Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd - [2014] WASCA 28

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PRIMEWEST (MANDURAH) PTY LTD -v- RYOM PTY LTD [2014] WASCA 28

CORAM: MARTIN CJ
PULLIN JA
MURPHY JA

HEARD: 13 AUGUST 2013

DELIVERED : 5 FEBRUARY 2014

FILE NO/S: CACV 153 of 2012

BETWEEN: PRIMEWEST (MANDURAH) PTY LTD
Appellant
AND
RYOM PTY LTD
KEDO (AUST) PTY LTD
Respondents

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :EDELMAN J
Citation  :PRIMEWEST (MANDURAH) PTY LTD -v- RYOM PTY LTD as Trustee for GOLDEN ASSET PTY LTD [2012] WASC 443
File No  :CIV 3126 of 2011

Catchwords:

Contract law - Property sale agreement - Proper construction - Construction in accordance with commercial context

Property law - Leases - Unregistered lease exceeding five years - Effect of transfer of land - Application of s 68 of the Transfer of Land Act 1893 (WA)

Appeal - New argument on appeal - New argument cannot be raised when facts are not beyond dispute

Legislation:

Property Law Act 1969 (WA), s 77, s 78
Transfer of Land Act 1893 (WA), s 68, s 82

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr C L Zelestis QC & Mr G J Douglas
Respondents : Ms P E Cahill SC

Solicitors:

Appellant: Hotchkin Hanly
Respondents : Frichot & Frichot

Case(s) referred to in judgment(s):

Chirnside v The Registrar of Titles [1921] VLR 406
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407
Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2007] WASC 88
Lockrey v Historic Houses Trust of New South Wales [2012] NSWCA 249
Mammoth Investments Pty Ltd v GIO General Ltd [2007] WASCA 34
McLennan v McCallum [2010] WASCA 45
O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310
Opera House Investment Pty Ltd v Devon Buildings Pty Ltd [1936] HCA 14; (1936) 55 CLR 110
Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2012] WASC 443
Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323
University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
MARTIN CJ:
Summary

The appellant, Primewest (Mandurah) Pty Ltd (the Seller) entered into a contract (the Sale Contract) for the sale of a commercial retail property to the respondents, Ryom Pty Ltd and Kedo (Aust) Pty Ltd (the Purchasers). At the time of sale, separate portions of the premises constructed on the property had been leased to six tenants, all retailers. Two of the leases were for terms exceeding five years. One of those leases, conveniently described as 'the Rick Hart Lease' had been registered against the title to the land, but a transfer of the lease to an assignee of the tenant had not been registered. The other lease for a term exceeding five years, conveniently described as 'the Avanti Lease' had not been registered. The Purchasers were concerned that following the registration of the transfer of the land to them, s 68 of the Transfer of Land Act 1893 (WA) (the Act) would have the effect that the Rick Hart Lease would not be enforceable against the assignee, and the Avanti Lease would not be enforceable against the tenants. Clause 4.2(c) of the Sale Contract required the Seller to provide at settlement:
Any deed of affirmation or other documentation relating to the Leases and their continuation after Settlement as the Buyer may reasonably require.
Prior to settlement the Purchasers required the Seller to produce at settlement documents evidencing registration of the transfer of the Rick Hart Lease to the assignee of the tenant, and a deed of affirmation executed by the tenants of the Avanti Lease affirming the validity and enforceability of that lease by and for the benefit of the Purchasers against the tenants from settlement and thereafter.
Settlement was to take place on 14 October 2011. Through their representatives, the Seller denied that the Purchasers were entitled to the documents they had requested be provided at settlement. After the time for settlement had passed, each of the parties to the Sale Contract gave to the other a notice of default. The Purchasers claimed that the Seller was in default by failing to provide at settlement the documents which had been requested. The Seller claimed that the Purchasers were in default by failing to provide a stamped transfer prior to settlement. After the Seller failed to provide the documents which the Purchasers had required within the period specified in the Purchasers' notice of default, the Purchasers gave notice terminating the Sale Contract on 2 November 2011.
The Seller commenced proceedings for specific performance of the Sale Contract. The Purchasers counterclaimed for a declaration that the Sale Contract had been brought to an end by their notice of termination, following the Seller's default. The trial judge found that at the time settlement was due, the Purchasers were ready, willing and able to perform the Sale Contract, but the Seller was in breach of the contract by failing to provide the documents which the purchasers had requested, with the result that the contract was lawfully terminated by the Purchasers. Accordingly, the claim for specific performance was dismissed and a declaration issued to the effect that the Purchasers had validly terminated the Sale Contract.
The Seller appeals from that decision on three grounds, asserting:
(a)clause 4.2(c) of the Sale Contract, on its proper construction, did not oblige the Seller to achieve registration of the transfer of the Rick Hart Lease prior to settlement or to provide documents providing evidence of registration;
(b)the trial judge erred by failing to properly characterise the document which the Purchasers had requested in respect of the Avanti Lease;
(c)in the case of each of the Rick Hart Lease and the Avanti Lease, the Purchasers' request for the documents was not reasonable because their interests could have been adequately protected by the Purchasers taking a transfer subject to the unregistered transfer of the Rick Hart Lease, and the unregistered Avanti Lease.
For the reasons which follow, each of those assertions must be rejected and the appeal dismissed.

The facts

The facts relevant to the issues litigated at trial were not in substantial contention, and were largely established by a statement of agreed facts, the Sale Contract and the written communications which the parties exchanged through their legal representatives. Neither party challenges any finding of fact made by the trial judge, although the appellant asserts, in the second ground of appeal to which I have referred, that in the course of his reasoning the trial judge failed to properly characterise the document which the Purchasers had requested in respect of the Avanti Lease.
The facts relevant to what I have described as the first two issues on appeal follow. Because the third issue raised in the appeal was not ventilated at trial, no evidence was led in relation to that issue. For reasons I will develop, that lack of evidence is fatal to the appellant's attempt to raise the issue on appeal.
The Seller was, and remains, the owner of a commercial retail complex situated in Mandurah, in Western Australia. In May 2011, the Seller provided the Purchasers with an Information Memorandum relating to the sale of the property. In the memorandum the property was described as a 'modern retail bulky goods showroom complex situated in a prime lead corner location and boasting some of Australia's leading retailers'.
The Information Memorandum provided details of the six 'leading retailers' who had taken leases of different portions of the premises, and information with respect to those leases. In the memorandum, Rick Hart was described as one of the three anchor tenants, and its tenancy comprised 40% of the total floor space in the complex, and accounted for more than one‑third of the rental income derived from the property.

