Seguin & Anor v Anglican Church Property Trust Diocese of Sydney (No 1)

[2004] NSWADT 146

CITATION:	Seguin & Anor v Anglican Church Property Trust Diocese of Sydney (No 1) [2004] NSWADT 146
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS Margaret Seguin and Jean Paul Seguin RESPONDENT Anglican Church Property Trust Diocese of Sydney
FILE NUMBER:	045020
HEARING DATES:	15/06/2004
SUBMISSIONS CLOSED:	06/15/2004
DATE OF DECISION:	07/21/2004
BEFORE:	Chesterman M - ADCJ (Deputy President); Fairweather R - Non Judicial Member; Tyler T - Non Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anglican Church of Australia Trust Property Act 1917 Church Administration Ordinance 1990 Real Property Act 1900 Retail and Commercial Leases Act 1995 (SA) Vesting of Land Ordinance 1999
CASES CITED:	Freetel Communications Pty Ltd v In Eop Chung [2003] NSWADT 169 Jenkinson v Young [2004] SADC 30 Manly Council v Malouf [2003] NSWADTAP 12 Malouf t/a Fusion Point v Manly Council [2004] NSWSC 24
REPRESENTATION:	APPLICANTS C Ronalds, barrister RESPONDENT G Moore, barrister
ORDERS:	1. This application by the Respondent is dismissed; 2. Costs are reserved; 3. Matter set down for further directions on 29 July 2004 at 12:30pm.

Introduction

1 In these reasons, we deal with the question whether the Tribunal has jurisdiction to entertain the present proceedings.

2 In these proceedings, the Applicants, Margaret Seguin and Jean Paul Seguin, claim various forms of relief pursuant to the Retail Leases Act 1994 (‘the RL Act’) against the Respondent, the Anglican Church Property Trust Diocese of Sydney. They rely on an undated document (with an accompanying Schedule) headed ‘Licence Agreement for the use of an Anglican Hall or Rooms (Excluding Church Building)’ (hereafter ‘the Licence Agreement’). This Agreement bears their signatures in the capacity of ‘the ‘Licensee’ and the signatures of two individuals designated as the Churchwardens of St Aidans Anglican Church, Annandale (hereafter ‘the Churchwardens’).

3 The Licence Agreement stated in clause 2(1) that the Churchwardens granted to the Licensee, and the Licensee accepted from the Churchwardens, a ‘licence to enter and use’ premises described as St Aidans Annandale Church Hall, Johnston Street, Annandale (‘the Hall’) during the period between 1 November 2001 and 31 October 2003. The times within which the Licensee could enter and use the Hall were expressed to be limited as follows: ‘any hour Monday to Saturday inclusive but not outside the hours of 12 noon to 6.00 p.m. on any Sunday’. The Agreement stipulated that the Licensee could only use the Hall for a permitted use, described as ‘sale of antiques’. The annual licence fee payable was $20,000.

4 Between 15 May 1998 and 14 May 2000, the Applicants had conducted their antique shop business in the Hall under a lease granted to them by the then churchwardens of St Aidans Church. The annual rent under this lease was $22,100. They had not exercised an option to renew the lease, but had remained in possession of the Hall and had sought a new lease. The Licence Agreement was offered to and accepted by them in lieu of a new lease. After it was signed, various matters of dispute arose between the parties, prompting the Respondent to decline to grant any further licence or lease to the Applicants upon the expiry of the Licence Agreement.

5 On 26 February 2004, the Applicants instituted the present proceedings in the Tribunal. The forms of relief that they seek, set out in an Amended Application filed on 16 April 2004, include orders pursuant to s 72(1)(f) of the RL Act that ‘the Licence Agreement commencing 1 November 2001 be declared to be a retail shop lease’ and that the expiry date of this retail shop lease be declared to be 31 October 2006.

6 The ground on which the Applicants maintain that the retail shop lease created by the Licence Agreement has a term of five years is that, irrespective of the terms of the Agreement, a retail shop lease has a minimum term of five years under s 16(1) of this Act, unless a certificate has been given under s 16(3). It is common ground that no such certificate was given.

