like to dispose of, this being

one of them. The respondent says that this is a

case concerning the construction of, what they

describe as a singular agreement; in other words,
something that concerns only the parties. While we

might disagree with the construction of the

documents put on the documents by the Full Court,

we realize we will not get special leave to argue a

construction point, so we therefore accept the
construction purposes of the appeal so that we can

raise the point which then follows, and that means

that the first 37 pages of the Chief Justice's

reasons for decision are no longer of concern and

can be ignored; so that we then come to the
essential question as to whether or not, given the

construction that has been found, whether or not

parties can enter into a contract to permanently

restrict the right to partition, which has been

said to be a right of ownership, an incident of

ownership.

DEANE J: There are two aspects of that: one, which is

raised by the respondent, is that it is suggested

the point was not squarely taken at first instance

and was only taken, as it were, by a side wind on

appeal. Involved in that is a second question and
that is: to what extent was the significance of

the proviso in clause 4(b) relied on in the Full

Court, because it does not seem to be referred to

in the judgments except for a mention that it is

there?

MR PULLIN:  I would like to deal with what Your Honour has

raised in two parts, the first part now and the

other part during the course of my submissions, if

I may. The first point, which is that it was not

raised in the courts below is, in our submission, incorrect. The submissions which were put before

Nullagine 8/5/92

the trial judge - that is my learned friend's

submissions before the trial judge - contained this

statement, "There is no restraint upon

alienation" and Hall v Busst was cited.

We have sent across by fax, which would be

available to members of the Court - I am not asking

you to look unless it becomes a matter of

contention - but the submissions in the lower court

are available at that end. So that it can be seen

that the Hall v Busst point was raised.

It was not mentioned by the trial judge because the trial judge, in his construction of the

document, concluded that the agreement came to an

end after 10 years, therefore there was no need to

see whether or not it then imposed, at the time of
the trial, a restraint on alienation because his

construction was that the agreement had come to an

end.

DEANE J:  I appreciate that the respondent said that the

clause was not an invalid restraint on alienation,

but did the applicant say that it was?

MR PULLIN: Well, Your Honour, I did not appear originally,

but the position is that certainly at the
appearance before the Full Court the Hall v Busst

point was covered by both parties in their

submissions, so it was not a matter of it coming up

by surprise during the course of the appeal, and

once again I have sent across the respondent's
outline of submissions and Hall v Busst was No 1 on

my client's list of authorities before the Full

Court. The matter was argued and the Full Court

then dealt with the matter in detail between

pages 67 and 69.

DEANE J: Well, if we reach that stage, Mr Pullin, we will

hear what Mr Heenan has to say in relation to the

point generally, but I would be interested to hear

what you have to say in due course about reliance

on the proviso.

MR PULLIN: Yes, thank you, Your Honour. That deals with

what I might call the two preliminary points on

which the respondent tries to say that special

leave should not be granted. So on the

construction point, we accept the construction, and

on the second point we say that it was argued and

if there was to be any penalty we should not have

been granted leave before the Full Court. Clearly,

the argument proceeded, was anticipated, and fully

dealt with. So it is not a point that should stand

in the way of leave being granted if we otherwise

succeed on the merits.

Nullagine 8/5/92

Your Honours, if I could return to the merits of the application, the clause under consideration

is at appeal book page 31 and, of course, you would

have read that, and you will see that there are two

parts to it. It goes on for two-thirds of the
page. Relevantly it is the first ten lines on

page 31 and the last eight lines on that page and

the first three lines over the page on page 32.

The first part imposes a contractual restraint on selling until an offer has been made to the other

owner, a right of pre-emption, on the basis that

the parties agree the price or, alternatively, if
they cannot reach agreement, then 50 per cent of

the value of the land at that date, the value to be

determined by arbitration. Then there is the

proviso which seeks to bind the land forever more

and for all owners in perpetuity:

no party shall sell transfer assign or

otherwise dispose of its interest in the Land unless its proposed successor in title enters

into a deed of covenant with the other party

for the time being to be bound by and comply
with the terms and conditions herein
contained ..... subject thereto such a successor

shall be entitled to all the benefits but subject to all the duties and obligations

created and imposed by this deed in

substitution for his or its predecessor.