The Sale Contract

The parties entered into 'the Sale Contract' on 1 June 2011. By its terms, the Purchasers agreed to purchase the property for a sum of $12 million payable at settlement.
The Sale Contract utilised a standard form published by the Real Estate Institute of Western Australia (2009 revision) and incorporated the Joint Form of General Conditions for the Sale of Land published by the Law Society of Western Australia and the Real Estate Institute of Western Australia (2009 edition) (the General Conditions), so far as the General Conditions were not varied by, or inconsistent with, the conditions included in the standard form or the Special Conditions which were annexed to the contract.
Clause 2.1 of the General Conditions provides that the property is to be sold free of encumbrance except for a 'Specified Encumbrance'. Clause 1.3 of the Special Conditions provides that the Specified Encumbrances 'include' (subject to provisions of the contract relating to an easement which are not material) all encumbrances and interests notified upon the certificate of title for the property, and which was annexed to the contract, excluding any mortgage, together with:
Any registered lease or caveat which may subsequent to the Contract Date be lodged to protect the lease or other tenancy in the Property.
The certificate of title annexed to the contract showed three registered leases, including the Rick Hart Lease.
Clause 1.2 of the Special Conditions refers to the Purchasers' receipt of the Information Memorandum and to the six leases relating to the property. Annexure B to the Sale Contract contains details with respect to those leases.
The Rick Hart Lease is described as applying to an area of 2,347 sqm generating gross annual rental income of a little over $480,000. The contract describes the lease as being for a 10‑year term expiring on 21 December 2016, with two options to extend the term for five years. The lessee is said to be Lesandu CP Mandurah Pty Ltd (Lesandu).
The Avanti Lease is described as covering an area of 385 sqm, and producing gross annual rental of a little under $90,000. The term of the lease was seven years expiring on 27 November 2013 with an option to extend for a further term of five years. The lessees are L and J Boulton.
Clause 3 of the Special Conditions contains a number of general provisions relating to the leases. Those provisions include cl 3.1:
Transfer of Leases
(a)The Seller will to the extent possible at law transfer and assign and the Buyer will take the benefit of each Lease with effect as from the date that Settlement actually occurs.
(b)the Seller agrees at Settlement to provide such Notices of Attornment or other advice to tenants as may reasonably be required by the Buyer to note the change of ownership in the Property and the assumption of the position of landlord under the various Leases by the Buyer.
Other provisions within cl 3, which are unnecessary to detail, reinforce the implication arising from the terms of the Sale Contract as a whole to the effect that the transfer of the benefit and the burden of the six leases relating to the property was a vital component of the transaction. Those provisions include warranties that the Seller and the Purchasers will each perform the obligations of the landlords under the leases before and after settlement respectively, indemnities in respect of any claim arising from breach of those obligations, and assignment of any guarantees relating to the tenants' performance of the leases from the Seller to the Purchasers. For reasons given below, this implication as to the commercial objective of the parties is significant to the resolution of the issues raised by the appeal.
Clause 4 of the Special Conditions contains provisions relating to settlement. Clause 4.1 provides that settlement was to take place on the later of 25 July 2011, or 28 days after the Purchasers received a notice issued by the Seller pursuant to Special Condition cl 1.4(f), which notice was to be issued once certain conditions had been satisfied. Such a notice was provided to the Purchasers on 16 September 2011, with the result that settlement was to take place on 14 October 2011.
Clause 4.2 provides as follows:
4.2Seller to Supply
Upon Settlement the Seller must provide:
(a)clear and unencumbered title to the Property subject to the Specified Encumbrances and
(b)must provide all withdrawals, discharges, surrenders, and/or notices of satisfaction (in registrable form if reasonably required by the Buyer) of all mortgages and charges affecting and/or being encumbrances on the Land.
(c)any deed of affirmation or other documentation relating to the Leases and their continuation after Settlement as the Buyer may reasonably require.
(d)Attornment Notices for each Tenant holding a Lease in relation to premises within the Property directing the Tenants to pay to the Buyer all rent and moneys payable by such Tenant pursuant to the terms of the relevant Lease as and from the Settlement Date.
…