7 In these reasons, we set out our decision on an application by the Respondent, heard by us on 15 June 2004, for the proceedings to be dismissed for want of jurisdiction. The basis of this application is the Respondent’s contention that the Licence Agreement did not in fact create a retail shop lease between it and the Applicants. It is common ground that if no retail shop lease at all was created, the Tribunal would lack jurisdiction to grant any of the relief sought by the Applicants.

8 A further preliminary matter in these proceedings has arisen for decision. On 6 July 2004, we heard an application by the Respondent for urgent interim relief against steps taken by the Applicants to prevent it using any part of the Hall during the specified hours on Sundays. We granted the relief sought at the conclusion of the hearing, indicating that we would publish our reasons subsequently. Those reasons are being published simultaneously with the present decision, as Seguin & Anor v Anglican Church Property Trust Diocese of Sydney (No 2).

The grounds of the Respondent’s objection to jurisdiction

9 Under s 3 of the RL Act, a ‘retail shop lease’ is defined as follows:-

retail shop lease or lease means any agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop:

(a) whether or not the right is a right of exclusive occupation, and

(b) whether the agreement is express or implied, and

(c) whether the agreement is oral or in writing, or partly oral and partly in writing.

10 Mr Moore, counsel for the Respondent, did not dispute that the Licence Agreement conferred upon the Applicants a ‘right of occupation’, though not within the periods each Sunday (midnight to noon and 6 p.m. to midnight) during which they were expressly excluded from occupation. He also did not dispute that the permitted use expressed in this Agreement, namely, ‘sale of antiques’, fell within the list of retail shop businesses set out in Schedule 1 of the RL Act, with the result that ‘the purpose of the use of the premises’ was that of a ‘retail shop’.

11 Mr Moore maintained, however, that on three separate grounds the Licence Agreement should be held not to have created a ‘retail shop lease’, within the meaning of the RL Act, between the Respondent as lessor and the Applicants as lessee, and that for this reason the Tribunal lacked jurisdiction.

12 The first of these was that, by virtue of various legislative provisions relating to the powers of churchwardens of Anglican churches to grant rights of occupation of church property, coupled with various clauses of the Licence Agreement, the Agreement did not, as a matter of construction, create a lease between the parties within the meaning of the RL Act.

13 The second ground was that by virtue of these same legislative provisions, the Churchwardens had no power or authority to grant a lease falling within this Act over the Hall or indeed over any other church property.

14 The third ground was based on the fact that the Respondent was not expressed to be a party to the Licence Agreement. This Agreement was instead made between the Applicants and the Churchwardens. Any relief arising under the jurisdiction conferred by the RL Act on the Tribunal could not, Mr Moore argued, be granted against a person who was not a party to the retail shop lease alleged to have been created.

15 In her written submissions, Ms Ronalds, counsel for the Applicants, usefully labelled these three grounds as, respectively, ‘the construction argument’, ‘the power or ultra vires argument’ and ‘the privity argument’. We will adopt these labels.

The legislative provisions concerning Church of England property

16 Before examining in turn these three grounds of the application, we will set out as far as necessary the legislative provisions regarding church property that were drawn to our attention.

17 The Respondent and five other regional property trust dioceses within New South Wales, were incorporated under the Anglican Church of Australia Trust Property Act 1917 (‘the ACATP Act’) as ‘corporate trustees’. Section 19 of that Act provides that any ‘church trust property’ may become vested in the corporate trustees of the relevant diocese.

18 ‘Church trust property’ is defined in s 4 as including

… all or any part of any real and personal property which may for the time being be subject to any trust… for or for the use, benefit, or purposes of the Church of England in any diocese…

19 In the same section, ‘Church of England’ is defined to mean the Church of England in Australia.

20 Under s 24 of the ACATP Act, the synod of a diocese for which any church trust property is held may make provision by ordinance for the management and user of such property.

