The Returned & Services League of Australia WA Branch Incorporated v Vietnam Veterans and Veterans Motorcycle Club WA Chapter (Inc) - [2025] WASC 64

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   THE RETURNED & SERVICES LEAGUE OF AUSTRALIA WA BRANCH INCORPORATED -v- VIETNAM VETERANS AND VETERANS MOTORCYCLE CLUB WA CHAPTER (INC) [2025] WASC 64
CORAM:   MUSIKANTH J
HEARD:   20 - 22 JANUARY 2025
DELIVERED          :   6 MARCH 2025
FILE NO/S:   CIV 1458 of 2024
BETWEEN:   THE RETURNED & SERVICES LEAGUE OF AUSTRALIA WA BRANCH INCORPORATED
Plaintiff
AND
VIETNAM VETERANS AND VETERANS MOTORCYCLE CLUB WA CHAPTER (INC)
Defendant

FILE NO/S: CIV 1063 of 2025
BETWEEN: THE RETURNED & SERVICES LEAGUE OF AUSTRALIA WA BRANCH INCORPORATED
Plaintiff
AND
VIETNAM VETERANS AND VETERANS MOTORCYCLE CLUB WA CHAPTER (INC)
Defendant

Catchwords:

TORT - Trespass to land - Defence of lawful authority - Where original written agreement not in evidence - Whether lease agreement - Whether tenancy or licence - Whether right of occupation terminated - Turns on own facts

EQUITY - Doctrine of part performance - Turns on own facts

EQUITY - Equitable estoppel - Estoppel by encouragement - Turns on own facts

EQUITY - Bars to equitable relief - Unclean hands - Removal of personal property following termination - Whether conduct 'wanting in good faith' - Whether 'immediate and necessary connection' - Turns on own facts

PRACTICE AND PROCEDURE - Applications for urgent injunctive relief - Affidavits filed with Court - Content of affidavits - Duties of parties and legal representatives - Turns on own facts

Legislation:

Property Law Act 1969 (WA)

Result:

Judgment for the plaintiff

Category: B

Representation:

CIV 1458 of 2024

Counsel:

Plaintiff	:	Mr T J Porter & Mr T P L Drok
Defendant	:	Mr S D Hicks

Solicitors:

Plaintiff	:	Bennett
Defendant	:	Lawfield Legal Practice

CIV 1063 of 2025

Counsel:

Plaintiff	:	Mr T J Porter & Mr T P L Drok
Defendant	:	Mr S D Hicks

Solicitors:

Plaintiff	:	Bennett
Defendant	:	Lawfield Legal Practice

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

Acciona Industrial Australia Pty Ltd v Kwinana WTE Project Co Pty Ltd [2022] WASC 380
Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564
Ambridge Investments Pty Ltd v Baker [2010] VSC 59
Aussie Airlines Pty Ltd v Australian Airlines Ltd [1996] FCA 813; (1996) 68 FCR 406
Awad v Australian Sales & Leasing Pty Ltd (trading as ASL Real Estate) [2018] VSC 627
AWB Ltd v Cole and Anor (No 2) [2006] FCA 913; (2006) 233 ALR 453
BA v The King [2023] HCA 14; (2023) 275 CLR 128
Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604
Ben-Pelech v Royle [2020] WASCA 168
Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 328
Caltex Properties Ltd (in liq) v Love (1997) 95 LGERA 132
Cao v Baccello Pty Ltd as Trustee for the Mondello Family Trust [2020] WASCA 82
Chan v Chan [2020] VSCA 40
Chapman v Michaelson [1909] 1 Ch 238
Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47
Copperart Pty Ltd v Bayside Developments Pty Ltd (1996) 16 WAR 396
Dering v Earl of Winchelsea (1787) 1 Cox 318; 28 ER 1184
Edenham Pty Ltd v Meares [2016] WASC 301
Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd [1999] HCA 20; (1999) 196 CLR 245
Fiona Trust & Holding Corporation v Turi Privalov [2008] EWHC 1748
Global Advanced Metals Pty Ltd v Metallurg Inc [2017] WASCA 188
Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1
Huang v 18 Woodville Holding Pty Ltd; Tao v 18 Woodville Holding Pty Ltd [2023] NSWCA 15
Hungry Jack's Pty Ltd v The Trust Company (Australia) Ltd [No 3] [2021] WASC 231
Kramer v Stone [2024] HCA 48; (2024) 99 ALJR 126
Lace v Chantler [1944] KB 368; [1944] 1 All ER 305
Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd (2008) 35 WAR 520; [2008] WASCA 23; (2008) 35 WAR 520
LL UP Pty Ltd v Kegland Distribution Pty Ltd [2024] VSC 651
Mayfair Trading Co Pty Ltd v Dreyer [1958] HCA 55; (1958) 101 CLR 428
Miller v Evans [2010] WASC 127
Pipikos v Trayans [2018] HCA 39; (2018) 265 CLR 522
Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635
Prudential Assurance Co. Ltd v London Residuary Body & Ors [1991] UKHL 10; [1992] 2 AC 386; [1992] 3 All ER 504; [1992] 3 WLR 279
Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209
Roy v O'Neill [2020] HCA 45; (2020) 272 CLR 291
Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159; (2011) 42 WAR 59
Smith v Coastivity Pty Ltd [2008] NSWSC 313
TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333
Thorby v Goldberg [1964] HCA 41; (1964) 112 CLR 597
Turner v York Motors Pty Ltd [1951] HCA 52; (1951) 85 CLR 55
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
Whitlock v Brew [1968] HCA 71; (1968) 118 CLR 445
Willmington Investments Pty Ltd v Sarich [2023] WASC 191
Wilson v Meudon Pty Ltd [2005] NSWCA 448

MUSIKANTH J:

The plaintiff (RSLWA) was established more than a century ago to support current and ex-serving Australian Defence Force personnel.
The defendant (VMC) is a motorcycle club for veterans of the Vietnam War in which Australia participated between 1962 and 1973.
RSLWA was (and remains) the registered proprietor of 68 Sylvia Street, Nollamara, Western Australia (Property).
The Property is held subject to a crown lease which requires it be used 'solely for the purpose of a "Hallsite" (R.S.L)'.
In August 1969, the Nollamara RSL Sub-Branch (Sub-Branch) was founded as a sub-branch of RSLWA. The Sub-Branch occupied a hall on the Property with the consent of RSLWA until 6 February 2024.
In 1996, some form of 'arrangement' was made for VMC to construct a building on the Property.
Not long afterwards, VMC constructed a building (Clubhouse) on a portion of the Property adjacent to the Sub-Branch's own hall. VMC then occupied and used the Clubhouse, with RSLWA's consent, for a continuous period of approximately 27 years.
On 1 February 2024, the board of RSLWA unanimously resolved to revoke the Sub-Branch's charter.
The Sub-Branch thereupon ceased to operate, and all its members were transferred to RSLWA's 'unattached list' of members.
On 6 February 2024, RSLWA notified the Sub-Branch that its charter had been revoked, took possession of the Property (including the Clubhouse), and changed the locks.
Later that same day, one of RSLWA's Board members, Mr Trent Mongan, and employees of a private security firm removed various items of personal property from the Clubhouse belonging to VMC.
On 21 March 2024, VMC removed the locks at the Clubhouse that had been placed by RSLWA and re-took possession.
Later that same day, RSLWA wrote to VMC requiring any members of VMC in occupation of the Clubhouse to leave. RSLWA also advised VMC that it did not consent to VMC accessing or occupying the Property save for the limited purpose of VMC collecting personal possessions of its members.
VMC refused to vacate the Clubhouse.
On 26 August 2024, RSLWA again wrote to VMC advising, among other things, that it required VMC to vacate the Property by 1 October 2024.
To date, VMC remains in occupation.
RSLWA contends that VMC has no entitlement to occupy the Property and is trespassing.
Accordingly, RSLWA seeks declaratory relief, together with injunctions requiring VMC to vacate the Property and restraining VMC from re-entering without RSLWA's written consent.
Conversely, VMC says it is entitled to continue using and occupying the Clubhouse.
VMC submits it enjoys those rights pursuant to a lease, or alternatively a contractual license, expiring on 31 December 2046 and seeks declaratory relief accordingly.
Alternatively, VMC says RSLWA is estopped from enforcing its rights by reason of representations allegedly made by RSLWA.
VMC also says that the Court should not, in any event, come to RSLWA's aid by reason of the 'unclean hands' doctrine.