Events preceding settlement

By letter dated 26 August 2011, the company trading as Harvey Norman wrote to the property manager representing the Seller advising that the business of Rick Hart at the premises had closed due to substantial losses being incurred, and proposing that the lease be surrendered on payment of three months' gross rent. The company trading as Harvey Norman is the parent company of Lesandu, which had taken an assignment of the original Rick Hart Lease from the original lessee, Clive Peeters Ltd, by deed dated 7 July 2010, to which the Seller consented by deed dated 23 August 2010.
By letter dated 31 August 2011 from the Purchasers' solicitors to the Seller's solicitors, the Purchasers expressed 'the utmost concern' in relation to the closure of the Rick Hart store and the proposed surrender of the lease. In that letter, the Purchasers' solicitors pointed out that the transfer of the Rick Hart Lease from Clive Peeters Ltd to Lesandu had not been registered, and also referred to the fact that the Avanti Lease had not been registered. The letter asserted that the Purchasers had obtained advice from senior counsel to the effect that registration of a transfer to the Purchasers would extinguish any lease for a term greater than five years that is not registered or protected by a caveat.
The letter stipulated that, pursuant to cl 4.2(c) of the Sale Contract, at settlement the Seller was to provide a deed of affirmation in respect of each current tenant whose lease was for a term of greater than five years and that is not registered on the title to the property, such deed to be prepared by the Purchasers' solicitors.
By letter dated 31 August 2011, representatives of the Seller responded to Harvey Norman advising that its proposal to surrender the lease was not acceptable, and requiring that all obligations under the Rick Hart Lease be met for the balance of its term.
Solicitors acting on behalf of the Seller wrote to the solicitors acting on behalf of the Purchasers by letter dated 2 September 2011. In that letter they enclosed copies of documents relating to the assignment of the Rick Hart Lease from Clive Peeters Ltd to Lesandu, observing that they were in registrable form, and advising that they were 'currently arranging to complete the registration'. The letter expressed the hope that this would satisfy the Purchasers' concerns with respect to the Rick Hart Lease.
The letter also requested the solicitors for the Purchasers to provide a draft of the proposed deed of affirmation relating to the Avanti Lease.
By letter dated 9 September 2011, the Seller wrote to Harvey Norman confirming that it was not prepared to accept a surrender of the Rick Hart Lease. By letter dated 14 September 2011, Harvey Norman responded to the effect that its position remained as set out in earlier correspondence, and requesting that all future communications on the subject be directed to Harvey Norman's solicitors.
By letter dated 15 September 2011, the Seller's solicitors wrote to the Purchasers' solicitors attaching copies of email correspondence which suggested that further information had been requested from Harvey Norman relating to the full name of one of the signatories to the deed of assignment of lease, in order that those details could be provided on the transfer which was to be lodged with the Registrar of Titles.
By notice of the same date, 15 September 2011, other solicitors acting on behalf of the Seller issued notice of default to Lesandu, as a result of non‑payment of rent due under the Rick Hart Lease.
As I have noted, on 16 September 2011, notice was given by the Seller to the Purchasers pursuant to cl 1.4(f) of the Sale Contract, which had the effect that settlement was due to take place on 14 October 2011.
By email dated 22 September 2011, solicitors acting on behalf of the Seller affirmed earlier advice to the effect that the Seller proposed to register the transfer of the Rick Hart Lease. Further, by letter dated 28 September 2011, the solicitors for the Seller wrote to the Purchasers' solicitors advising that the transfer of lease had been executed and was in registrable form. The Purchasers' solicitors responded by letter dated 30 September 2011 raising a query with respect to the alteration of the transfer document subsequent to its execution to include the full name of one of the signatories, and its effect upon registrability of the transfer.
On 4 October 2011, the Seller commenced legal proceedings against Lesandu claiming $60,367.98 being arrears of rental due under the Rick Hart Lease.
By letter dated 6 October 2011, solicitors acting on behalf of the Purchasers wrote to solicitors acting on behalf of the Seller giving notice that pursuant to Special Condition cl 4.2(c) the Seller was required to provide at settlement deeds of affirmation executed by Lesandu and the Avanti tenants affirming the validity and enforceability of the relevant leases by and for the benefit of the Purchasers from settlement and thereafter, together with documents establishing that the transfer of the Rick Hart Lease to Lesandu had been registered. The letter concluded by requesting confirmation that those documents would be provided at settlement.
On 10 October 2011 solicitors acting on behalf of the Seller sent an email to solicitors acting on behalf of the Purchasers confirming that documents relating to the registration of the transfer of the Rick Hart Lease to Lesandu had been lodged for registration (as was the case).
The solicitors for the respective parties exchanged further correspondence in the days preceding the days fixed for settlement. In that correspondence, solicitors acting on behalf of the Seller maintained the position that cl 4.2(c) of the Sale Contract did not entitle the Purchasers to require the documents specified in the letter of 6 October 2011. However, deeds of affirmation in the terms provided by the Purchasers' solicitors had nevertheless been provided to the relevant tenants (Lesandu and the Avanti tenants). The Purchasers maintained their entitlement to the documents set out in the letter of 6 October 2011, and indicated that settlement would not take place unless and until those documents were provided.
Settlement did not take place on 14 October 2011. On 17 October 2011, the Purchasers gave notice of default to the Seller, alleging failure to comply with cl 4.2(c) of the Special Conditions of Contract and requiring that default to be remedied within ten business days. On 18 October 2011, the Seller gave to the Purchasers notice of default, asserting that the Purchasers were not ready, willing and able to settle because they had failed to provide a signed stamped transfer within a reasonable time before settlement, and required that default to be remedied.

Following the expiry of the period specified by the Purchasers within which the Seller's default was to be remedied, on 2 November 2011, the Purchasers gave notice to the Seller terminating the Sale Contract.
Although it seems that registration of the transfer of the Rick Hart Lease to Lesandu was subsequently achieved, and that the tenants under the Avanti Lease were willing to execute the deed of affirmation provided to them, neither of those things occurred prior to the Purchasers' termination of the Sale Contract.

The decision at first instance

As I have noted, the Seller commenced proceedings claiming specific performance of the Sale Contract, and the Purchasers counterclaimed in those proceedings for a declaration that the contract had been lawfully terminated by them because of the Seller's default. The defaults alleged, as defined by par 12 of the defence and counterclaim, were the failure to provide at settlement:
12.1a deed of affirmation executed by the [Seller] and Lesandu that in its terms affirmed, at least, the validity and enforceability of the Rick Hart Lease by and for the benefit of the Purchasers from settlement of the [Sale] Contract and thereafter;
12.2a deed of affirmation executed by the [Seller] and L & J Boulton that in its terms affirmed, at least, the validity and enforceability of the Avanti Lease by and for the benefit of the [Purchasers] against L & J Boulton from settlement of the [Sale] Contract and thereafter;
12.3a document or documents evidencing the registration of the Rick Hart Lease Transfer.
A number of propositions unsuccessfully asserted by the Seller at trial have not been pursued on appeal. Accordingly, it is only necessary to refer to those parts of the decision at first instance which are relevant to the issues raised by the appeal.
The trial judge concluded that the Seller was in default by failing to provide evidence of registration of the transfer of the Rick Hart Lease to Lesandu. In his view, in a system of land title by registration, documents providing evidence of registration of the transfer of lease fell within the natural and ordinary meaning of the words used in cl 4.2(c) being 'documentation relating to the Leases and their continuation after settlement'. In his view, documents evidencing registration of the transfer of the Rick Hart Lease fell within cl 4.2(c), construed in the context of the Sale Contract as a whole, including in particular cl 3.1 which obliged the Seller to transfer and assign the benefit of each lease to the Purchasers 'to the extent possible at law'. The trial judge concluded that the Purchasers' request for documents providing evidence of the registration of the transfer of the Rick Hart Lease was reasonable in all the circumstances, which included the position which had been adopted by Lesandu, which had ceased conducting business from the premises and was proposing to surrender the lease.
The trial judge rejected a submission put on behalf of the Seller to the effect that documents providing evidence of the registration of the transfer of the lease were not reasonably required because s 77 of the Property Law Act 1969 (WA) preserved both the benefit and the burden of the lease, irrespective of the provisions of the Act. The trial judge did so in reliance upon the decision of Master Sanderson in Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2007] WASC 88, in which it was held that an unregistered lease for a term exceeding five years which was not protected by a caveat was 'destroyed' upon the registration of a new proprietor of the freehold title [32]. The trial judge held that even if that view of the law was not correct, its enunciation in a decision which had not been overturned or disapproved on that ground (the decision was reversed on appeal, but on unrelated grounds) provided a reasonable basis for the Purchasers' request. This is one of those aspects of the decision of the trial judge which has not been challenged on appeal.
The trial judge also concluded that the Seller was in default by failing to provide a deed executed by the Avanti tenants affirming, at least, the validity and enforceability of the Avanti Lease by and for the benefit of the Purchasers from settlement and thereafter. In that context he observed:
In one respect the Requested Avanti Deed also goes beyond the meaning of a deed of affirmation. That respect is that it affirms the validity and enforceability of the Avanti Lease by and for the benefit of Ryom and Kedo. In other words, the minimum content of the requested document was both a deed of affirmation and an assignment of rights.
Although the requested document went beyond the meaning of a 'deed of affirmation' it falls within the broader meaning of 'other documentation relating to the Leases and their continuation after Settlement' … [173] ‑ [174].
The reasons given by the trial judge for that conclusion included the observation that:
[T]he request for assignment so that the validity and enforceability of the Avanti Lease is and [sic] for the benefit of Ryom and Kedo is within the plain meaning and content of the words 'the Leases and their continuation after Settlement' [176].
That view was reinforced by the same observations he had made with respect to the provision of documents evidencing the registration of the transfer of the Rick Hart Lease, and in respect of the obligation imposed by cl 3.1 of the Special Conditions in particular, requiring the Seller to transfer the benefit of each lease to the Purchasers 'to the extent possible at law'.
The trial judge concluded that the Seller was not in default as a result of its failure to provide a deed executed by Lesandu affirming, at least, the validity and enforceability of the Rick Hart Lease by and for the benefit of the Purchasers from settlement of the Sale Contract and thereafter because, in his view, it was not reasonable for the Purchasers to request such a deed. The trial judge arrived at that conclusion because:
(a)documents providing evidence of registration of the transfer of the Rick Hart Lease, if they had been provided, would have provided the Purchasers with sufficient protection of their interests; and
(b)in the circumstances it was clear to all that it was most unlikely that Lesandu would execute the deed.
For reasons which it is unnecessary to elaborate, the trial judge concluded that the Purchasers were ready, willing and able to perform their obligations under the Sale Contract at all material times, and that their notice of termination of that contract was valid and lawful, and that they were entitled to a declaration to that effect.