Now, Your Honours, if one goes back into the legal history books, one finds owners of land

trying to achieve this control of land after their

death, of course, many centuries ago, and there has

been a constant fight between a public policy and

individual land owners, where the public policy is

that land should be freely alienable.

Justice McPherson, in Permanent Trustee

Nominees case - this was at first instance - made a

point which would not be disputed, I am sure, by

anybody, that the exercise of a property right has

nothing to do with fairness; there is no concept of

fairness involved so that, for example, a person

wishing to lease his land does not have to

demonstrate that it is fair that he does so. And

so, we would say, if the right of partition is a

property right, there is no need to demonstrate any

fairness involved in the matter. That is inherent

in Bray v Bray.

If you go to the conclusion reached by the

Chief Justice in this case, at page 75, line 38, at

the bottom of the page:

The effect of the right of pre-emption is that

the granter of the right contracts not to sell

Nullagine 8/5/92

without first making an offer to the gran~or. In my view the making of an order for sale in lieu of partition would have the effect of

enabling the granter to avoid his contract.

In such a case partition and sale would be

inconsistent with the contract.

Now, that can only mean that it is unfair to allow somebody to breach his contract, says His Honour.

We would disagree that there is any breach of

contract, by the way, because it was an agreement

if one wished to sell a half interest that that
half interest would first be offered to the other

side, whereas this is the exercise of the right of

a co-owner to seek partition or sale.

DAWSON J: At least it is inconsistent with the contract, is

it not? If it is not a breach it is inconsistent

with the contract?

MR PULLIN:  Yes, and that, inherent in what His Honour is

saying is that there is an unfairness in that and

it should not happen until you first go through the

procedures laid down in the contract. Now, two

things can happen if you make an offer if the

co-owner under this arrangement makes an offer; the

first is that the other party can accept the offer

which is made, which means you have effectively

been precluded from exercising a right of
partitition - a decree or order of partition.

Furthermore, the valuation is a valuation of the

whole of the land, but you must value the land

including the fact that there is a continuing

obligation of future owners to comply with this

arrangement. Now, I ask rhetorically: who would

buy land knowing that you have this restraint, and

if the answer is, "Well, I would, on the basis of a
reduction in the price, because some of my rights
of property are reduced", then it will reduce the

value of the land - - -

DEANE J: Except you are really mixing up two points, are

you not? There is the general point, which I

understand, that a right of pre-emption between the
tenants in common does not preclude an application

for partition or sale, either as a matter of

jurisdiction or assuming jurisdiction as a matter

of the actual exercise of discretion. Now, as I

say, I understand that point, but you are trying to

make good that point by bringing in the proviso

which creates a quite different situation from the

ordinary situation. It seems to me that we should

deal with them separately because, as I said to

you, I would be interested to hear why it is that

no real mention is made of the proviso in reasoning

in the Full Court.

Nullagine	6	8/5/92
MR PULLIN:	Yes.	Your Honour, I would respectfully disagree

that the proviso is not relevant at this stage

because when one comes to value, assuming the

parties cannot reach agreement, then one has to

look at the existence of the proviso because in

valuing the land you know that this land carries

with it the fact that the next person and the next

person after that -

DEANE J:  I follow that, but do you or do you not submit

that without the proviso you would be entitled to

succeed?

MR PULLIN: Yes, we do, Your Honour.

DEANE J: Then that is a different point to bringing in the

proviso.

MR PULLIN:  Yes. The proviso really comes in in the

alternative situation.

DEANE J:  I mean, without the proviso you are in the area of

Justice Needham's decision and so on. It is the

proviso that raises a different point to those that

have been considered in the other cases.

MR PULLIN: Yes. It comes up in this way, Your Honour:

assume, because we must assume, what might happen

because it has not happened at this stage, but

assume that the co-owner refuses to accept the

offer, one would then return to the court and say,

"We now seek partition because we have gone through

the procedure which has been laid down in the

contract, and we now seek partition.", but on the

basis of the Chief Justice's reasoning we could not

obtain partition then, because then it would be

said, "You are trying to escape the provisions of

the contract by seeking partition when, in fact,

you should be selling subject to this condition

which will run forever with the land". That is the

problem, Your Honour, and the reasoning that the

Chief Justice laid down applies with equal force to

that.