Legal principles - trespass

To establish an action for trespass to land, there must be direct interference (either intentional or negligent) with the plaintiff's possession of the land without the plaintiff's consent or without other lawful authority.[1]
[1] Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 328, 451 [483] (Gordon J). See also BA v The King [2023] HCA 14; (2023) 275 CLR 128, 155 [69] (Gordon, Edelman, Steward and Gleeson JJ); Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1, 10 - 11 (Brennan J); Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635, 638 - 639 (Mason CJ, Brennan and Toohey JJ), 647 - 649 (per Gaudron and McHugh JJ); and TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, 339 [23] (Spigelman CJ).
VMC accepts RSLWA is the registered proprietor of the Property and that, on 21 March 2024, VMC drilled out and replaced the Clubhouse locks to obtain access to it.
It is also common ground that VMC has remained in occupation of the Clubhouse since 21 March 2024.
It is well-established that a person who enters the land of another must justify that entry by lawful authority including consent or licence of the person with the right to immediate possession.[2]
[2] Roy v O'Neill [2020] HCA 45; (2020) 272 CLR 291 [66]. See also Ben-Pelech v Royle [2020] WASCA 168 [57].

Issues

The issues I must decide are:
(1)The nature of VMC's right, if any, to occupy the Clubhouse.
(2)Whether RSLWA is estopped from purporting to terminate any such right.
(3)Assuming no estoppel operates, whether RSLWA has validly terminated any such right and, if it has, whether VMC's continued use and occupation of the Clubhouse constitutes a trespass.
(4)Whether declaratory and/or injunctive relief should in any event be refused on the basis that RSLWA has come to court with 'unclean hands'.

The agreement

Before addressing the first issue, it is convenient to say something about the document which VMC asserts is the source of its right to occupy the Clubhouse.
According to VMC, an agreement which was 'wholly in writing' gave VMC the right to occupy the Clubhouse as either lessee or alternatively as licensee. The agreement was said to have been concluded between the Sub-Branch as agent for RSLWA and VMC.
The document which VMC says reflects the agreement (Exh H) was, according to Mr Mongan, found inside the office of the manager of the Sub-Branch on 6 February 2024 when RSLWA took possession of the Property.
Exh H reads as follows:[3]

[3] Signatures redacted.

As may be seen, Exh H does not purport to be an 'agreement'. Rather, it is an undated historical narrative recording details of an agreement documented at some earlier stage by Mr Carlo Lipari as well as details of subsequent events.
Mr Lipari, who was secretary of the Sub-Branch in 1996, gave unchallenged evidence to the effect that he had prepared an agreement between the Sub-Branch and VMC, and recorded it in the 'minute books' of the Sub-Branch, in 1996.
According to Mr Lipari, Exh H was neither the agreement which he had recorded nor a document which was (or would have been) prepared by him.
Mr Keith Boxshall, president of the Sub-Branch in 1996, accepted under cross-examination that Exh H was not 'the agreement' which he earlier testified was made between the Sub-Branch and VMC.
It was only Mr John Lewis, president of VMC in 1996, who maintained that Exh H came into existence before the Clubhouse was erected.
However, Mr Lewis's evidence is inconsistent with both that of Messrs Lipari and Boxshall and the terms of Exh H itself.
In the last-mentioned respect it will be observed that Exh H also states that: (a) plans were drafted and submitted to the 'Stirling Council' for approval; (b) a building licence then issued; (c) the building was subsequently erected; and (d) an application was made by the Sub-Branch to the 'Liquor and Gaming Authority' for an extension to the liquor licence covering the new building.
There was evidence at trial to the effect that the first three events occurred between late 1996 and early 1997, and the fourth event more than three years later on 4 October 2000.
As counsel for VMC properly accepted in closing, Exh H could not have been created before the Clubhouse was erected.
It follows that I do not accept the evidence of Mr Lewis to the effect that it was.
Indeed, having particular regard to the events recorded in Exh H, I consider it more likely than not that Exh H was created several years after 1996.
The upshot of all the above is that VMC has, in my view, failed to prove that Exh H is an instrument having operative effect, let alone an agreement which is 'wholly in writing'.
Rather, Exh H is at best secondary evidence of the substance of terms which its signatories accept had been agreed, and which had previously been recorded in some earlier document by Mr Lipari.
That earlier document (Lipari Document) was not produced at trial.
According to Mr Mongan, all of RSLWA's sub-branches submitted their monthly and annual general meeting minutes to RSLWA for record keeping purposes, and this practice had been in place for over 100 years.
Mr Boxshall gave unchallenged evidence of a conversation which he had (I infer around 1996) with RSLWA's then president, Mr Laing Turner. According to Mr Boxshall, Mr Turner at the time requested that the Sub-Branch provide RSLWA with a copy any agreement between the Sub-Branch and VMC before the Sub-Branch did 'anything'.[4]
[4] ts 359.
Further, according to Mr Boxshall, RSLWA was 'shown all the paperwork, and it went to their committees, went to the [B]oard, and nobody ever knocked it back…'[5]
[5] ts 367.
Mr Mongan testified that he searched RSLWA's records to 'see if there was a decision from a meeting to award a lease between the [Sub‑Branch] and … VMC' and 'for evidence of an agreement between the [Sub-Branch] … and the VMC … which would subsequently need to be reviewed and approved by the board of [RSLWA]'.[6] Mr Mongan says he searched back 'to the early nineties … as far as we could'.[7]
[6] ts 154 - 155.
[7] ts 156.
Noting the above evidence, the nature and extent of the parties' respective discovery obligations, and the likely materiality of the Lipari Document in the context of these proceedings, I infer that the Lipari Document would have been produced at trial, by at least one of the parties, had it indeed been found amongst the records of RSLWA.
In circumstances where that did not occur, I infer that the Lipari Document has not been found despite a reasonable search.
Accordingly, I must determine the terms of any agreement relating to VMC's occupation and use of the Clubhouse having regard to secondary evidence,[8] including oral evidence from people able to recollect its terms.[9]
[8] Willmington Investments Pty Ltd v Sarich [2023] WASC 191 [18] (Acting Master MacDonald); J D Heydon, Cross on Evidence (LexisNexis: Online) [39060] and the authorities there cited.
[9] Heydon, Cross on Evidence (LexisNexis: Online) [39035].
The best secondary evidence available to determine those terms is Exh H.
There was no challenge to the authenticity of Exh H. Indeed, all three of the individuals named at the foot of the document who gave evidence at trial (Messrs Lipari, Lewis and Boxshall) effectively confirmed that they had signed it.
There was also no suggestion that the substance of any of the terms referred to in Exh H was never agreed, or that the material content of any such term was not accurately recorded in Exh H.
That said, Mr Lipari also relevantly gave evidence to the following effect:
(1)He recalled an agreement being reached with VMC in 1996 relating to VMC's proposed construction and use of a clubhouse on the Property.
(2)The agreement was reached after months of discussion.
(3)Mr Lipari wrote up the agreement himself, and recorded it in his minute books, having shown it to members of the Sub-Branch after printing around half a dozen or a dozen copies.
(4)The agreement was discussed at a meeting, voted on and agreed.
(5)Mr Lipari could not recall all the terms of the agreement.
(6)However, Mr Lipari did recall the agreement included terms to the effect that members of VMC: (a) could use the (then proposed) Clubhouse provided they were members of the Sub‑Branch; and (b) had to buy their alcohol from the Sub-Branch.
(7)Mr Lipari did not recall any discussions about what would happen when the arrangement between the Sub-Branch and VMC ended. According to Mr Lipari, 'we weren't thinking that far ahead'.[10]
(8)Before the terms of the arrangement were agreed, the proposal was discussed with RSLWA's then president, Mr Turner.
(9)Mr Turner effectively left it to the Sub-Branch to make 'whatever decision' they wished regarding the (then proposed) arrangement with VMC subject only to one stipulation; namely, that those using the Clubhouse had to be members of RSLWA via the Sub-Branch.
(10)Mr Lipari continued to keep both Mr Turner and Mr Jock Geldart, RSLWA's then secretary, 'appraised of what was going on' at monthly executive meetings of RSLWA albeit out of session.[11]
[10] ts 139.
[11] ts 142.
I have no hesitation in accepting the evidence of Mr Lipari which was, for all practical purposes, unchallenged.
Whilst neither of the terms referred to in paragraph 56(6) above appears in Exh H, I have little reason to doubt the accuracy of Mr Lipari's recollection. Indeed, there was evidence supporting an inference that the first term referenced in paragraph 56(6) above long-survived what Mr Lipari had recorded. In this regard, Mr Peter Nicholls, who only became treasurer of VMC many years later in 2015 or 2016, testified that '[t]o be a member of the VMC, we have also to be a member of the [Sub-Branch] … [t]hat was part of … the lease agreement'.[12]
[12] ts 322.
In all the circumstances, I am satisfied as to the following matters on the balance of probabilities:
(1)During 1996 an agreement was reached relating to VMC building and using a clubhouse on the Property.
(2)The agreement was reached as between the Sub-Branch and VMC.
(3)Mr Lipari recorded the agreement in the minute books of the Sub-Branch.
(4)Reflected in the document prepared by Mr Lipari, and agreed as between the Sub-Branch and VMC were:
(a)terms substantially to the effect as those set out in the fourth, fifth and sixth sentences of Exh H;
(b)a term to the effect that members of VMC could use the (then proposed) Clubhouse provided they were members of the Sub-Branch; and
(c)a term to the effect that members of VMC also had to buy their alcohol from the Sub-Branch.
(5)Whilst it is possible additional terms may also have been agreed between the Sub-Branch and VMC, it is at least equally possible they were not.
(6)The precise formulation of the agreed terms, as recorded by Mr Lipari, cannot be determined in the absence of the Lipari Document.
(7)RSLWA:
(a)consented to VMC constructing, using, and occupying a building on the Property (being the then proposed Clubhouse), in effect, on the terms recorded by Mr Lipari; and
(b)came into possession of the Lipari Document (or a copy thereof) soon after Mr Lipari prepared the agreement.