The grounds of appeal

There are three grounds of appeal. It is unnecessary to recite their precise terms. It is sufficient to record that, following the abandonment of one aspect of those grounds at the commencement of the hearing of the appeal, the first two grounds embody the following propositions:
(a)the trial judge erred in concluding that the Seller was in default by failing to provide evidence of the registration of the transfer of the Rick Hart Lease to Lesandu because cl 4.2(c) of the Sale Contract did not, on its proper construction, entitle the Purchasers to, in effect, require the Seller to achieve registration of any transaction; (ground of appeal 1(a))
(b)the trial judge erred by erroneously characterising the deed of affirmation which the Purchasers had requested in relation to the Avanti Lease as involving an affirmation and assignment of the lease, when all that had been requested was a deed which had the sole purpose and effect of ensuring that the unregistered lease did not become unenforceable upon registration of a transfer of the land to the Purchasers; (ground of appeal 2(a))
(c)it was not reasonable for the Purchasers to request either evidence of the registration of the transfer of the Rick Hart Lease, or a deed confirming the continuing enforceability of the Avanti Lease after transfer of title to the Purchasers, because the enforceability of each of the Rick Hart Lease and the Avanti Lease could have been achieved by the Purchasers taking a transfer of title subject to specified unregistered interests in the form of the assigned Rick Hart Lease and the Avanti Lease. (grounds of appeal 1(b) and 2(b))
The third ground of appeal relies upon the success of the first two grounds, and contends that by reason thereof, the Seller's claim for specific performance should have been upheld. As such, it does not require separate consideration.
It is appropriate to set the context for these propositions by referring briefly to the provisions of the Act which are said to justify the Purchasers' request. Section 68(1) provides that, subject to certain exceptions, the proprietor of land or of any estate of interest in land under the operation of the Act shall hold the same subject to such encumbrances as may be notified on the registered certificate of title for the land but absolutely free from all other encumbrances.
However, s 68(1A) provides that despite subsection (1), the land included in any certificate of title shall be deemed to be subject to, amongst other things:
[A]ny prior or unregistered lease or agreement for lease or for letting for a term not exceeding 5 years to a tenant in actual possession notwithstanding the same respectively may not be specially notified as encumbrances on such certificate or instrument but no option of purchase or renewal in any such lease or agreement shall be valid as against a subsequent registered interest unless such lease or agreement is registered or protected by caveat.
Each of the Rick Hart Lease and the Avanti Lease were for a term exceeding five years, and accordingly, could not fall within the exception to indefeasibility of title provided by s 68(1A). Although the Rick Hart Lease had been registered, the transfer of that lease to Lesandu had not been registered, nor had Lesandu lodged any caveat acknowledging or claiming its interest in that lease. The Avanti Lease had not been registered, nor had any caveat been lodged acknowledging or claiming the interests of the Avanti tenants in that lease.
In this statutory context, the Purchasers expressed concern, apparently based upon advice received from senior counsel, to the effect that registration of the transfer of title in the property to them would have the consequence that their title would not be subject to any leasehold interest in favour of Lesandu (because the transfer of the registered lease to it had not been registered) or the Avanti tenants (because the Avanti Lease was not registered); s 68 of the Act would have the effect that the leases were unenforceable by them as against those tenants.
As I have noted, a submission to the effect that s 68 of the Act did not have this effect, relying in part upon the combined effect of s 77 and s 78 of the Property Law Act was dismissed by the trial judge. The trial judge relied upon the reasoning enunciated by Master Sanderson in Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd, and upon the fact that whether it was correct or not, the decision provided a reasonable basis for the Purchasers' requests, given that the relevant part of Master Sanderson's reasons has not been overturned or disapproved. No appeal has been brought from that aspect of the decision of the trial judge, and indeed the appeal has been conducted on the basis of the premise that the Purchasers' concerns with respect to the possible effect of s 68 of the Act were justified, at least in respect of an unqualified transfer of the land to the Purchasers. In those circumstances it would not be appropriate to determine this appeal on any other premise, or to question its validity. However, it follows that these reasons should not be construed as necessarily endorsing the legal premise underpinning the Purchasers' concerns, which has not been the subject of contentious argument or detailed consideration.