21 Section 26(1) of this Act relevantly provides as follows:-

26 Synod may direct sales or other dealings

(1) It shall be lawful for the synod of the diocese for which any church trust property is for the time being held if it shall appear to such synod expedient by reason of circumstances subsequent to the creation of the trusts of such property by ordinance to direct that such property be sold, exchanged, mortgaged, or let on mining, building, occupation, or other leases, or otherwise dealt with in manner provided by such ordinance,…

22 Section 26A is stated in subsection (1) to apply to the Diocese of Sydney. Subsection (2) is as follows:-

(2) The synod of a diocese to which this section applies may by ordinance:

(a) direct that, upon specified real property becoming church trust property held for the diocese, it may be mortgaged, let on mining, building, occupation or other leases or otherwise dealt with as specified in the ordinance, and

(b) provide for the application of the personal property arising from any such mortgage, letting or other dealing.

23 Section 29 of the ACTAP Act states as follows:-

29 Protection of purchasers etc

No purchaser, mortgagee, lessee, or other person, or the Registrar-General, upon any sale, exchange, mortgage, lease, or other dealing purporting to be made under the powers granted by or under this Act, shall be concerned to see or inquire into the necessity or propriety thereof, or the mode of exercising the same nor be affected by notice that the exercise of the power is unauthorised, irregular, or improper, nor be concerned to see to the application or disposition of any purchase, mortgage, or other money or rent paid by him.

24 Section 30 is as follows:-

30 Discharge for purchase moneys etc

The moneys (if any) arising from any sale, exchange, mortgage, lease, or other dealing purporting to be made under the powers granted by or under this Act shall be paid to the trustee or trustees in whom the property, the subject matter of such sale, exchange, mortgage, lease, or other dealing immediately theretofore vested, or to such other person or persons as the ordinance (if any) directing such sale, exchange, mortgage, lease, or other dealing may provide. And the receipt of the said trustee or trustees, or other person or persons, as the case may be, shall be an effectual discharge therefor.

25 On or about 17 January 2000, under Schedules 9, 10 and 11 of the Vesting of Land Ordinance 1999, the Respondent became the registered proprietor of the land on which the Hall and St Aidans Church are situated. Previously, this land had been held by private trustees on trust for the Church of England in Australia. Their identity was not disclosed in the lease granted by the then churchwardens to the Applicants in May 1998.

26 Under s 20 of the Church Administration Ordinance 1990 (‘the Ordinance’), which was ordained by the Synod of the Diocese of Sydney, the functions of churchwardens of a church within the Diocese are defined to include:-

(a) to have the charge, control and administration of all money and other property of the church (except money or other property excluded from that charge and administration by this Ordinance or the trusts under which it is held);

27 Section 20A of the Ordinance was inserted in 2000. It provides as follows:-

20A. Granting of licences to use church property

Subject to clause 18 of this Ordinance, part 3 of the Church Grounds & Buildings Ordinance 1990 and the Use of Church Property Ordinance 1995, the churchwardens many grant a licence to permit a person or organisation ("licensee") to use real property of the church for purposes not connected with the church if-

(a) the use of the property by the licensee is not prohibited by law or by the trusts on which the property is held, and

(b) the terms upon which the licensee is to be permitted to use the property are documented in a form last approved by the Property Trust, and

(c) the period during which the licensee is permitted to use the property does not exceed 5 years, and

(d) the amount payable by or on behalf of the licensee for the licence is not more than $20,000 per annum, or such other amount as may be determined by the Standing Committee by resolution from time to time, and

(e) the granting of the licence has been approved in writing by the archdeacon of the region in which the church is situated, and the majority of the parish council of the parish.

28 Nothing in the three provisions listed in the opening words of this section affects the matters to be determined in this application.

The ‘construction argument’ put by the Respondent

29 For the purposes of the ‘construction argument’, the most important of the provisions set out above was s 20A of the Ordinance. Mr Moore submitted that the important effects of this section were, first, to deny to the Churchwardens any delegated power to lease the Hall and, secondly, to require that any licence to use the Hall for purposes not connected with the church must comply with the conditions laid down in sub-paragraphs (a) – (e) of the section. This was in marked contrast to the situation in May 1998 when the then churchwardens could and did grant a lease to the Applicants.