What is the nature of VMC's right(s) if any? (Issue 1)

A legal lease?

By section 33(1) of the Property Law Act 1969 (WA) (PLA), any lease required to be made in writing must be made by deed, otherwise the interest in land is void.[13]
[13] PLA s 33. There was no suggestion that any lease created was intended to be for less than 3 years (PLA s 35(2)). On the contrary, as will be seen below, VMC effectively contended that the term was an indefinite one; terminable at the election of VMC alone.
As RSLWA correctly observes, there was no suggestion a deed was ever executed to confer a lease interest to VMC.
By section 34(1)(a) of the PLA, no interest in land is capable of being created except, relevantly, by writing signed by the person creating or conveying the interest (or by that person's agent lawfully authorised in writing).
The only written evidence of any agreement relating to VMC's proposed use of any part of the Property is Exh H which does not have operative effect and cannot purport to create an interest in the Property.

It is not possible to determine if the Lipari Document satisfied the rigors of section 34 of the PLA in circumstances where the document has not been produced.
It follows that I cannot be satisfied, on the balance of probabilities, that it did.

Does the doctrine of part performance apply?

It is commonly understood that the rigors of section 34 may be overcome by the doctrine of part performance.[14]
[14] See Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd (2008) 35 WAR 520; [2008] WASCA 23; (2008) 35 WAR 520 [67] (Buss JA).
VMC did not plead reliance on the doctrine, and in its oral opening submissions informed the Court that 'part performance doesn't apply here' as 'there is writing'.[15]
[15] ts 114.
Nonetheless, counsel for VMC attempted to express reliance on the doctrine in its oral closing submissions.
The crux of VMC's submission on the doctrine was that VMC started to pay 'rent' in April 1997 and had done so 'since then'.[16]
[16] ts 448.
VMC contends the paid rent was recorded in a document introduced during Mr Lewis's testimony (Exh S).
Exh S purports to be a statement addressed to VMC with various line items including: (a) a line item dated 30 April 1997 described as 'Rent April 97' with a corresponding amount of $100; and (b) other line items collectively totalling $427 described as: key rings, kegs of beer, adjustment of sewerage charges and steam cleaning.
Mr Lewis was neither asked if he knew who issued Exh S or from whom VMC had received it.
Mr Lewis recalled seeing Exh S '[a] long time ago'.[17] He could not recall what prompted the 'Rent April 1997' payment,[18] but eventually added: 'It was rent. It would have been rent'.[19]
[17] ts 246.
[18] ts 247.
[19] ts 247.
In circumstances where VMC not only failed to plead part performance but disavowed any reliance on the doctrine in its opening submissions, it would be unreasonable to permit VMC to do so now.
However, even if VMC were to be permitted to do so, its argument could in any event not succeed for at least two reasons.
First, to establish part performance the acts of part performance must be unequivocally referable to an agreement of the kind alleged.[20]
[20] Pipikos v Trayans [2018] HCA 39; (2018) 265 CLR 522 [37] - [45] (Kiefel CJ, Bell, Gageler and Keane JJ, Nettle and Gordon JJ agreeing).
The evidence of VMC falls far short of satisfying this requirement. Whilst Exh S includes a sum of $100 for 'rent', the 'peppercorn rent' alleged to have been agreed in 1996 (referred to in Exh H) was in the form of four functions per year. Moreover, the amounts in Exh S total $527 which is inconsistent with the total value of the 'peppercorn rent' not exceeding $300 per function (also referred to in Exh H). Further, the name of the person or entity who issued Exh S does not appear on the face of Exh S.
Secondly, to establish 'part performance' it must first be shown that an agreement was reached of the same nature as that sought to be specifically enforced.[21]
[21] Pipikos v Trayans [2018] HCA 39; (2018) 265 CLR 522 [54] (Kiefel CJ, Bell, Gageler and Keane JJ, Nettle and Gordon JJ agreeing).
For reasons which will soon become apparent, I am not satisfied VMC has proved this requirement either. Consequently, the doctrine of part performance does not assist VMC.

An equitable lease?

In Cao v Baccello Pty Ltd as trustee for The Mondello Family Trust, Murphy, Beech and Vaughan JJA observed:
…Under the general law, if a court of equity would decree specific performance of an agreement to lease by requiring the execution of a formal lease at law, each party could obtain against the other all the remedies which would be available to it had a proper lease had been executed, although the agreement to lease is not thereby converted into an actual lease. The right of occupancy created by such an agreement may be described as an equitable estate or interest, under an equitable lease or an equitable tenancy...[22]
[22] Cao v Baccello Pty Ltd as Trustee for the Mondello Family Trust [2020] WASCA 82 [66].
In general, a person seeking specific performance must establish they have performed their essential or substantial obligations and are ready and willing to perform the future essential obligations as required of them under the contract.[23]
[23] Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604, 619 - 620 (Mason CJ and Dawson J).
It follows that any exercise of the court's discretion to grant specific performance is necessarily premised on there being a binding and enforceable contractual obligation.
There can be no such obligation unless the terms of the bargain, or at least its essential or critical terms, have been agreed upon.[24]
[24] Thorby v Goldberg [1964] HCA 41; (1964) 112 CLR 597, 606 (Menzies J, Owen J agreeing); Awad v Australian Sales & Leasing Pty Ltd (trading as ASL Real Estate) [2018] VSC 627 [38]; Croft, Hay and Virgona, Commercial Tenancy Law (Lexis Nexis, 5th ed, 2018) [1.5] and the cases there cited.
For the purposes of any lease, the essential terms to which the parties must agree with sufficient certainty are: the identity of the parties, the premises to be leased, the rent, and the commencement and duration of the term.[25]
[25] Copperart Pty Ltd v Bayside Developments Pty Ltd (1996) 16 WAR 396, 408 (Murray J, Franklyn J agreeing) citing Whitlock v Brew [1968] HCA 71; (1968) 118 CLR 445, 454.
RSLWA submits the agreement fails to satisfy the essential terms of a lease, primarily for want of duration of term.
No witness suggested that the Lipari Document incorporated a provision specifying the duration of VMC's proposed use and occupation of the Clubhouse, let alone a termination date.
Nonetheless, VMC effectively submits the duration of the term of its occupation is satisfied by the sixth sentence of Exh H. According to VMC, Exh H, properly understood:
(1)permits VMC to occupy the Clubhouse indefinitely; and
(2)contemplates that VMC's occupation can only be terminated if VMC itself decides to dismantle the Clubhouse and relocate elsewhere.
This submission cannot be accepted for at least the following reasons.
First, whilst the ordinary rules of contractual construction operate to determine (and give effect to) the common intention of the parties objectively ascertained, that process has little if any role to play in the context of an instrument such as Exh H which neither purports to be a contract nor evidences all of the terms of the agreement concluded several years before (as I have found).
However, even if the ordinary rules of contractual construction were applicable to Exh H, VMC's proposed construction would fly in the face of what one might objectively expect parties, acting reasonably, to have likely agreed.
That is, the grant an indefinite right of occupation to VMC without any right for the Sub-Branch (or RSLWA, as registered proprietor) to end such occupation under any circumstances whatsoever.
Secondly, there was no evidence of any discussion relating to the circumstances under which termination of VMC's right of occupation might occur. In fact, Mr Lipari gave unchallenged evidence to the effect that he did not recall any discussion about what would happen when the arrangement between the Sub-Branch and VMC ended.
It follows, in my view, that it has not been shown that the tenure, if any, granted to VMC under the 1996 agreement was of certain duration.
Accordingly, I consider that at least one of the essential requirements of a binding and enforceable lease agreement has not been established.
For at least that reason, there cannot be said to have been an equitable lease.
For completeness, I reject VMC's submission that a notice which it issued on 22 October 2024 (headed 'notice of termination of tenancy', purporting to terminate the agreement with effect from 31 December 2046)[26] provides sufficient certainty of duration to the agreement.[27]
[26] Exh I.
[27] ts 109.
Counsel for VMC described VMC's reliance on this document as a 'novel approach'; albeit an approach for which counsel could find 'no authority'.[28]
[28] ts 445.
Neither could I.
There is no basis in law to retrospectively impute a lease term into a lease agreement based on a document unilaterally generated by one party nearly thirty years later.
Counsel's submission is contrary to the well-established principle that the duration of a lease must be certain from the time it takes effect.[29]
[29] Wilson v Meudon Pty Ltd [2005] NSWCA 448 [65] (Bryson JA, Handley and Hodgson JJA agreeing); Lace v Chantler [1944] KB 368; [1944] 1 All ER 305; Prudential Assurance Co. Ltd v London Residuary Body & Ors [1991] UKHL 10; [1992] 2 AC 386; [1992] 3 All ER 504; [1992] 3 WLR 279. See also Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd [1999] HCA 20; (1999) 196 CLR 245, 281 (McHugh J).
The submission should not have been made.