The first proposition - documents providing evidence of the registration of the transfer of the Rick Hart Lease

The following arguments were advanced in support of the Seller's contention that it was not in default by failing to provide documents which provided evidence of the registration of the transfer of the Rick Hart Lease to Lesandu. First, it is said that cl 4.2(c), on its proper construction, is concerned with the provision of documents at settlement, and is not concerned with the very different concept of registration of leases or of other instruments relating to the leases. Second, it is said that the effect of the construction for which the Purchasers contend would be to, in effect, render the Sale Contract conditional, at the election of the Purchasers, upon the Seller procuring registration of documents relating to the leases, and that this conclusion is not justified by the language of the Sale Contract, and in particular, cl 4.2(c). Third, it is contended that cl 3.1 defines the extent of the Seller's obligation with respect to the transfer of the leases, and that clause does not in terms require the Seller to procure registration of the transfer of the Rick Hart Lease to Lesandu. Fourth, it is argued that because cl 4.2(c) only entitles the Purchasers to request the provision of documents that are reasonably required, the right should not be construed as extending to documents which will require the cooperation or action of third parties over whom the Seller has no control, such as the Registrar of Titles, or the parties to the assignment of the Rick Hart Lease.
The proper construction and effect of cl 4.2(c) of the Sale Contract underlies many of these contentions. It is unnecessary to regurgitate well‑established principles of contractual construction every time such an issue arises. For present purposes I am content to adopt and apply the recent statement of those principles by Beech J in Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 [106] ‑ [112].
It is clear from the terms of the Sale Contract as a whole that its commercial objectives included, as a vital element, the effective assignment of both the benefit and the burden of the leases to which the land was subject from the Seller to the Purchasers. Clause 3 of the Special Conditions of the Sale Contract clearly and unequivocally manifests the objective intention of both parties in this respect.
Accordingly, while it is, of course, correct to observe that cl 4.2(c) is concerned with the production of documents at settlement, the ambit of the documents that might reasonably be required by the Purchasers is to be assessed in the light of the commercial objectives of both parties evident in the terms of the Sale Contract, including the objective of effectively assigning the benefit and the burden of the leases.
The Seller no longer contends (as it did at trial) that only documents in existence at the time the Sale Contract was concluded can be requested under cl 4.2(c) (appeal ts 42). Any such contention is inconsistent with cl 3.1, which imposes obligations upon the Seller which would very likely require the execution of further documentation, and with the terms of cl 4.2(c) itself, which refers to deeds of affirmation which could not have been in existence at the time the Sale Contract was concluded, because execution of such deeds presupposes the transfer of the reversionary interest from the Seller to the Purchasers which was effected by the Sale Contract.
Acceptance of the proposition that cl 4.2(c) extends to and includes documents not in existence at the time the Sale Contract was entered into, is consistent with the proposition that the clause extends to and includes any and all documents which the Purchasers might reasonably require to be brought into existence in order to give effect to the commercial objective to which I have referred: the effective assignment of both the benefit and the burden of the leases from the Seller to the Purchasers. The latter proposition should be accepted. It conforms to the natural and ordinary meaning of the language used in the clause - 'any deed of affirmation or other documentation relating to the leases and their continuation after settlement' - and with the commercial objective evident in the terms of the Sale Contract as whole. This conclusion is sufficient to answer the various arguments advanced by the Seller in support of its first proposition.
Responding to the Seller's arguments using the numbering in [54] above, first, if the effective assignment of the benefit and the burden of a lease requires registration of a transaction, in a context in which the parties were dealing with land subject to a system of title by registration, there is no reason to construe either the Sale Contract, or cl 4.2(c), as implicitly excluding the provision of documents which provide evidence of a registered transaction. In effect, the Seller's contention comes down to the proposition that the Sale Contract should be construed as incorporating words of limitation upon the class of documents which the Purchasers might reasonably require which the parties did not in fact include.
Second, the effect of the construction of cl 4.2(c) for which the Purchasers contend would not have the effect of rendering the contract conditional at their election, to any greater extent than is consistent with the achievement of the commercial objective evident from the language used by the parties. Put another way, if the Purchasers reasonably require the provision of documents at settlement so as to establish the achievement of the objective of effectively assigning the benefit and the burden of the leases to the Purchasers, there is no reason that requirement should not be attributed to the common intention of the parties manifested by the language they have used in cl 4.2(c) and the Sale Contract as a whole.
In relation to the Seller's third argument, the source of the Seller's obligation to provide documents evidencing registration of the transfer of the lease to Lesandu is not cl 3.1, but cl 4.2(c). That clause can and should be construed by reference to other provisions in the Sale Contract, including cl 3.1, which lends support to the Purchasers' construction of cl 4.2(c), because it expressly obliges the Seller to take any and all measures necessary to achieve the commercial objective to which I have referred.
In relation to the Seller's fourth argument, the provision of cl 4.2(c) to the effect that any requirement for the provision of documents be reasonable directs attention to all the circumstances which prevail at the time of the request. In that context, hard and fast rules cannot be extracted from the language used in the clause or the Sale Contract to the effect that the necessary involvement of a third party would inevitably lead to the conclusion that the request was unreasonable. This is, of course, not to say that the necessary involvement of third parties might not assist the conclusion that the request was unreasonable in all the circumstances, as the trial judge in fact found in the case of the deed of affirmation relating to the Rick Hart Lease, given the attitude of Lesandu.
In the case of the registration of the transfer of the Rick Hart Lease to Lesandu, prior to the Purchasers' request that documents evidencing the registration of that transfer be provided at settlement, relevant circumstances included the fact that the solicitors for the Seller had advised the Purchasers' solicitors that they were in possession of transfer documents in registrable form and were proceeding to secure registration. In those circumstances there is no basis upon which it could be asserted that the request for documents providing evidence of registration of that transfer was unreasonable because of the need for the involvement of parties other than the Registrar of Titles. So far as the involvement of the Registrar is concerned, it is, of course, commonplace for transactions with respect to the sale of land to be conditioned upon the antecedent registration of other transactions by the Registrar, and there is nothing in the language of the Sale Contract which would support the conclusion that it was the common objective and intention of the parties to exclude registration from the range of steps properly taken prior to settlement in order to achieve the commercial objective to which I have referred. The explicit wording of cl 3.1 is directly contrary to any such suggestion.

For these various reasons, the Seller's first proposition must be rejected.