30 The existence of these limitations on the powers of the Churchwardens in November 2001 constituted compelling grounds, he said, for concluding that, as a matter of construction, the Licence Agreement did not create a retail shop lease falling within the RL Act. He referred in particular to the requirement in sub-paragraph (b) of s 20A that ‘the terms upon which the licensee is to be permitted to use the property are documented in a form last approved by the Property Trust’. If the Licence Agreement were to be treated as governed by the RL Act, this requirement would be infringed because one of the effects of the Act is to incorporate, by way of overriding provision, a number of terms and conditions into any agreement governed by it.

31 In Mr Moore’s submission, a further reason why the limitations imposed by s 20A on the powers of the Churchwardens should be taken into account in interpreting the Licence Agreement was that the annual licence fee was only $20,000. This was less than the annual rent of $22,100 paid by the Applicants under the earlier lease of the Hall, but was in conformity with the limit of $20,000 stipulated in 20A(d). This reduction in the amount to be paid by the Applicants showed that the parties to the Agreement must have intended that it should operate within the requirements of s 20A.

32 In response to a question from the Tribunal, Mr Moore indicated that his line of argument effectively embraced the proposition that, to the extent that a conflict existed between s 20A of the Ordinance, limiting the powers of churchwardens in granting licences, and the those provisions of the RL Act that enhanced the rights of licences so granted, the Ordinance should prevail. It should not be construed as yielding to the RL Act.

33 In further support of the ‘construction argument’, Mr Moore relied on the fact that the Licence Agreement, both in its heading and throughout its provisions, used the words ‘Licence’ and ‘Licensee’, not ‘lease’ or ‘lessee’.

34 He relied also on the wording of clauses 2(1), 3, 9(c) and 18 of this Agreement and Item 6 of the Schedule to it.

35 These clauses provided as follows:-

2. (1) The Churchwardens grant to the Licensee and the Licensee accepts from the Churchwardens a licence to enter and use the Hall and the Services [defined in clause 1(1) as designated tearooms, washrooms, toilets etc] from the time specified in Item 6(a) to the time specified in Item 6(b) on each day specified in Item 6(c) during the Licence Term on the terms set out in this agreement.

3. The Licensee has a personal right of use of the Hall, the Services and the Access Way [defined in clause 1(1) as a designated pathway granting access to the Hall and the Services] on the terms specified in this agreement and has no interest in the Property. The legal right to possession and control over the Hall, the Services and the Access Way remains vested in the Churchwardens and ACPT [i.e., the Respondent] throughout the Licence Term.

9. (c) The Licensee will remove from the Hall any property belonging to the Licensee leaving the Hall clear and available for use by other persons on days or times when the Hall is not permitted to be used by the Licensee;…

18. This agreement contains the entire agreement between the parties and will not be amended or supplemented except in writing signed by each of the parties.

36 Item 6 of the Schedule set out, not entirely clearly, a requirement already mentioned, namely, that the times within which the Licensee could enter and use the Hall were limited as follows: ‘any hour Monday to Saturday inclusive but not outside the hours of 12 noon to 6.00 p.m. on any Sunday’.

37 These features of the Licence Agreement provided, in Mr Moore’s submission, further support for the conclusion that, as a matter of construction, the licence created by the Agreement could not be a retail shop lease.

38 Such a conclusion was incompatible, he said, with (a) the restriction of the Applicants’ right to that of ‘personal use’ of the Hall, coupled with the denial to them of any interest in the property and the reservation of the legal right to possession and control to the Churchwardens and the Respondent (clause 3); (b) the interruption of this right of personal use each Sunday, imposing an obligation on the Appellants to remove their property from the Hall, leaving it clear for use by other people (clauses, 2(1), 9(c); Schedule, Item 6); and (c) the stipulation that the Licence Agreement constituted the entire agreement between the parties (clause 18).