Tenancy or licence?

Save in exceptional cases, the fact that an instrument grants a right of 'exclusive possession' is decisive in determining whether the grantee enjoys a tenancy as distinct from a mere licence.[30]
[30] Cf. Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209, 214 (McTiernan J), 217 - 218 (Taylor J), 220 (Menzies J), 222 (Windeyer J).
It is the legal right to possession, not the physical fact of exclusive 'possession' or occupation, that is decisive.[31] However, in some cases, the fact of exclusive possession can be indicative of such a right.[32]
[31] Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1, 223 [503] (McHugh J).
[32] Hungry Jack's Pty Ltd v The Trust Company (Australia) Ltd [No 3] [2021] WASC 231 [110] (Tottle J); Caltex Properties Ltd (in liq) v Love (1997) 95 LGERA 132, 140 (Parker J).
Although the precise formulation of the Lipari Document cannot be determined in its absence, as I have found the document contained a term substantially to the effect that VMC would have 'exclusive and unhindered' use of the (then proposed) Clubhouse.[33]
[33] See Exh H, fourth sentence.
Words substantially to the above effect are strong indicators of an intention to grant a right of exclusive possession.
Such a conclusion is further supported by other terms I have found would have been recorded in the Lipari Document including a provision contemplating payment of 'rent' (as distinct from a 'fee'), the 'rent' taking the form of paying for (and holding) a minor functions at the Clubhouse for the benefit of members of the Sub-Branch, and such functions being limited to (only) four per year.
There was also unchallenged evidence adduced at trial which supports an inference consistent with a right of exclusive possession having been granted at some earlier time.
For example, minutes of a 'special combined meeting' between VMC and the Sub-Branch held on 24 March 1997,[34] recorded that:
(1)The purpose of the meeting was 'to formulate uniform rules for both groups while preserving the individual identities'.
(2)Such rules had been agreed by the committee of each 'group'.
(3)The agreed rules included rules to the effect that:
(a)'social nights' would be held on Wednesdays, during which the 'rear doors' would be opened and members would be welcome to 'mix freely, but must respect rules of behaviour which exist within each other[']s premises';
(b)Friday night functions held by VMC would be 'by invitation only', with non-VMC members required to 'sign in'; and
(c)authorised officers of both groups reserving the right to refuse admission or service 'to any members or guests from their premises'.[35] (emphasis added)
[34] Exh PP.
[35] Exh PP, Rule 7.
Indeed, the current president of RSLWA, Mr Duncan Anderson, gave evidence that he understood no one from the Sub-Branch was allowed into the Clubhouse.
In my view, the above matters coupled with the evident purpose of the Clubhouse as a venue for members of VMC to meet, socialise and conduct their own activities, lend strong support to a conclusion that the agreement recorded in the Lipari Document reflected an intention to convey a right of exclusive possession to VMC.
In all the circumstances, I find it more likely than not that a tenancy, with exclusive possession, was intended rather than a mere licence.

Tenancy at will or periodic tenancy?

Despite having no defined duration, a tenancy at will is nonetheless conventionally classified as a form of leasehold estate.[36]
[36] Chan v Chan [2020] VSCA 40 [74] (Tate JA, Maxwell P and Forrest JJA agreeing) referring to Brendan Edgeworth et al, Sackville & Neave: Australian Property Law (LexisNexis Butterworths, 10th ed, 2016), 172 [3.19].
A tenancy at will exists whenever, by virtue of an express or implied agreement between the landowner and another person, that person is in exclusive possession of the land for an estate which is not of freehold or for a term.[37]
[37] Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23; (2008) 35 WAR 520 [199] (Le Miere AJA); Huang v 18 Woodville Holding Pty Ltd; Tao v 18 Woodville Holding Pty Ltd [2023] NSWCA 15 [46] (Meagher JA, Kirk JA and Griffiths AJA agreeing); Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47, 49 (Jordan CJ, Halse Rogers and Street JJ agreeing).
It was common ground that VMC used and occupied the Clubhouse with the consent of the landowner, RSLWA, from about 1997 to 6 Febraury 2024.[38] As I have found, RSLWA consented to such use and occupation effectively on the terms recorded in the Lipari Document which included a right of exclusive possession.
[38] Statement of agreed facts and issues filed 23 December 2024 [8].
Accordingly, I consider VMC took occupation of the Clubhouse as a tenant at will when it moved into the Clubhouse in 1997.
A tenancy at will may convert into a weekly, monthly, or periodic tenancy, depending on the intention of the parties, if payment of rent is made or measured with reference to a week, month or other period.[39]
[39] Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23 [5] (Pullin JA). Turner v York Motors Pty Ltd [1951] HCA 52; (1951) 85 CLR 55, 65 (Dixon J).
As I have found, the terms of the agreement recorded in the Lipari Document included provisions substantially to the effect that VMC would pay 'peppercorn rent' taking the form of payment for, and the holding of, four minor functions per year in the Clubhouse for the benefit of members of the Sub-Branch.
Whilst there was evidence to the effect that such functions were in fact held (at least initially), there was no evidence to support an inference that the obligation required the functions to be held at specific intervals.
It follows that I do not accept the submission of counsel for VMC to the effect that the term recorded in Exh H contemplates payment of rent on a 'quarterly' basis. In my view, all that has been established is that four functions were required to be held every year.
On one view it might be suggested that the reference to payment being made every 'year' demonstrates an intention to measure the 'peppercorn rent' annually. However, s 71 of the PLA expressly precludes a yearly tenancy being implied by payment.
In the circumstances, I consider the tenancy at will in favour of VMC did not convert into a periodic tenancy when any one or more instalments of 'peppercorn rent' were 'paid' under the agreement.

Variation?

Having said the above, VMC contended that the initial agreement was varied over time: (a) in 1998 such that the rent instead took the form of payment of 10% of utility bills; (b) in 2020 such that rent took the form of payment for maintenance on buildings and a contribution to utilities in an amount equating to $5 per VMC member per week; and (c) in 2023 such that rent took the form of paying 'one annual maintenance bill' for the Sub-Branch's building.[40]
[40] Defence [10].
Each asserted variation was said to have been subject to 'oral' agreements between Mr Lewis and agents of RSLWA. The alleged agents of RSLWA being Mr Boxshall with respect to the asserted 1998 variation; someone by the name of 'Bindi' with respect to the asserted 2020 variation; and one 'Brad Ghirardi' with respect to the asserted 2023 variation.[41]

The 1998 and 2020 asserted variations

[41] Defence particulars to [10].