The second proposition - the deed of affirmation of the Avanti Lease

The first point to be noted with respect to this proposition is that the trial judge was correct to conclude that the Seller was in default by reason of failing to provide documents providing evidence of the registration of the transfer of the Rick Hart Lease to Lesandu, and that this is sufficient to sustain the conclusion that the Seller's claim should be dismissed and the Purchasers' counterclaim upheld, irrespective of any finding with respect to the Avanti Lease. As I have concluded that the trial judge was correct in that respect, the resolution of the Seller's second proposition is, to that extent, otiose.
The second point to be noted with respect to this proposition is that it is not at all clear what consequences are said to flow from its acceptance. The proposition is to the effect that the trial judge erred by concluding, in the passage set out at [42] above, that the deed requested by the Purchasers went beyond a document which affirmed the validity and enforceability of the Avanti Lease by and for the benefit of the Purchasers against the Avanti tenants from settlement and thereafter and included 'an assignment of rights'. Viewed in its context, reference to 'an assignment of rights' can only mean an assignment of the rights of the landlord from the Seller to the Purchasers. Such an assignment is expressly required by cl 3.1 of the Special Conditions of the Sale Contract. To the extent that it was necessary for the Avanti tenants to affirm and acknowledge that assignment in order to render it legally effective as against them, such an affirmation and acknowledgement falls readily within the terminology used by the Purchasers' solicitors in their letter of 6 October 2011, and in the Purchasers' pleaded case, and by the trial judge - namely, a document which affirmed the validity and enforceability of the Avanti Lease by and for the benefit of the Purchasers against the Avanti tenants.
Further, affirmation by the Avanti tenants of the assignment of the rights of landlord from the Seller to the Purchasers is entirely consistent with the Seller's proposition contained in ground 2(a) of the grounds of appeal to the effect that the trial judge should have approached the case on the basis that the document requested was a document which had 'the sole purpose and effect of ensuring that [sic the] unregistered lease did not become unenforceable upon registration of a transfer of the property to the [Purchasers].'
Put another way, it cannot be successfully contended that reference by the trial judge to an assignment of rights took the characterisation of the document requested by the Purchasers in relation to the Avanti Lease:
(a)beyond the provisions of the Sale Contract; or
(b)beyond the terminology used in the Purchasers' request contained in their solicitor's letter of 6 October 2011; or
(c)beyond the Purchasers' pleaded case; or
(d)beyond the proposition for which the Seller contends in the relevant ground of appeal.
Nor could it be successfully contended that reference by the trial judge to an assignment of rights had any significant effect upon his process of reasoning, or led him into error. Clause 4.2(c) is not restricted to 'deeds of affirmation', but extends to and includes 'other documentation relating to the leases and their continuation after settlement'. The trial judge expressly held that the plain meaning and content of those words included that which was required (in his view an assignment) to ensure the validity and enforceability of the Avanti Lease for the benefit of the Purchasers [176], which is precisely how the Purchasers' case was run, and precisely how the Seller contends that the trial judge should have approached the case, in ground 2(a) of the notice of appeal. In the passage of his reasons to which this proposition relates, the trial judge expressed the view that the deed required in respect of the Avanti Lease went beyond the ordinary meaning to be given to the expression 'deed of affirmation' by including an assignment of rights, but did not hold, nor should he have held, that such a deed went beyond that which was requested by the Purchasers, or beyond that which could be reasonably required pursuant to cl 4.2(c) of the Sale Contract.
At points during the course of oral argument, it seemed to be suggested that acceptance of the proposition advanced would lead to the conclusion that the Purchasers' request relating to the Avanti Lease was not reasonable because it would not have been effective without an assignment of rights, which was beyond the terms of the Purchasers' request (ts 41). However, that proposition was not run at trial, nor is it apparent within any of the grounds of appeal. It is expressly contrary to the terms of ground 2(a) which proposes that the trial judge should have approached the case on the basis that the Purchasers' request in respect of the Avanti Lease was for 'a deed which had the sole purpose and effect of ensuring that [sic the] unregistered lease did not become unenforceable upon registration of a transfer of the property'.
At other points in the oral argument it seemed to be suggested that the point of this proposition was in substance to sustain the Seller's third proposition, to the effect that the Purchasers' rights could have been adequately protected by the Purchasers taking a transfer subject to the unregistered Avanti Lease and in that context, negating the proposition that something more was required, in the form of an assignment of rights. In the end, this seemed to be the emphasis of the oral argument presented during the course of the appeal. Because, for the reasons which follow, the Seller's third proposition should not be countenanced on appeal, if this was the true purpose of the seller's second proposition, it is to no avail.
At all events, for the various reasons I have given, reference by the trial judge to the document relating to the Avanti Lease requiring an assignment of rights involved no error, and the Seller's second proposition must be rejected.

The third proposition - the Purchasers should have taken a transfer subject to unregistered interests

The Seller's third proposition does not contend error on the part of the trial judge. That is because the proposition was not advanced at trial. Nevertheless, it is now asserted that the appeal should be upheld because, as a matter of law, this court should conclude that the Purchasers' requests were unreasonable because their interests could have been adequately protected by taking a transfer of title subject to the unregistered interest of Lesandu in the Rick Hart Lease, and the unregistered Avanti Lease, with the result that registration of the transfer would not have extinguished those interests.
The legal propositions underpinning this contention may be shortly stated. The Seller points to the reference in s 68(1A) of the Act to the land included in any certificate of title being subject to the reservations, exceptions or conditions in the transfer of the fee simple, which is said to be consistent with the language of s 82 of the Act which refers to the transfer of the estate and interest to which the proprietor shall be entitled or able to transfer. Reference was also made to two cases - Chirnside v The Registrar of Titles [1921] VLR 406 and Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407.
In Chirnside, the Full Court of the Victorian Supreme Court considered the question of whether a registered proprietor could execute a transfer of land containing an exception and reservation by the proprietor of all coal, lignite and other minerals 50 feet below the surface of the land transferred. The Registrar of Titles refused to register the transfer on the basis of an assertion that the relevant act did not permit a registered proprietor to deal with land and any mineral resources contained within that land separately, nor was any transfer purporting to do so a valid instrument lodged in accordance with the relevant act.
Mann J (with whom Irvine CJ and Cussen J agreed) stated that 'the right of registered proprietors to make express reservations and exceptions on the transfer of their land' was only constrained by the effect of the relevant statute (411). In the submission of counsel for the Seller, the effect of this decision is to establish the proposition that a registered proprietor is free to transfer whatever estate or interest they wish, including reversionary interests. In this instance, counsel for the Seller argued that a transfer of land could be qualified by recording the unregistered leases as encumbrances on the certificate of title, in the second schedule of that document, pursuant to s 68 of the Act.
In Leros, the High Court considered whether or not an option to renew attached to an unregistered lease of five years was extinguished by a subsequent transfer of land under the Act. After the lease was granted, the land which was the subject of the lease was transferred twice. After the first transfer, the lessee lodged a caveat to protect the lease and the option to renew. The High Court determined that the option had been extinguished by the registration of the first transfer, and that the caveat had no effect, but that the lease was nevertheless protected by virtue of the operation of s 68(1A) of the Act. The High Court also considered the effect of a caveat lodged on behalf of a bank to protect its interest in a mortgage of the lease granted by the lessee. The High Court determined that the caveat protected the lessee's interest to the extent necessary to protect the bank's subordinate interest (421).
In referring to the first transfer of the land at issue in Leros, the plurality of the High Court referred to the fact:
That registration was not expressed to be subject to the lease or to the option to renew (413).
Inherent within this observation, in the submission of counsel for the Seller, is the proposition that the registration could have been made subject to the lease or the option to renew, despite the fact that neither the lease or the option to renew were registered or protected by caveat at the time of the first transfer.