39 Mr Moore referred us to the decision of this Tribunal in Freetel Communications Pty Ltd v In Eop Chung [2003] NSWADT 169. It was held here that an agreement whereby the Respondent lessee of premises, in which she operated a retail shop, permitted the Applicant, who owned a Vodaphone dealership, to carry on business within an unmarked area within of the shop was not a retail shop lease because this area did not constitute ‘premises’ under s 3 of the RL Act. Having so held, Mr Donald commented as follows, at [37]:-

However, if I were to be incorrect in that regard I would acknowledge that the agreement itself would otherwise appear sufficient to fall within the definition of ‘lease’ as defined in section 3 because it is a right of occupation and it need not be exclusive occupation as specified in the definition.

40 A further reason why the Applicant failed in that case to obtain the benefit of the provision in s 16(1) of the RL Act for a minimum term of five years was that this would have been inconsistent with the head lease of the premises that had been granted to the Respondent. Section 16(5) states that in such a case the operation of s 16(1) is curtailed to the extent necessary to remove the inconsistency. Mr Moore submitted that, by analogy, the limits imposed by s 20A of the Ordinance on the powers of the Churchwardens prevented s 16(1) from operating according to its terms in the present case.

The Applicants’ submissions on the ‘construction argument’

41 The chief propositions put by Ms Ronalds in opposition to the ‘construction argument’ were (a) that on account of the rights that the Licence Agreement conferred on the Applicants, this Agreement clearly fell within the definition of a retail shop lease in s 3 of the RL Act (this is reproduced at [9] above) and (b) that neither any limitation on the powers of the Churchwardens such as s 20A of the Ordinance imposed nor any presumed intention of the parties as gleaned from the terms of the Agreement could affect this outcome.

42 With reference to the terminology used in the Licence Agreement, Ms Ronalds drew our attention to Manly Council v Malouf [2003] NSWADTAP 12. That decision of an Appeal Panel of this Tribunal was reversed by the Supreme Court: Malouf t/a Fusion Point v Manly Council [2004] NSWSC 24. The issue to be determined was whether a designated part of a footpath, adjoining a restaurant and used by the restaurant owner to serve customers, constituted ‘premises’ within the definition of a retail shop lease in s 3. The principle that Ms Ronalds sought to extract from the case was that an agreement purporting to create a licence, as opposed to a lease, could fall within this definition.

43 She noted, as was conceded by Mr Moore that ‘the purpose of the use of the premises’ was that of a ‘retail shop’ within the meaning of the definition in s 3, and that rights were granted to the Applicants for value, which they furnished in the form of a licence fee.

44 Mr Moore also conceded that the Licence Agreement conferred upon the Applicants a ‘right of occupation’. Ms Ronalds disputed his contention that this was not, however, a right of occupation such as the definition contemplated, because for significant periods of time each Sunday the Applicants were expressly excluded from occupation and required to remove their property from the premises.

45 Ms Ronalds relied here on the statement in s 3 that an agreement granting a right of occupation may fall within the definition ‘(a) whether or not the right is a right of exclusive occupation’. This clearly indicated, she said, that agreements providing for the occupation of premises to be shared between a lessee or licensee and a lessor, licensor or other person could constitute retail shop leases even though the sharing involved an arrangement whereby for stipulated periods of time the lessee or licensee was required to surrender occupation of the premises.

46 Ms Ronalds noted that none of the grounds of exclusion from the RL Act set out in s 5 or s 6 was applicable. She drew our attention particularly to the fact that while under s 6(1)(e) ‘leases’ of any specified ‘class or description’ may be exempted by regulation from the operation of the Act, no regulation had been prescribed to exclude licences granted by churchwardens under s 20A of the Ordinance.

47 Since, she submitted, the Licence Agreement exhibited the necessary features to bring it within the definition of a retail shop lease in s 3, the stated intention of the parties, as expressed in clause 18, that the Agreement should ‘contain the entire agreement’ between them was overridden by the Act. This intention necessarily gave way to any contrary provisions of the RL Act, such as the stipulation in s 16(1) for a minimum term of five years. This followed from the terms of s 7 of the Act:-

7 This Act overrides leases

This Act operates despite the provisions of a lease. A provision of a lease is void to the extent that the provision is inconsistent with a provision of this Act. A provision of any agreement or arrangement between the parties to a lease is void to the extent that the provision would be void if it were in the lease.