Now, of course, neither situation has been

dealt with because neither situation has arisen.

We are saying that we are entitled to partition,

and that none of what we see in this document

should preclude the order or decree being made.

DEANE J:  Mr Pullin, could I just make it clear, the point I

am trying to make is, I can see the force of your

argument in the context of the proviso. It does

not seem to me to have quite the same force without

the proviso. Now, that being so it seems to me you

just have to face up to the fact that the judgments

indicate that the Full Court did not attach

Nullagine 7 8/5/92

significance to the proviso, and we really need to

know why, which turns on the way the case was

argued in the Full Court I imagine.

MR PULLIN:  The way it was argued, Your Honour, was that it

was approached by the applicant on the basis the

law had been laid down in 1926 in Bray v Bray and

was beyond question, and then there was found a

sentence in the first edition of Halsbury that said

that parties could enter into a contract to

preclude them from exercising their rights of
partition, to go to court and obtain an order or

decree of partition. There were four cases

referred to in the footnote on that page in

Halsbury, but all of those cases are partnership cases, despite what the Chief Justice said about

the first one of them, Peck's case. He said it was

not a partnership case, but in fact laced through

the judgment are statements to the contrary effect,

that it was in fact a partnership case.

Of course, very special rules have developed

in relation to partnership, such that the

Partnership Act contains a provision that upon

dissolution of a partnership, the land or property

of the partnership must be sold for the purpose of

discharging debts and the like. So there is a

statutory provision which covers partnerships and

takes them quite outside the normal situation. It

therefore overrides the effect of the Partition Act

because there is a piece of legislation to that

effect, and the common law had long isolated

partnerships ..... established a separate set of

rules, witness the conversion doctrine in relation

to real estate in partnership.

So we say that all of those cases are quite

irrelevant. We also say that the only two other

cases referred to - and I have mentioned these in

paragraph 9 of our outline of submissions - that is

Permanent Trustee Nominees (Canberra) and Ngatoa v
Ford, that they were not cases which established

any authority for the proposition which has been

laid down in this case. The Permanent Trustee case

was decided on the basis that the legislation in
Queensland gave a discretion to the court as to whether it should order sale in a partition action,
which does not arise here because it is quite clear

there is no discretion. The Ngatoa case did not

involve a restraint which was imposed on the

co-owners' successes in title. So there was an

initial restraint only, and that is, I think, the

case that Your Honour Justice Deane was referring

to.

So, neither of the cases dealt with the

situation we have here and, in my submission, it is

Nullagine 8/5/92

not possible to avoid the proviso, because one must

look, as the parties are here, about what might

happen at the time the parties go off to bring this

machinery into play and the result can be that it
will tie up the land for ever more, in our

submission.

DEANE J:  But that still does not answer my question. Can I

take you to page 66 of the book, in the paragraph

commencing at the bottom of that page the Chief

Justice says:

This is a typical form of right of pre-

emption as described in Halsbury's Laws of

England -

Well now, that is true, unless one takes account of the proviso. If the proviso is treated as of relevance and importance, that statement simply is not accurate. It indicates to me that His Honour

thought that no reliance was placed on the proviso

as taking the case out of the ordinary run of

rights of pre-emption and their effect of statutory

provisions such as this.

MR PULLIN:  Your Honour, with respect it was; it is really

the point that comes up in Hall v Busst in Justice

Fullagar's judgment, when you may recall that he

concluded that there was a restraint on alienation

because the contract provided for a fixed re-

purchase price.

DEANE J:  I can see the force of that, Mr Pullin. All I am

on the existence of the proviso?

really asking you is: was it squarely put to the extent

MR PULLIN: Well, Your Honour, I understood from the

judgment of Justice Rowland that he commented on

the effect of the reduction in value which would

come about because of the fact that this provision

was there but, of course, it did not have to be

explored in detail in his judgment because he said,

"Well, the construction of this agreement is that

it runs for 10 years and therefore terminates in

1986 and so therefore there is no longer any

restraint at all, because it only operated for 10

years." But of course, the construction we are now
forced to accept is that it runs for ever, and is

not limited to 10 years.