Mr Boxshall was taken to an account issued to VMC for gas, waste, major fixtures and electricity charges dated 7 October 1998.[42]
[42] Exh OO.
When asked to explain why the account was sent to VMC, Mr Boxshall responded simply '[b]ecause they owed the money … [b]ecause they used electricity and gas'.[43]
[43] ts 381.
Mr Boxshall was then asked to explain 'the arrangement' and responded that 'they had their own power box. They had their own water meter, and that's Pacific Waste. The waste they put out the back of the club was picked up. And Alinta Gas, that gas line is just … it's their bills'.[44]
[44] ts 381.
Mr Boxshall gave no evidence to support an inference that he entered into any oral agreement with VMC to vary the terms of the rent, let alone that he was authorised by RSLWA to do so.
Nor did Mr Lewis (or any other witness) say anything about any conversation with someone by the name of 'Bindi'.
That said, Mr Lewis gave evidence to the effect that at some point VMC and the Sub-Branch committee, including '[p]robably' Mr Boxshall and Mr Lipari, sat down and 'changed' the rent to 10% 'of all their outgoings, that is, their light bill, phone bill, rubbish bins, everything'.[45]
[45] ts 260 - 263.
Mr Lewis was also unclear as to precisely when that asserted change occurred. However, there was evidence that, by at least 3 October 2011, the Sub‑Branch was invoicing VMC for contributions to be made towards utilities and other services associated with the use of the Clubhouse. These contributions were calculated at roughly 10% of the amount which the relevant service providers billed to the Sub-Branch.[46] The 10% appears to have been based on an 'apportionment'.[47]
[46] Exh Y.
[47] Exh Z, subject line.
There was also evidence that it was at some point also intended that VMC's 'rent days' were to 'revert' to two per year.[48] Mr Lipari had earlier explained that '[r]ent days were a way for [VMC] to show their appreciation or to pay their rent … [VMC] put on a barbecue and a few beers for all the members to come and enjoy and mix …'.[49]
[48] Exh Z.
[49] ts 139.
It is possible that payment of 10% of the Sub-Branch's utilities was intended to comprise at least part of the 'rent' owed by VMC to the Sub-Branch from some uncertain point in time after 1996. However, I am not satisfied there is an adequate evidentiary foundation to conclude there was a variation of the agreement recorded in the Lipari Document in the manner asserted by VMC; let alone to conclude that RSLWA was privy to such a variation.

The 2023 asserted variation

On 20 November 2023, Mick Cullen Construction issued an invoice to Brian Hetherington totalling $4,950 for various works described in the invoice.[50]
[50] Exh BB.
Mr Lewis testified the invoice was issued for work relating to a fence fitted around the Sub-Branch. He stated the invoice was paid for by VMC using a grant of $75,000. He also indicated '… from then on, [VMC] were going to just pick up the maintenance'.[51]
[51] ts 265 - 266.
Mr Nicholls testified that the amount was paid to Mick Cullen Construction as 'our portion of the rent … for the 12 months that would have been up before', being the 12 months from October/November 2023.[52]
[52] ts 288.
However, no evidence was led about any conversation involving anyone by the name of 'Brad Ghirardi'. Nor was any evidence given concerning any conversation between any officer of VMC and any officer of the Sub-Branch to the effect the Sub-Branch agreed to vary the rent such as to make rent payable to the Sub-Branch on an annual basis; let alone in an amount of approximately $5,000.
Even if there was such an arrangement, which I do not accept, there is no evidence to indicate RSLWA was aware of it, let alone agreed to it.

In any event, as noted earlier, s 71 of the PLA expressly precludes a yearly tenancy being implied by payment.

Is RSLWA estopped from terminating any right(s) which VMC's may have? (Issue 2)

In the event I find VMC presently has no right to occupy the Clubhouse, VMC submits RSLWA is estopped from enforcing any right to relief under the tort of trespass.
According to counsel for VMC, its estoppel argument is based on both the principles espoused in Waltons Stores (Interstate) Ltd v Maher[53] and also on a 'more ancient form' of estoppel.[54]
[53] Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387.
[54] ts 451.
Counsel for VMC suggested that the latter took the form of estoppel by encouragement.[55] According to counsel for VMC, this was a form of estoppel which operated 'differently' to the way in which estoppel operated under Waltons Stores (Interstate) Ltd v Maher.[56]
[55] This was clarified in correspondence with the Court after the trial concluded.
[56] Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387.
Counsel's latter submission is contrary to the reasons of the plurality of the High Court in Kramer v Stone;[57] handed down late last year.
[57] Kramer v Stone [2024] HCA 48; (2024) 99 ALJR 126.
In Kramer v Stone the plurality observed that the six requirements which Brennan J had set out in Waltons Stores (Interstate) Ltd v Maher had been:
formulated at a level of generality sufficient to include an equitable estoppel which arises by reason of encouragement by the making of a promise as well as an equitable estoppel which arises by reason of acquiescence.[58] (emphasis added)
[58] [36].
The plurality in Kramer v Stone went on to 'refine' the elements of an estoppel arising by reason of encouragement from a promise as follows:[59]
(1)A 'clear and unequivocal' promise made by the party estopped (the promisor) to the party who relies upon the promise (the promisee).
(2)A reasonable person in the promisor's position having expected or intended (or the promisor actually having expected or intended) that the promisee would rely upon the promise by some action, omission or course of conduct.
(3)The promisee having relied upon the promise by acting or omitting to act in the general manner that would have been expected.
(4)The consequence of the promisee's reliance being that the promisee would suffer detriment if the promise was not fulfilled, in the sense that the promisee would be left in a worse position as a consequence of reliance upon the promise, than if the promise had not been made.
[59] [36] - [40]. The six requirements which Brennan J had set out in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 may be found at 428 - 429 of that decision.
VMC's estoppel case, as pleaded, hinges on an allegation to the effect that RSLWA 'by its agent [the Sub-Branch]' made representations to VMC.[60]
[60] Defence [7].
According to VMC's pleading:
(1)The alleged representations were that:
(a)VMC could construct a building on part of the Property shown in certain building plans;
(b)VMC would have the exclusive and unhindered use of the Clubhouse for payment of a peppercorn rent;
(c)the peppercorn rent was that VMC would hold four minor functions per year, preferably on a Sunday afternoon, at a total cost not exceeding $300 per function which functions were to be held for the benefit of members of the Sub-Branch; and
(d)RSLWA would not terminate VMC's right to use the Clubhouse, and if VMC elected to leave the Property VMC could remove the Clubhouse constructed and restore the Property to 'bare earth'.
(2)The alleged representations consisted of 'a document dated 1996', and of conversations between Mr Lewis and Mr Boxshall (the latter acting on behalf of RSLWA) in around 1996.
Despite VMC's pleading, its counsel in opening confirmed that VMC's pleaded representations boiled down to an alleged representation to the effect that:
(1)RSLWA would never revoke the lease or licence (which VMC contended was granted by Exh H in its favour).
(2)The only circumstance in which the lease or licence could be ended was by VMC giving notice that it wished to disassemble the Clubhouse.
Following the close of evidence, VMC applied to amend its defence by introducing a further alleged representation to the effect that VMC 'would have the exclusive and unhindered use of a portion of the land identified in the building plans until [VMC] wished to locate to another property at some future date'.
According to VMC, the further alleged representation was made by RSWLA 'wholly in writing' and was reflected in Exh H.
After hearing the application, I indicated I would reserve my decision as whether to permit the amendment and would deliver it when delivering these reasons.
In my view, VMC's estoppel argument and its late amendment application are both devoid of merit for at least the following reasons.
First, there was no evidence to suggest that any representative of RSLWA ever said or did anything to suggest RSLWA would never terminate VMC's use of the Clubhouse.
Secondly, on no sensible reading could Exh H reasonably be understood to convey an impression either to the above effect or to the effect that VMC would have the exclusive and unhindered use of the Clubhouse until VMC decided to locate to another property (if it ever did).
Thirdly, neither Mr Lewis nor any other witness gave evidence suggesting VMC at any time laboured either under a belief that RSLWA would never terminate VMC's use of the Clubhouse, or under a belief that VMC would continue to have exclusive and unhindered use of the Clubhouse until VMC wished to relocate elsewhere.
Nor was there any evidence to support an inference that VMC ever understood Exh H to convey an impression to either effect; let alone evidence to suggest that VMC acted to its detriment accordingly.
Fourthly, the only document which was suggested to have conveyed any of the asserted representations was Exh H. However, as I have found, Exh H was generated several years after the Clubhouse was built. Further, the document was not shown to have been created by any officer of the Sub-Branch or RSLWA, let alone to have been a document which was provided by either of those entities, at any material time, to VMC.
It follows, in my view, that VMC's estoppel argument and its proposed application to amend must both fail.