48 Ms Ronalds’ submission contested Mr Moore’s claim that the Licence Agreement did not fall within the RL Act because, properly construed, it showed that the parties did not intend this to occur. This claim, she said, was based on a misconception of the terms and effect of the Act. On account of s 7, it was not open for parties to a lease or licence to decide between opting into or out of the regime established by the Act. If the transaction into which they entered satisfied the requirements of the definition of a retail shop lease, and was not excluded from the Act’s operation under s 5 or s 6, it would be irrelevant that they did not intend the Act to apply to it.

49 In this connection, Ms Ronalds referred to a passage in the speech of the Minister for Small Business and for Regional Development in the Second Reading of the Retail Leases Bill (Hansard, Legislative Assembly, 20 April 1994. The Minister said that a purpose of the Bill was to cover retail leasing transactions in all contexts, in order to put an end to ‘bad leasing behaviour’.

50 Ms Ronalds also disputed Mr Moore’s contention that s 20A of the Ordinance should be held to override the operation of the RL Act, to the extent of any inconsistency between them. This was incorrect, she said, simply because the Ordinance was delegated legislation, applying to the Diocese of Sydney only, whereas the RL Act was a statute of general application. Furthermore, even if it could be established that conflicts between this Act and the ACATP Act should, as a matter of principle, be resolved in favour of the latter, that would be insufficient to sustain the Respondent’s argument. The reason was that the terms and effect of s 20A of the Ordinance were not in any sense mandated by the provisions of the ACATP Act under which it was authorised, namely s 26 and s 26A. There was in fact no conflict between these two provisions and the RL Act.

51 Ms Ronalds pointed out also that if it had been intended that licences granted under s 20A should be exempt from the RL Act’s operation, this result could have been achieved simply by a regulation under s 6(1)(e). No such regulation had been promulgated.

52 She argued finally that there was in fact no necessary clash between s 20A and the requirements of the RL Act. Section 20A had been inserted into the Ordinance in 2000, some six years after the enactment of the RL Act. It may well have been intended that licences granted pursuant to s 20A should fall within the ambit of the RL Act, if the other necessary conditions were fulfilled. It was not to be assumed that the opposite was intended.

53 In our judgment, the arguments put on behalf of the Applicants must be accepted. We would add only the following observations.

54 There is only one issue of significant doubt in determining whether the Licence Agreement, viewed in isolation, falls within the definition of a retail shop lease in s 3 of the RL Act. This is whether the effect of the phrase ‘whether or not the right is a right of exclusive occupation’ in the definition is to bring within it the situation of a lessee or licensee who regularly surrenders occupation for a short period to the lessor.

55 The observations of the Tribunal, quoted above at [39], in Freetel Communications Pty Ltd v In Eop Chung [2003] NSWADT 169 do not assist greatly in resolving this issue. In Jenkinson v Young [2004] SADC 30, Judge Herriman, in the District Court of South Australia, held that a joint venture agreement providing for shared occupation of an antique shop by the lessor and the lessee fell within the definition of a retail shop lease in the Retail and Commercial Leases Act 1995 (SA). This definition is in similar terms to the definition in the RL Act and contains the phrase ‘whether or not the right is a right of exclusive occupation’. In that case, again, the specific issue now confronting us did not arise for determination.

56 In our judgment, what might be called the right of interrupted occupation conferred on the Applicants by the Licence Agreement is one form of non-exclusive occupation that the phrase just quoted is intended to cover. It falls within the natural meaning of the phrase. Moreover, the policy of the RL Act could, we think, be averted too easily by commercial landlords if, solely through the device of reserving a right periodically to re-enter the premises for a short period of time, they could claim that a lease or licence granted by them did not fall within the Act.