So in that sense, Your Honour, it has been an

issue in the case, and one of the complaints - of

course, the reason why the applicant is so unhappy

with its situation is that it knows what is going

to happen if it now goes away and makes an offer,

the offer is not accepted; there is then a

Nullagine 9 8/5/92

valuation and the valuation, of course, will

reflect the existence of the proviso, which will

mean that the value of the property will be marked

down accordingly, will then be expressly covered by

Justice Fullagar's judgment, which was agreed to by
Justice Menzies. Hall v Busst has some

difficulties in following exactly where the

majority decision can be found; the statement of

principle is well understood from it.

But Justice Fullagar said in the case of

Saliba v Saliba, which I have mentioned in my list

of authorities, the fact that you try and affect

the price for future reference, so that a person

cannot sell freely at market value, will be treated

as a restraint which is unacceptable and against

public policy, because it is an attempt to control

the price of land and the destiny of the land

furthermore.	So for that reason, Your Honour,
we - - -

DEANE J:  What about in the Full Court, though? Was

reliance placed on the proviso as taking the case

within a different category from those involving a

simple right of preemption?

MR PULLIN:  Your Honour, I must confess I have not looked at

the transcript of the argument at all, but all I

can say is that Hall v Busst was No 1 on the list

of authorities. The matter was therefore

identified. But I cannot say exactly how the

argument ran and had not anticipated that I would

have to deal with other than the fact that the Hall

v Busst point was said not to have been raised, and

we say it was raised at both stages of the

proceedings below.

DEANE J:  I can see that. As I think I have made painfully

clear, it is the proviso that is causing me

concern.

MR PULLIN: Yes, Your Honour. I can only finish by saying

that we say that His Honour the Chief Justice, in

his analysis, stopped after considering the first

stage because, in effect, he was saying that the

first stage had to be complied with first and

because we had not done that, I suppose he was

saying there was no point to go on and look at the

matter any further. And so the fact that

His Honour chose not to proceed with the analysis

of the rest of the clause should not count against

us, in our submission, Your Honour.	They are my
submissions, may it please the Court.

DEANE J: Thank you, Mr Pullin. Yes, Mr Heenan.

Nullagine	10	8/5/92
MR HEENAN:	May it please Your Honours.	I apprehend fro~

the course of argument that the Court has our

written outline of submissions and is familiar with

it. May I submit that issues of the trial before

His Honour Mr Justice Rowland did not include any

special attention to the proviso which has recently

been the subject of discussion. The issues before

His Honour on which he resolved the case were,

first, was the operation of clause 4(b) in the
occupation deed limited to the term " ..... a lease
of 10 years" or did it also apply after the term of
the lease had expired. His Honour held that it was
so limited, but was reversed on that point by the

Full Court.

The second issue was, did the occupation deed

confer rights on the parties as licensees, as

Justice Rowland held, or as lessors, as the Full

Court held; a question which, despite the emphasis

given to the point by the Full Court, is

essentially peripheral, in our submission.

Thirdly, could the right to petition be limited

contractually, and both Justice Rowland and the

Full Court answered that last issue affirmatively.

That is proposition 5 of the propositions which

were formulated by His Honour Justice Rowland and

accepted by the Full Court in the judgment of the

Chief Justice.

Now, it is interesting to note that that

proposition 5 was never, in express terms, in so

far as I can see from the reasoning, challenged by

the respondent in the Full Court, except to the
extent that the argument was raised without a
notice of contention and is dealt with by the Chief

Justice in the pages referred to in our written outline, being pages 65 to 69 of the appeal book.

If that proposition is unchallenged - - -

DEANE J:  Mr Heenan, Justice Gaudron has pointed out to me

that in the plaintiff's supplementary outline of

submissions No 4 there is considerable reliance on

the proviso but not in the context of taking it

into a different category of case but it goes a

long way towards pointing to the relevance of the

proviso.