Has RSLWA validly terminated any right(s) of VMC and, if yes, is VMC trespassing? (Issue 3)

It is common ground that since 21 March 2024, VMC has remained in occupation of the Property without RSLWA's consent.
In circumstances where I have found that VMC had enjoyed its right of occupation as a tenant at will, I consider RSLWA was entitled to terminate that tenancy without notice.[61] Accordingly, I find that RSLWA lawfully terminated VMC's tenancy on 6 February 2024.
[61] Cf.Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47, 49 (Jordan CJ, Halse Roger and Street JJ agreeing); Chan v Chan [2020] VSCA 40 [74] - [75] (Tate JA, Maxwell P and Forrest JA agreeing).
However, if I am wrong and VMC's right was as a tenant under a periodic tenancy, RSLWA was in any event entitled, by s 72 of the PLA, to terminate it with one month's written notice 'whether at the end of the rent period or not'.[62]
[62] PLA s 72.
In this connection, it was common ground that RSLWA sent a letter to VMC on 26 August 2024.[63]
[63] Exh G.
The letter relevantly stated that:
(1)RSLWA rejected a contention by VMC, advanced in these proceedings, to the effect that VMC occupied part of the Property pursuant to a lease.
(2)RSLWA contended that any proprietary interest of VMC in that part of the Property was either:
(a)a tenancy at will that was terminated on 6 February 2024; or
(b)a periodic tenancy that was terminable on one month's notice.
(3)RSLWA 'hereby gives VMC notice that … it is terminating the [p]eriodic [t]enancy … and … the [p]eriodic [t]enancy will end on 1 October 2024'.
(4)RSLWA required 'VMC to vacate the Property by 1 October 2024'.
Noting the contents of the letter, I find that even if there was a periodic tenancy, RSLWA validly terminated it with effect from 1 October 2024.
Hence, any right which VMC may have enjoyed to occupy and use the Clubhouse after 6 February 2024 was in any event validly terminated on 1 October 2024.
It necessarily follows that VMC is presently occupying the Clubhouse without lawful authority.
VMC is, therefore, now trespassing on the Property.

Should relief be refused because of 'unclean hands'? (Issue 4)

VMC contends the Court should refuse to grant any equitable relief to RSLWA because it does not come to court 'with clean hands'.
VMC relies upon the following propositions in support of its 'unclean hands' argument:
(1)At law, VMC was entitled to have reasonable time to remove its own property from the Clubhouse[64] but was not given that opportunity.
(2)When RSLWA took possession of the Clubhouse on 6 February 2024, it removed account books, files, building plans, flare kits, computer hard drives, computer software disks, thumb drives, cash, a cash tin, a calculator, a briefcase, and other paperwork.
(3)Whilst RSLWA returned most of the items it did not return (and 'wrongfully converted') the cash box, calculator, and 'various accounting records'.
(4)RSLWA also took five months to repay VMC $5,413.30 in cash that it had removed from the Clubhouse on 6 February 2024.
(5)RSLWA refused, or has made no offer, to repair or replace the broken briefcase removed from the Clubhouse on 6 February 2024.
(6)RSLWA refused to pay for 'drinks' taken from the Clubhouse on 6 February 2024.
(7)Despite having been given an opportunity to apologise in the witness box neither Mr Mongan nor Mr Anderson did so.
[64] Cf. Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47, 49 (Jordan CJ, Halse Roger and Street JJ agreeing); Chan v Chan [2020] VSCA 40 [74] - [75] (Tate JA, Maxwell P and Forrest JA agreeing).

Legal principles - unclean hands

In Global Advanced Metals Pty Ltd v Metallurg Inc,[65] the Court of Appeal made the following observations:[66]
(1)The maxim requiring a person to 'come into a Court of equity with clean hands' does not mean a plaintiff must be entirely blameless.
(2)The maxim is not simply invoked by establishing a 'general depravity'.
(3)The relevant conduct in question must be 'wanting in good faith'.
(4)There must be an 'immediate and necessary' connection between the conduct and the equity claimed.
(5)This means that the equitable right the court is being asked to protect or assist is 'itself to some extent brought into existence or induced by some illegal or unconscionable conduct of the plaintiff', so that protection for what the plaintiff claims involves 'protection for [the plaintiff's] own wrong'.
[65] Global Advanced Metals Pty Ltd v Metallurg Inc [2017] WASCA 188.
[66] Global Advanced Metals Pty Ltd v Metallurg Inc [2017] WASCA 188 [107] (Buss P, Murphy and Mitchell JJA).
Not all misconduct deprives an applicant of a right to seek equitable relief. The impropriety must be a depravity in a legal as well as moral sense.[67] The misconduct may also be too trivial for it to import this consequence. Therefore, the court will assess the gravity and effect of misconduct cumulatively.[68]
[67] Edenham Pty Ltd v Meares [2016] WASC 301 [79] (Le Miere J); Miller v Evans [2010] WASC 127 [84] (Hall J); Dering v Earl of Winchelsea (1787) 1 Cox 318; 28 ER 1184, 1184 - 1185.
[68] Fiona Trust & Holding Corporation v Turi Privalov [2008] EWHC 1748 [19]; LL UP Pty Ltd v Kegland Distribution Pty Ltd [2024] VSC 651 [53].
The court will consider the consequences of refusing relief and will not debar relief if doing so would conflict with other policies of equity or statute.[69]
[69] Edenham Pty Ltd v Meares [2016] WASC 301 [79] (Le Miere J).
A plaintiff may resist the defence by the plaintiff 'washing' their hands. That is, by showing that any misconduct ceased well before the suit or that it occurred by accident.[70]
[70] Miller v Evans [2010] WASC 127 [87] (Hall J).
In any event, any application of the principle remains discretionary and is impacted upon by the circumstances of each individual case.[71]

Unclean hands and declarations

[71] Edenham Pty Ltd v Meares [2016] WASC 301 [79].

RSLWA seeks a declaration that VMC has no existing right to occupy or use any part of the property.
A declaration as to the existence of a right at law is not equitable relief.[72] It follows that 'traditional equitable barriers' to equitable relief (such as the 'unclean hands' principle) do not apply to declaratory relief unless the declaration is 'ancillary to or part of' the equitable relief.[73]
[72] Chapman v Michaelson [1909] 1 Ch 238; Mayfair Trading Co Pty Ltd v Dreyer [1958] HCA 55; (1958) 101 CLR 428, 450 - 456 (Dixon CJ); Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159; (2011) 42 WAR 59 [60].
[73] Ambridge Investments Pty Ltd v Baker [2010] VSC 59 [72] - [73]; see also Heydon JD, Leeming MJ & Turner PG, Meagher, Gummow & Lehane's Equity: Doctrine & Remedies (5th ed, 2015) [19-315].
That said, there may be circumstances in which 'traditional equitable barriers' are relevant to the 'wide discretion' of whether to grant or refuse declaratory orders under the court's statutory powers.[74]
[74] Equity: Doctrine & Remedies (5th ed, 2015) [19-315].
However:
(1)the relevant discretionary considerations 'are severely limited … and … do not include the discretionary considerations traditionally thought to attend the grant or refusal of purely equitable relief';[75] and
(2)the discretion to refuse declaratory relief 'must be exercised within a framework of relevant legal principle…'.[76]
[75] Smith v Coastivity Pty Ltd [2008] NSWSC 313 [87].
[76] AWB Ltd v Cole and Anor (No 2) [2006] FCA 913; (2006) 233 ALR 453 [46].
That framework was recently carefully examined by Solomon J in Acciona Industrial Australia Pty Ltd v Kwinana WTE Project Co Pty Ltd.[77]
[77] [2022] WASC 380 [108] - [133].
For present purposes, it is sufficient to note that the discretion may be exercised in favour of a grant of declaratory relief where, as here: (a) the proceeding involves the determination of a question that is not abstract or hypothetical; (b) the answer will produce real consequences for the parties; (c) the party seeking declaratory relief has a real interest to raise the question; and (d) there is a proper contradictor.[78]
[78] Aussie Airlines Pty Ltd v Australian Airlines Ltd [1996] FCA 813; (1996) 68 FCR 406, 414; Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564, 596.
Aside from 'unclean hands', VMC does not point to any other reason why declaratory relief should not be granted in favour of RSLWA failing acceptance of VMC's lease/licence and estoppel arguments.
There is, in my view, no reason to refuse such relief in this case. There was a live issue between the parties as to whether VMC enjoyed a right of occupation, I have determined that issue in favour of RSLWA after a three-day trial, and the determination of that issue is likely to have real consequences for both parties.
It follows that I propose to grant the declaration sought by RSLWA.

Unclean hands and injunctions

RSLWA submits that if the Court exercise its power in favour of declaratory relief, the question of unclean hands 'falls away' as any injunction would be 'in aid of a declaration of right made by the court'.[79]
[79] ts 467.
With respect, I disagree. Whatever RSLWA might seek by way of primary remedy, injunctions are (and remain) purely equitable forms of relief.
As such, any 'traditional equitable barriers' may well be relevant to any exercise by the Court of its discretion to grant or refuse the injunctions which RSLWA seek.