57 As to the arguments of Mr Moore stemming from s 20A of the Ordinance, our conclusions, more or less in line with the arguments put by Ms Ronalds, are (a) that the existence of this provision could not be sufficient of itself to require that the Licence Agreement must be interpreted in some manner so as to take it outside the definition of a retail shop lease and (b) that there is no basis for thinking that the RL Act should be interpreted as operating subject to the Ordinance. The latter proposition provides sufficient grounds, among other things, for rejecting Mr Moore’s argument based on a suggested analogy with s 16(5) of this Act (see [40] above).

58 For these reasons, we reject the ‘construction argument’ put forward by the Respondent.

The ‘power or ultra vires argument’

59 The gist of this argument by the Respondent was that, by virtue of ss 26 and 26A of the ACATP Act and s 20A of the Ordinance, the Churchwardens had no power or authority to grant a lease of the Hall, or to grant a licence to occupy it that did not comply with the restrictions set out in s 20A. Since a licence that fell within the RL Act would, by virtue of the Act’s overriding provisions, include terms that caused it to contravene these restrictions, the granting of such a licence would be outside the scope of the authority conferred by the Ordinance on the Churchwardens.

60 In putting forward this argument, Mr Moore acknowledged that nothing in the legislation prevented the Respondent itself from granting a lease or licence that fell within the RL Act. The restrictions imposed by the Ordinance affected only the powers of churchwardens, in their capacity as agents of the Respondent in dealing with church property.

61 The evidence before us included a letter dated 7 December 2000 from Kells the Lawyers, who were the Respondent’s solicitors, to the Minister at St Aidans Church, explaining the limits imposed by s 20A of the Ordinance on the Churchwardens’ powers to deal with church property. Mr Moore submitted that this letter must have come to the notice of the Applicants before they signed the Licence Agreement. They must accordingly have realised that the granting of a licence that transgressed these limits was beyond the powers of the Churchwardens.

62 Ms Ronalds submitted that s 29 of the ACTAP Act (reproduced at [23] above) provided a complete answer to this line of argument. It precluded the Respondent from relying on any alleged deficiency in the authority of the Churchwardens, in order to assert that it was not bound by the terms of the Licence Agreement as modified by the provisions of the RL Act. Ms Ronalds referred also to s 30 of the ACTAP Act (see [24] above).

63 Her submission regarding the letter from Kells to the Churchwardens was that there was no evidence to show that it came to the notice of the Appellants before they signed the Licence Agreement.

64 She relied also on the proposition (see [52] above) that in any event the powers conferred by s 20A on the Churchwardens extended to the granting of licences that fell within the RL Act. If this were correct, there was no defect in their authority to enter into the License Agreement on the Respondent’s behalf.

65 In reply, Mr Moore contended that licences did not fall within the phrase ‘any sale, exchange, mortgage, lease, or other dealing’ in s 29. This phrase, he claimed, included only dealings – such as those in the first four categories mentioned – which created or disposed of interests in land that were registrable under the Real Property Act 1900. This interpretation was, he said, supported by the use of the phrase ‘purchaser, mortgagee, lessee, or other person, or the Registrar-General’ in the opening words of the section. By contrast, the phrase ‘sold, exchanged, mortgaged, or let on mining, building, occupation, or other leases, or otherwise dealt with’ in s 26 embraced a wider range of dealings, including licences, because it was expressed to relate to ‘church trust property’, which in s 4 was defined to include personal as well as real property.

66 The response of Ms Ronalds to this submission by Mr Moore was as follows. First, there was no basis whatsoever for attributing different meanings to the term ‘dealing’ in s 26 and s 29. Secondly, nothing in the language of the ACTAP Act gave grounds for restricting the term as used in s 29 to dealings with registrable interests in land. Amongst other things, this would render the section applicable to dealings with registered land but not to dealings with land subject to old system title. Thirdly, the meaning of the term ‘dealing’ in s 26 could not be restricted in this way, because (a) this was inconsistent with the inclusion of personal property within the definition of ‘church trust property’ in s 4 and (b) it would mean indeed that the Synod’s ordainment of s 20A of the Ordinance was ultra vires. It followed from these propositions that in both s 26 and s 29 the term must have a meaning broad enough to include a licence to occupy church property such as the Churchwardens granted to the Applicants.