MR HEENAN:  Your Honour, as I understand the way the case

was conducted at first instance and in the Full

Court, emphasis was placed on the proviso to assert that if it bound the parties the applicant would

receive a discounted or depressed price selling

pursuant to the deed, rather than on the

open ..... But that was a prejudice which

the ..... doctrine of partition ought not

accommodate. As I understand the matter, that is

the only form in which it was put, but it was not,

Nullagine 11 8/5/92

in our respectful submission, ever put, certaialy
at first instance or in the Full Court ..... that

this proviso converted ..... otherwise be an

unexceptionable right of pre-emption into an
unreasonable restraint upon alienation.

And if that issue had ever been put it would have to have been adjudicated upon with regard to

the background circumstances, and the possible

impact which such a limitation might have on a

purchase price, namely, giving rise to a necessity

for evidence on the point analogous to
considerations which are ..... examining an assertion

that a restraint of trade, perhaps an employment contract ..... unenforceable ..... restraint against

competition having regard to some kind of area or

franchise.

Now, none of those matters were ever

addressed. So if this case were to be the subject

of a grant of special leave ..... address that

particular point two consequences, in our

submission, would result: one, the matter would

have to be adjudicated in a climate where there was

no evidence on the point as to the supposed impact

of the restraint, and in a case where this

applicant has not, in fact, sent a price to

arbitration under clause 4(b) ..... sale on the

general market. The supposed depression or

discount of the purchase price worked by the

proviso remains nothing more than a speculation.

The second point would be that the

significance of this case would not be a matter of
general application. It would depend upon the
evaluation ..... impact of this precise
proviso ..... is without question particular to the

case. That would deprive the ..... decision of any

broad or general application.

DEANE J: Well, that is not really so in that one would only

come to the effect of the proviso if one were

against the applicant on the effect of an ordinary

right of pre-emption. Well now, I know what you

say about that, but I notice that Justice Needham
who, of course, is an expert in this area,

expressed regret in his judgment that there was not

a decision of this Court in relation to that

general point, though as I say, I can appreciate

the force of your argument that you would

ultimately succeed on it.

MR HEENAN:	Your Honour has obviously anticipated the answer which we would give to that point, but can I make
two further propositions. Although this point is undoubtedly of some interest, we say that it is of infrequent occurrence and, in fact, there only

Nullagine 12 8/5/92

several decisions in the Commonwealth to bear on

the matter even peripherally ..... feel that it

seldom arises in general practice, so it is not an

issue of controversy which calls

out ..... resolution.

The second point that we make is that this

clause does not effect any restraint on alienation.

Our learned friend has been careful in his

submissions to avoid a contention that it is a

restraint on alienation, because quite obviously it

is not ...... mechanism allowed by the clause

compels an offer at a fixed price by one co-owner

to the other. That is not accepted; it is a power

to refer to arbitration to determine a price by

reference to market value at which the other

co-owner may then buy. If the co-owner does not

buy ..... terms there is an unrestrained right to

sell on the general market at any price within the

12 months. So it cannot be suggested, in our

respectful submission, that there is any restraint

alienation. The complaint is - - -

GAUDRON J: But, Mr Heenan, is it not a restraint on the

sale of the entirety of the interests other than by

agreement to waive the terms of the clause?

MR HEENAN:	Your Honour, quite obviously all that a co-owner has to sell is his interests in common and that is
all that he could ever sell separately without
coming to the court ...... sale in..... The
complaint made by the applicant is that he has to
sell his co-interest, subject to the obligation for the purchaser to enter into a deed of covenant.
That obligation might depress the price that he could otherwise achieve.

That is a contractual restraint, coloured .....

measure of the rights which the party took when he

first entered into the contract, or in this case of

..... current shareholders in Nullagine

acquired ..... capital in the company ..... during the

tenure of the operation of the ..... So if the

interest is purchased or acquired subject to this

fetter ..... entertain a complaint from one of co-

owners that the effect of the fetter was to depress

the price that could be realized, because, quite

obviously, such a discount is recognised when he

first bought into the prospect ..... otherwise there

would be a windfall profit. Those are our

submissions, Your Honours.

DEANE J: Thank you, Mr Heenan. Mr Pullin.