Removal of items from Clubhouse

It was uncontentious that RSLWA did not give VMC an opportunity to remove personal property belonging to VMC from the Clubhouse on 6 February 2024 before Mr Mongan and employees of the private security firm, engaged by RSLWA, did so.
Mr Mongan gave evidence to the effect that after he entered the Property on 6 February 2024 (with security vehicle technicians and locksmiths) some six to eight individuals also arrived. The individuals included Mr Lewis (who identified himself to Mr Mongan as the president of VMC) and Mr Nicholls (who identified himself as being both a member of VMC and of the Sub-Branch).[80] Those interactions occurred in the early part of the day.[81]
[80] ts 146 - 147.
[81] Exh MM [11], Exh R [23.2].
Mr Mongan accepts he did not speak with any representative of VMC about any 'personal property items' that were in the Clubhouse[82] on 6 February 2024.
[82] ts 149.
Nor did any other witness suggest that any other representative of RSLWA contacted VMC about retrieving personal property from the Clubhouse before those items were removed by Mr Mongan and the security firm on that day.
The only conversation which appears to have occurred on 6 February 2024 relating to the removal of personal items was between Mr Anderson and Mr Lewis. However, that conversation related to two motorbikes and only took place in the early evening at around 6:30 pm.
This was some four-and-a-half hours after the employees of the security firm arrived, and several hours after Mr Mongan and the firm were shown, in unchallenged video footage, to have been removing other personal items from the Clubhouse.
In all the circumstances, I am satisfied on the evidence that after RSLWA terminated VMC's tenancy at will, VMC was not given any time at all (let alone any reasonable time) to enter the Clubhouse to remove its own property, as was required by law, before Mr Mongan and the security firm did so.
It is common ground VMC used and occupied the Clubhouse as a distinct entity 'with the consent' of RSLWA for approximately 27 years. There can be little doubt that RSLWA knew on 6 February 2024, that the Clubhouse itself was occupied by a separate organisation which had its own members, own president,[83] and own unique insignia.[84]
[83] ts 214, 220 and Exh R [28] and Annexure 'DJMA-6' pages 50 and 51 (Mr Anderson). ts 146 and Exh R Annexure 'DJMA-6' pages 50 and 51 (Mr Mongan).
[84] ts 208, 212 - 213, 215 and Exh R [12], [14], [15] (Mr Anderson). ts 153 - 155, 157, 171 and Exh MM [12], [20] (Mr Mongan).
Nonetheless, Mr Mongan explained that he removed the personal items of property while holding the belief that 'everything on the property [was] property of the [S]ub-[B]ranch'. Mr Mongan stated that, despite the Clubhouse having VMC insignia on it, he believed the property in the Clubhouse belonged to RSLWA as the Clubhouse 'was on the [S]ub‑[B]ranch premises'.
Mr Mongan's belief was evidently fortified by there being both military and RSL insignia inside the Clubhouse.[85]
[85] ts 170.
Mr Mongan continued to maintain that he held his belief even at trial.[86] This was despite it being common ground that many of the items removed from the Clubhouse on 6 February 2024 were later returned to VMC.
[86] ts 173 - 174.
Mr Mongan testified that he holds a Bachelor of Laws, a Graduate Diploma of Legal Practice, and a Master of Legal Practice. He also gave evidence that he was an admitted legal practitioner in two Australian jurisdictions and had practised law for some four years between 2018 and 2022.
By reason of his qualifications and experience at least, it is difficult to reconcile Mr Mongan's belief that everything in the Clubhouse was the property of the Sub-Branch with the fact that he not only knew VMC was the occupier of the Clubhouse[87] but also that VMC was a separate organisation.[88]
[87] ts 153 - 156.
[88] ts 146 and Exh R Annexure 'DJMA-6' pages 50 and 51.

Nonetheless, I accept Mr Mongan genuinely held that belief at the relevant time.
In any event, I am not satisfied that a sufficient evidentiary basis has been laid to infer that the removal of any personal items from the Clubhouse, without first giving VMC an opportunity to do so itself, could fairly be characterised as 'wanting in good faith'.

Late return of cash

It was common ground that RSLWA took some five months to return approximately $5,400 in cash to VMC taken with various other items from the Clubhouse on 6 February 2024.
However, it emerged during the hearing that there was a 'process by which things were identified and returned' to VMC. The process was apparently reflected in correspondence exchanged between the solicitors for the parties.[89]
[89] ts 230.
The correspondence between the parties was not introduced into evidence. Nor was any other evidence adduced to give context either to that process or to the reason(s) (if any) for why the cash was not returned earlier.
It follows that there is insufficient evidence from which the Court could reasonably determine that any delay associated with the return of the cash might reasonably be characterised as 'wanting in good faith'.

Non-return of items

Whilst VMC accepts most items were eventually returned, it was contended that some items were not and were wrongfully converted by RSLWA.
Mr Nicholls testified in effect that the following items were not returned: one of four cash boxes; the contents of a briefcase (including a calculator); and 'books' located in the Clubhouse.
Mr Nicholls could not distinguish, based on the video footage shown in Court, whether the 'books' were members' books or account books. That said, Mr Nicholls later confirmed, in response to two leading questions, that some '[a]ccount records … never came back'.[90]
[90] ts 301.
No further details were provided about those records and the topic was not further explored. Similarly, nothing more was said about the calculator or the contents of the briefcase.
Given the opaque nature of the evidence, I am far from satisfied that it has been shown, on the balance of probabilities, that any calculator or account records that may have been removed from the Clubhouse on 6 February 2024 were not subsequently returned.
That said I am satisfied on the evidence that a single 'cash tin' was probably not returned. However, there is in my view no basis at all to infer that any failure to do so was, viewed reasonably, 'wanting in good faith'.

Broken briefcase

One of the items returned to VMC was a briefcase taken on 6 February 2025. Video footage introduced into evidence shows Mr Mongan leaving the Clubhouse with the briefcase.
After being asked an impermissibly leading question, Mr Nicholls testified that 'the briefcase never came back the same. It had been wedged open and the locks had been broken off it too'.[91]
[91] ts 315.
He was then asked whether RSLWA offered to 'replace' the briefcase, to which Mr Nicholls responded 'No'.[92]
[92] ts 315.
However, there was no evidence to suggest that RSLWA was ever invited to repair or replace the briefcase. For at least that reason, there is in my view insufficient evidence to conclude RSLWA's conduct relating to the briefcase was 'wanting in good faith'.

Water bottles

It was further alleged that Mr Mongan removed approximately five water bottles from a fridge at the Clubhouse on 6 February 2024.
Mr Mongan testified that the bottles of water were given to employees of the private security firm who were working at the premises without air conditioning to keep them hydrated. As stated, Mr Mongan laboured under the belief that everything in the Clubhouse belonged to the Sub-Branch.
Considering the above, there is in my view no basis to infer that Mr Mongan's distribution of those water bottles to the security team, on a hot summer's day, could conceivably be characterised as 'wanting in good faith'.

No apology

It is common ground that RSLWA has not apologised for any of its conduct.
During the hearing, VMC sought, but did not obtain, an apology from Mr Mongan for taking five of VMC's water bottles, or from Mr Anderson for RSLWA withholding $5,400 of VMC's cash for some five months.
Given my finding that it has not been shown that RSLWA was 'wanting in good faith' either by the taking of the water bottles or in any delay associated with the repayment of cash, I do not consider that any failure by RSLWA to apologise for either of those things should lead to such a conclusion either.

Conclusion - unclean hands

Should relief be refused because of the 'unclean hands' doctrine?
In my view, the answer to this question must be 'no' for at least the following reasons.
First, RSLWA brought these proceedings as a direct consequence of VMC retaking possession of the Clubhouse by drilling out and removing the locks placed by RSLWA some six weeks after the items were removed.
For at least this reason there is no immediate (let alone necessary) connection between RSLWA removing various personal items from the Clubhouse after it had lawfully terminated VMC's tenancy at will and taken possession of the Property (on the one hand) and the injunctive relief which RSLWA seeks (on the other).
Accordingly, the 'protection' which RSLWA claims by seeking injunctive relief does not involve protection for RSLWA's 'own wrong'.
Secondly, I am not satisfied that any of the conduct relied upon by VMC in support of its 'unclean hands' argument has been shown to have been 'wanting in good faith'. As has been observed, almost all the items taken from the Clubhouse were in any event subsequently returned.
Thirdly, to refuse to grant an order requiring VMC to vacate the Property would be to deprive RSLWA of the only practical means of giving effect to the Court's declaration. Engaging the 'unclean hands' principle would thereby frustrate the very relief to which RSLWA has shown it is entitled as a matter of law.
It follows that VMC's 'unclean hands' argument must fail.
It would in my view be an appropriate exercise of the Court's discretion to grant the first injunction sought by RSLWA; namely, that VMC vacate the Property by a date to be set by the Court.
Such an injunction should be conditioned upon VMC being permitted to exercise, within a reasonable time, its right to disassemble the Clubhouse consistent with the terms recorded in the Lipari Document as I have found them to be.
That said, I do not consider it is either necessary or appropriate also to grant an injunction restraining VMC from again entering onto the Property without consent. The controversy between the parties has now been quelled, and there has been no suggestion that VMC will not abide by a decision of this Court.