Should the Seller be permitted to advance this proposition for the first time on appeal?

The Seller expressly conceded that the proposition advanced on appeal was not ventilated at trial. Accordingly, the first question which must be determined is whether the Seller should be permitted to advance this proposition for the first time at this stage of the proceedings.
The principles governing the question of whether an appellant should be permitted to raise a new argument on appeal were set out at length by this court in McLennan v McCallum [2010] WASCA 45 [80] ‑ [88] (Buss JA, McLure P & Newnes JA agreeing). As the High Court stated in University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481, referred to in McLennan:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so (483).
In Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, Mason CJ, Wilson, Brennan and Dawson JJ expanded on the nature of the exceptional circumstances in which it would be appropriate for a new argument to be raised on appeal:
Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied (497).
In McLennan Buss JA (with whom McLure P and Newnes JA agreed) stated the basis for the rule against raising a new argument on appeal without exceptional circumstances:
The juridical basis of the principles…appears to derive, in part, from public policy considerations directed to ensuring finality in litigation and, in part, from the doctrine of estoppel by election in the conduct of litigation. However, to the extent that some aspects have their origin in estoppel by election, the relevant consideration is not that the other party is put in a worse position, but that he or she may have been put in a worse position. See Banque Commerciale SA, en liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279, 284 (Mason CJ & Gaudron J) [87].
In relation to the prejudice which the a party may suffer as a result of the other party being able to raise a new argument on appeal, there is ample authority to suggest that an argument cannot be raised on appeal if it cannot be resolved fairly without the parties having to adduce evidence, or where the facts are not admitted or beyond controversy: McLennan v McCallum [82] (Buss JA, McLure P & Newnes JA agreeing); Mammoth Investments Pty Ltd v GIO General Ltd [2007] WASCA 34 [51] (Martin CJ, Pullin & Buss JA agreeing); Water Board v Moustakas 497 (Mason CJ, Wilson, Brennan and Dawson JJ); Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7 ‑ 8 (Gibbs CJ, Wilson, Brennan and Dawson JJ); O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, 319 (Mason J).
On this point, the comments of Gleeson CJ, McHugh and Gummow JJ in Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 are of direct relevance. Their Honours said:
It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party/party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs [51]. (footnotes omitted).
Consistently with these principles, counsel for the Seller properly conceded that if the court concluded that there was any evidence that could have been led at trial relevant to the determination of this proposition, it should not now be entertained, as no such evidence was led. However, counsel contended that as the issue was purely a question of law, there was no evidence which could have been led that was relevant to its resolution.
The proposition that the questions raised at trial with respect to the application and effect of cl 4.2(c) of the Sale Contract could be resolved entirely by reference to the resolution of a question of law must be rejected. The question posed at trial was essentially a question of fact - namely, whether the Purchasers' requests that the Seller provide documents at settlement were reasonable. As Latham CJ stated in Opera House Investment Pty Ltd v Devon Buildings Pty Ltd [1936] HCA 14; (1936) 55 CLR 110::
The word 'reasonable' has often been declared to mean 'reasonable in all the circumstances of the case' (116).
See also Lockrey v Historic Houses Trust of New South Wales [2012] NSWCA 249.
Accordingly, the question to be resolved is not simply the question of whether it would have been open to the Purchasers to adequately protect their interests by utilising the conveyancing technique which the Seller now contends should have been utilised. Rather, the question is whether, having regard to the possible use of that technique, the Purchasers' requests to the effect that the Seller provide documents at settlement were nevertheless reasonable. That question is essentially a question of fact, to be resolved by reference to all the relevant circumstances of the case.
One most relevant circumstance is the fact that no party suggested that the Purchasers should utilise this conveyancing technique at any time prior to settlement, or indeed prior to this appeal. The likely response of the parties and their legal advisers in the event that such a proposal had been advanced must therefore be entirely speculative. This points to a very significant gap in the evidence required to determine whether, in all the circumstances, the Purchasers' requests were reasonable.
Had this point been taken at trial, evidence with respect to conveyancing practice and usage would no doubt have been relevant. If, for example, the practice of taking a transfer subject to an unregistered interest was largely unknown to conveyancing practitioners of repute, or on the other hand, was a commonplace practice, such facts would be relevant to the assessment of the reasonableness of the Purchasers' requests. Evidence of any known practice of the Registrar in relation to the acceptance of transfers expressed in such a form would also be relevant to the assessment of the reasonableness of any proposal to the effect that the Purchasers' interests could have been adequately protected by utilisation of that conveyancing technique.
It should also be noted that the question to be determined at trial, and on appeal, is not whether some other conveyancing mechanism, not identified by the parties at the relevant time, would have been efficacious. Rather, the question was, and remains, whether the requests actually made by the Purchasers were reasonable. The fact that some other unidentified conveyancing mechanism may have been efficacious does not of itself resolve that question. If the conveyancing technique had been identified at trial, evidence might well have been led not only on the topics to which I have referred, but also on the question of whether conveyancing practitioners of repute would have regarded the Purchasers' requests for documents to be more efficacious than the technique of taking a transfer subject to unregistered interests.
In the absence of evidence this court is not in a position to make any assessment of facts such as those identified in the preceding paragraphs. The fact that the Seller's representatives have only been able to identify two decided cases in the entire history of dealings in land subject to title by registration in Australia in which reference is made to the possibility of a transfer subject to unregistered interests suggests that the practice is not commonplace, widespread, or generally regarded as legally efficacious. However, the present question is not whether the court should draw such an inference, but rather whether there is any topic upon which evidence could have been led at trial that would be relevant to the resolution of the question posed by the proposition now advanced by the Seller. If that question is answered in the affirmative, as it must be for the reasons I have given, the Seller's proposition cannot now be entertained.
For these reasons, the Seller's third proposition should not now be entertained or resolved by this court.