67 Our conclusion, once again, is that the arguments for the Applicants prevail. We agree with Ms Ronalds that no basis exists for limiting the meaning of ‘dealing’ in s 29 to one involving a registrable interest in land while recognising that in s 26 it must cover all types of dealing with real or personal property. We cannot treat the Applicants as having been on notice of any defect in the authority of the Churchwardens before they signed the Licence Agreement, because we have no evidence on which to base a finding that they then knew the terms of the letter written by Kells or were in any other way made aware of the limits on the scope of this authority. We do not need to determine whether, if they had such notice, this would have precluded them from relying on s 29 of the ACTAP Act.

68 For these reasons, we reject the ‘power or ultra vires argument’ advanced by the Respondent.

The ‘privity argument’

69 We can deal briefly with this third argument put by the Respondent. Its starting point is the fact that the Respondent was not expressed to be a party to the Licence Agreement. This Agreement was instead made between the Applicants and the Churchwardens. Mr Moore argued that, for this reason, any relief arising under the jurisdiction conferred by the RL Act on the Tribunal could not be granted against the Respondent.

70 We consider, however, that the Agreement sufficiently showed on its face that the Churchwardens did not contract with the Applicants as principals. As was conceded by the Respondent, the definition of ‘ACTAP’ in clause 1 implicitly stated that it was the registered proprietor of the land on which the Hall was situated. Clause 3 (see [35] above) stated that ‘the legal right to possession and control over the Hall… remains vested in the Churchwardens and ACPT [i.e., the Respondent]’. It is significant also that the Churchwardens did not sign the Agreement as private individuals but expressly in the capacity of churchwardens.

71 There was therefore, we think, sufficient evidence to show that the Respondent was a disclosed principal, for which the Churchwardens executed the Licence Agreement solely as agents.

72 If we are wrong in so holding, we would accept Ms Ronalds’ alternative submission that (a) the Respondent was an undisclosed principal and (b) that in a letter dated 6 February 2004 to the First Applicant it acknowledged both its ownership of the property on which the Hall stands and the status of the Churchwardens as its agents in relation to dealings with the property.

73 The significant passage this letter is as follows:-

The Property Trust is the owner of the premises in question and arranged a meeting yesterday with the minister and churchwardens at which they were able to expand on the history of the matter, detail a number of current issues and outline their plans for the future.

At this stage, the Property Trust regards the matter as one between yourself and the churchwardens of St Aidan’s Church, Annandale. However, the Property Trust intends to keep informed on progress and closely monitor developments.

74 We do not accept Ms Ronalds’ submission that this letter evidenced ratification of the Licence Agreement by the Respondent. Instead, it left open an opportunity for the Respondent to argue, as it has done in this application, that the Churchwardens lacked authority to grant a licence falling within the RL Act. But the terms of the letter, read in conjunction with the passages in the Agreement referred to above at [70], are inconsistent with any assertion by the Respondent that the Churchwardens did not act as its agents in purporting to grant a licence to occupy premises that were situated on its property. In this way and to this extent, the Respondent acknowledged its status as a principal.

75 Ms Ronalds further submitted that, if the Tribunal could not grant the relief claimed by the Applicants unless the Churchwardens were joined as additional parties to the proceedings, this could be attended to in due course. This was not, she said, an issue on which the Tribunal’s jurisdiction depended.

76 We agree with this submission and, as already indicated, we consider that the Respondent was a party, in the guise of a sufficiently disclosed or an undisclosed principal, to the Licence Agreement. The ‘privity argument’ therefore fails.

The orders to be made

77 Since we have rejected all three lines of argument raised by the Respondent, we dismiss its application to have these proceedings struck out for want of jurisdiction.

78 The Applicants submitted that they should have their costs of this application. The resolution of the arguments put to us has not, however, been straightforward. Having regard to the requirement of ‘special circumstances’ in the statutory provision governing awards of costs in this jurisdiction (see Administrative Decisions Tribunal Act 1997, s 88), we consider that costs should be reserved.

79 The matter is set down for further directions on 29 July 2004 at 12:30pm.