Interlocutory application

Before concluding these reasons, one further matter warrants attention.
The matter concerns an interlocutory application by which RSLWA sought urgent injunctive relief requiring VMC to vacate the Property and restraining it from re-entry without RSLWA's written consent.
The interlocutory application was filed by RSLWA's current solicitors on the record, Bennett, on 24 April 2024 at the same time as RSLWA's writ in matter CIV 1458 of 2024.
Two affidavits were filed in support of the application. One was deposed by Mr Anderson, the other by Mr Mongan.
VMC later tendered both affidavits at trial.
Paragraph 15 of Mr Anderson's affidavit read:
15.I understood and was informed by RSLWA's Chief Executive Officer, Mr Vince Connelly, and believe, that:
15.1for a period of time up to 6 February 2024, the VMC made use of the Shed for its own purposes;
15.2there is no lease between RSLWA and the VMC in relation to the Property or the Shed, and there has never been a lease in favour of the VMC in relation to the Property or the Shed; and
15.3the VMC's use of the Shed appears to have occurred because members of the committee of the [Sub‑Branch] are members of the VMC.
(emphasis added)
Paragraphs 6 to 9 of Mr Mongan's affidavit read:
6 [As at 1 February 2024], [the Sub-Branch] operated from [the Property]. The registered proprietor of the Property is RSLWA.
7. Also, at this time, the Property, and in particular a green coloured shed on the property … was used by [VMC].
8.By reason of the withdrawal of its charter, the [Sub-Branch] ceased to have any right to use or occupy the Property.
9.The VMC never had any right to use or occupy the Property.
(emphasis added)
A copy of the document which would later become Exh H was neither annexed nor referred to in either affidavit.
Nor was there any indication, in either affidavit, that a recently discovered document, purportedly signed by several representatives of both VMC and the Sub-Branch, suggested: (a) the likely existence of an arrangement relating to the Clubhouse between the Sub-Branch and VMC dating as far back as 1996; (b) that the arrangement likely included a provision to the effect that VMC would have 'exclusive and unhindered use' of the Clubhouse in exchange for 'peppercorn' rent; or (c) that members of VMC had likely paid for the construction of the Clubhouse with their own monies.
At trial, Mr Anderson was taken to paragraph 15.2 of his affidavit. He confirmed he was aware of Exh H at the time he swore his affidavit on 24 April 2024.
Mr Mongan gave evidence at trial to the effect that he first saw Exh H on 6 February 2024 when he 'entered the premises', and that 'shortly after' that date he sought legal advice on the effect of Exh H from Bennett. According to Mr Mongan, he received such advice from Bennett around the end of February or early March 2024.
When asked why he had sworn that VMC 'never' had any right to occupy the Property, despite him having Exh H as at 24 April 2024, Mr Mongan responded this was '[b]ecause after my inquiries, the VMC never had any right to use or occupy the property' and that it was his 'personal opinion'.
When asked whether it would not have been appropriate to have attached Exh H to their respective affidavits, both Mr Anderson and Mr Mongan apologised for having not done so.
According to Mr Mongan, his affidavit of 24 April 2024 was prepared by Bennett '[w]ith my input'.
After judgment was reserved, and following enquiry by the Court, Bennett on behalf of RSLWA informed the Court that:
(1)The Court should not accept the evidence of Mr Mongan to the effect that he sought legal advice from Bennett in respect of Exh H which advice was provided around late February or early March 2024.
(2)This was because Bennett provided their initial advice on 22 March 2024, and at the time it provided its advice 'Bennett was not aware of the existence of Exhibit H'.
Following further enquiry by the Court, Bennett advised that a solicitor at the firm had seen:
a low-quality photograph of Exhibit H on 5 April 2024. This is the first occasion on which Bennett knew anything of the existence of Exhibit H. The document shown in the photograph was not recognised by any solicitor at Bennett as having any relevance to the [interlocutory] application filed on 24 April 2024.
It was not contended that the version of the document which the solicitor saw on 5 April 2024 was of such a low quality as to render it illegible.
Absent any reference to the document or its contents, the combined effect of the affidavits of Messrs Mongan and Anderson was such as to convey an impression to the Court that: (1) VMC had never enjoyed any right (ie. any right at all) to use or occupy any part of the Property; and (2) VMC's use of the 'Shed' (ie. the Clubhouse) had not endured for any significant period of time.
Neither impression was, of course, correct. Not only did VMC in fact enjoy a right to occupy the Clubhouse at least as a tenant at will with the knowledge and consent of RSLWA (the latter being common ground at trial), but VMC had also enjoyed that right for more than a quarter of a century until its eviction by RSLWA on 6 February 2024.
Written submissions subsequently filed by Bennett on behalf of RSLWA on 30 April 2024, in support of the interlocutory application, did little to dispel either impression.
Paragraph 8 of those submissions read:
At a time unknown to [RSLWA], VMC began to use and occupy the Property. It had (and has) no legal right to that use and occupation.
(emphasis added)
The interlocutory application was first called for hearing on 1 May 2024. Ultimately, the application was not argued and the affidavits filed in support were never read by RSLWA. This was because the application was adjourned sine die in favour of an expedited trial on the main action.
However, the application was only so adjourned after VMC (which was initially unrepresented) provided further information to the Court about the alleged nature of the arrangement relating to its use and occupation of the Clubhouse, and about the long-standing duration of that arrangement, prior to 6 February 2024.
According to RSLWA, none of its representatives knew anything about the provenance of the undated document which was found at the Property on 6 February 2024, or had any recollection of it, and the document had not formed part of RSLWA's own records.
Further, according to RSLWA, even if the provenance of the document could have been established, no solicitor at Bennett considered it 'to have any relevance to the question of whether an enforceable lease [then] existed between [RSLWA] and VMC … [and] [t]he document … did not, in the opinion of the solicitors at Bennet[t], constitute any form of enforceable lease between VMC and RSL[W]A'.
Additionally, according to RSLWA, the statement in Mr Mongan's affidavit that VMC 'never' had any right to use or occupy the Property is to be understood in a context where RSLWA's searches and inquiries had been directed to the identification of a lease, and Mr Mongan's reference to the absence of a right of use or occupation as a reference to the absence of a leasehold interest.[93]
[93] Whilst there was evidence at trial about this topic, neither Mr Mongan nor Mr Anderson deposed to any such searches or inquiries in their affidavits.
Moreover, according to RSLWA, its position at the time of the interlocutory application was that VMC in fact had no legal right to use and occupy the Property from 21 March 2024.
This was because, by that date, RSLWA had given notice to VMC that RSLWA did not consent to its use or occupation of the Property and, further, by this time no lease had been identified 'despite intensive inquiries and searches'.
I accept that the application was brought in a context where VMC had reinstalled itself in the Clubhouse. I also accept that RSLWA's task was, accordingly, simply to establish on a prima facie basis that VMC's direct and intentional (or negligent) interference with RSLWA's right of possession had occurred without its consent or other lawful authority.
However, in my view, neither the above circumstance nor any of RSLWA's explanations ultimately resolves the difficulty that the combined effect of unqualified statements in the two affidavits, and the failure by either deponent to say anything at all about the existence or contents of Exh H, rendered the affidavits readily capable of giving rise to impressions that were apt to mislead.
Whenever documents are filed with the Court in connection with pending proceedings, it should be assumed they will be read by a judicial officer even if ultimately not relied upon by the party who files them.
It goes without saying that the Court is entitled to proceed on the basis that such documents are accurate and complete in every material respect and not apt to mislead.
That is all the more so where, as here, the documents are filed in support of an application seeking urgent injunctive relief against an unrepresented party, and where the balance of convenience is a consideration of potential relevance to the grant (or refusal) of the relief sought.

Conclusion and orders

For the reasons set out in paragraphs 1 to 231 above, there will be judgment for the plaintiff.
I will hear from the parties both as to the final form of orders and on the question of costs (including as to the costs of the urgent interlocutory application).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LI
Associate to the Hon Justice Musikanth
6 MARCH 2025