Conclusion

As each of the propositions advanced by the Seller in support of its appeal must be rejected, the appeal should be dismissed.
PULLIN JA: The appellant entered into a contract to sell an estate in fee simple in land for $12 million, and to transfer the benefit of six leases. One of the leases was an unregistered lease for a term of more than five years (the Avanti Lease). Another was a lease for a term of more than five years that had been registered, but a transfer of the lease to an assignee had not (the Rick Hart Lease).

The intention of the parties ascertained from the contract, was that the respondents as purchasers were to have the benefit of the six leases after settlement. However, as the appellant acknowledged, if the transfer of title to the land by the appellant to the respondents took place, then the unregistered Avanti Lease and transfer of the Rick Hart Lease (the unregistered leases) both of which were for terms of more than five years, would be extinguished: Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407, 418. This would have been a particular problem in relation to the Rick Hart Lease. The tenant of the Rick Hart Lease wanted to terminate its lease as a result of the Rick Hart business on the premises closing. Thus, it was clear that the Rick Hart tenant had to be tied up legally because if registration of the transfer of title extinguished the lease, that would have suited the tenant who did not wish to continue, but it would not have suited the respondents who wanted the income flow in the form of rent which the Rick Hart tenant was obliged to pay under the lease with the appellant.
The terms of the contract for the sale of the estate provided:
3.1Transfer of Leases
(a)The Seller will to the extent possible at law transfer and assign and the Buyer will take the benefit of each Lease with effect as from the date that Settlement actually occurs.
(b)The Seller agrees at Settlement to provide such Notices of Attornment or other advice to tenants as may reasonably be required by the Buyer to note the change of ownership in the Property and the assumption of the position of landlord under the various Leases by the Buyer.
The language of cl 3.1(a) is infelicitous because if the effect of s 68 of the Transfer of Land Act 1893 (WA) is kept in mind, then an unregistered lease of more than five years would be extinguished after

registration of the transfer of title from seller to buyer takes place, which would mean that it was then not possible to transfer and assign the benefit of each lease from settlement date without a soon to be followed registration extinguishing the unregistered leases. Nevertheless, the intention was clear, namely that all the lessees should be bound after settlement until the expiry of the terms of the leases.

Clause 4.2(c) of the contract of sale provided that:
Upon Settlement the Seller must provide … any documentation relating to the Leases and their continuation after Settlement as the Buyer may reasonable require.
The respondents called for documents, including a deed of affirmation as to the validity and enforceability of the Avanti Lease and documents evidencing the registration of the Rick Hart Lease (Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2012] WASC 443 [82]), which was the way the respondents considered that their position could be secured. The appellant contended on this appeal that there was another way that the respondents' position could be secured. The appellant's submission was that the respondents would have been protected by leaving the Avanti Lease and the transfer of the Rick Hart Lease unregistered and noting on the transfer of title that the transfer of the estate in fee simple was taken subject to encumbrances in the form of the two unregistered leases. The respondents pointed out that this had not been the appellant's case at trial, and that if it had been, expert evidence would have to have been adduced about the effectiveness of such a device. The respondents submitted that there was material in the registrar's handbook produced by Landgate which might be read as suggesting that a transfer subject to an unregistered lease of more than five years would not be accepted for registration.
The appellant submitted that it was not a matter of evidence, but a matter of law as to whether it would be possible to lodge a transfer showing it as being subject to such encumbrances. It is not necessary to decide that point. Even if it is assumed that such a device could be employed, it was not what the respondents had asked for. There was no dispute raised by the appellant that registering the unregistered leases was not a sure and certain way of protecting the respondents and ensuring that the lessees continued to be obliged as tenants to pay rent in accordance with the lease terms after settlement and after registration of the transfer of the sale between seller and buyer. Not only could that have been done, but it was the way nominated by the respondents and agreed to by the appellant in respect of the Rick Hart Lease. The appellant, through its solicitors by letter dated 2 September 2011, stated that it was in the process of arranging the registration (GAB 125).
Unfortunately, the appellant did not take steps in relation to the registration of the Rick Hart Lease in time to put themselves in the position of providing evidence at settlement that the Rick Hart Lease had been registered. Not only were they not able to produce such evidence on the date which had been agreed, but they were not able to produce such evidence within the period provided in the default notice. No such evidence was provided before the notice of termination was served by the respondents, nor was it provided before proceedings had been commenced.
In respect of the Avanti Lease, the appellant, through its solicitors, in the same letter dated 2 September 2011 referred to above, invited the respondents to forward a proposed draft of the requested deed of affirmation to them for their consideration and so that they could approach the tenant of the Avanti Lease in relation to the same. The solicitors for the respondents forwarded the proposed draft deed by letter dated 23 September 2011. Dispute arose and correspondence ensued between the solicitors for the appellant and the respondents. See the trial judge's reasons [39] ‑ [72]. It is unnecessary to go into detail about that dispute here. For present purposes, it is sufficient to note that the trial judge found that the deed of affirmation in relation to the Avanti Lease was reasonably required [178] and that the appellant was required to, but did not, produce that deed [125].
The request for evidence of the registration of the Rick Hart Lease was also found by the trial judge to be a reasonable request [93]. The appellant contends that it was not reasonable to make the requests for the deed of affirmation or evidence of the registration of the Rick Hart Lease given the alternative method of securing the respondents' position. However, that alternative method was not suggested at any relevant time, and was not suggested at all during the course of the trial. The suggestion was only raised once the appeal was commenced.
The fact that the appellant has now been able to proffer an alternative method of preserving the respondents' position, does not alter the fact that a request was made for evidence of registration of the Rick Hart Lease, the fact that the appellant agreed to provide such evidence, and that it was reasonable for the respondents to make the request for the reasons given by the trial judge. Nor does it alter the fact that a request was made for a deed of affirmation in respect of the Avanti Lease, which was also a

reasonable request for the reasons given by the trial judge. The appeal in these respects should be dismissed.

Otherwise, I agree with the reasons of Martin CJ.
The appeal must be dismissed.
MURPHY JA: I agree with Martin CJ.