MR PULLIN:	I thank Justice Gaudron for pointing out the reference in the supplementary submissions which we
had sent across.  The point that is made there on

Nullagine 13 8/5/92

page 2 of the supplementary submissions which ware

made at the trial is, of course, the point that was

made by Justice Fullagar in Hall v Busst. My

learned friend mentioned that the case would have

to be argued in a climate where there was no

evidence about the impact of the proviso.

Can I take the Court to two passages in two of

the cases.	One is Hall v Busst, (1960)
104 CLR 225.	You will remember the agreement in

that case was to sell at a fixed price plus and

minus some items mentioned in one of the

provisions. It was said there in the last sentence

at the end of the first paragraph:

And, when she does wish to alienate, the

property may be worth a great deal more than

3157 pounds plus and minus the items mentioned

in cl 5: it was apparently in fact worth

nearly three times that sum at the end of

1957.       I feel no doubt that the restraint is

repugnant and void.

So that is the restraint on alienation point. If

one then goes to Saliba v Saliba, (1976) Qd R 207,

the second paragraph, His Honour said in that case:

In the present case there is not any

evidence that the price fixed for a half share

in this land was not an adequate price at the

time of the making of this agreement, but it

seems to me that it was plainly foreseeable

that the market value of this land might rise
in the future, not only by reason of
inflation, but for other reasons, such as the

establishment of businesses, or industrial

development, in the area, or the rezoning of

the land under town planning legislation.

In our submission, it is quite evident that if you

sell land, when you are selling it you say, "This

land has attached to it a condition which will

always run with it, that that will affect the value

of the land." One does not need any evidenc.e on

that. In our submission, it is a matter of common

sense.

Finally, Your Honours, my learned friend said

that this is the type of dispute which is likely to

arise infrequently. We would say on the contrary,

there has been a deal of litigation, as one can

see, already in recent times, and any conveyancer
worth his salt in future, acting for a dynastic

landowner, co-owner of land, will go to the case of

Nullagine and copy out the clause which we see in

this case, and so henceforth one can expect to see this clause being used with greater frequency. So

Nullagine 14 8/5/92

in our submission, special leave should be gra~ted

to the matter can be tidied up at this early stage

so the conveyancers do not have their way.

DEANE J:  Mr Pullin, the Court proposes to take a half hour

adjournment for lunch at 12 noon Perth time, which

means we will be resuming at 12.30. We will give

our decision on this application then. Neither you

nor Mr Heenan need be present.

But there is one matter that I should raise

with you, and that is: if you were to get a grant

of special leave, it would, of course, be

restricted to the four points raised on pages 117
to 118. But what would you say to the proposition

that if you were to obtain a grant of special

leave, it should also be restricted in the sense

that you should not be allowed to rely on the

proviso for an argument which would necessitate the

matter being sent back for further evidence?

MR PULLIN:  We would not like it, Your Honour, but we would

take whatever we were offered.

DEANE J: In that case, if there is a grant of special

leave, and it is said to be subject to the

condition discussed with counsel, that will be the

condition, that is that any reliance on the proviso

will be restricted to an argument which, if

successful, would not involve the matter being sent

back for further evidence.

MR PULLIN:  I must say that I am not entirely clear on that,

Your Honour. Do I take it that the point that I

have made, that is that it is a matter of, we would

say, common sense that the proviso would affect the

value and, therefore, be relevant to the first part

of the clause, could be argued?

DEANE J: Yes, except on the basis of the condition I am

suggesting to you, in a context where, if on the

argument and the full argument it appeared that

because of the manner in which the case had been

conducted on behalf of the applicant at first

instance and in the Full Court, the only fair
course would be to send it back for further

evidence, the argument would not be upheld.

MR PULLIN: Yes, I understand that, Your Honour, and we will

accept that. Thank you, Your Honour.

AT 11.20 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

Nullagine	15	8/5/92
UPON RESUMING AT 2.29 PM:

DEANE J: In this case there will be a grant of special

leave restricted to grounds 2.1, 2.2, 2.3 and 2.4

of the draft notice of appeal, and subject to the

condition discussed with counsel.

AT 2.31 PM THE MATTER WAS ADJOURNED SINE DIE

Nullagine 16 8/5/92