Bondi Beach Astra Retirement Village Pty Ltd v Gora [2011] NSWCA 396 | Case summary

1GILES JA : Subject to the following observations, for the reasons given by Campbell JA the orders proposed by his Honour should be made. 2The reasons amply reveal that the historical foundation for, and disparate formulations of, invalidity as a restraint on alienation are not a sound basis for acting upon rigid rules in modern times. If there were a clear common law rule applicable in the present case it would have to be applied, but there is not. 3On the authority of Hall v Busst (1960) 104 CLR 206, at least for contractual restraints invalidity is now founded on a public policy in favour of free alienability of property. Like any such policy matter, it must be balanced with other policies and given effect only if the circumstances so require. The remark of Gummow J in Caboche v Ramsay (1993) 119 ALR 215 at 232 that "the question is one of degree" can extend to the command of free alienability in the particular circumstances. 4There are many inroads into free alienability of property. From Reuthlinger v MacDonald (1976) 1 NSWLR 88 and its approval on appeal, a restraint imposed for the protection of a valid collateral object is not invalid. This should not be seen as a particular principle of its own: it is an expression of circumstances in which the public policy in favour of free alienability of property does not hold sway, because on balance the public interest is better served by permitting the restraint. Regard should not be confined to the purpose of the parties to the restraint, but extends to the social utility of permitting restraints of that nature. I remain of the view expressed in Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express (Australia) Pty Ltd [2008] NSWCA 327 at [81]. 5For the reasons given by Campbell JA, and without any need to join in his Honour's detailed observations on cases on other facts, restraints of the present kind in the provision and operation of retirement villages serve sound purposes. They have been recognised in legislation. The age of 55 leaves many useful years, but can mark a change in lifestyle including to the world of a retirement village. To those who wish it, many or perhaps most of whom will need to take care with their finances, a lesser capital outlay at the cost of restraints of the kind in the present case will be acceptable, if not attractive. As retirement villages are conducted, the result will not be that property is taken out of commerce because it is inalienable. It will be cycled through successive residents of the retirement village. Public policy does not require that the restraints be struck down. 6CAMPBELL JA : Nature of the Case 7The Astra was once a hotel located at the intersection of Campbell Parade and Sir Thomas Mitchell Road, Bondi Beach. In January 1985 CG Maloney Pty Ltd (" CGM ") procured the registration of a strata plan for the building, and set about marketing the units in it, on the basis that the building would be administered as a retirement village. 8The conveyancing and administrative arrangements under which the retirement village was to operate were unusual. In broad terms, a purchaser would purchase a strata title unit from CGM, on terms requiring it to enter into two agreements with the Appellant, Bondi Beach Astra Retirement Village Pty Ltd (" BBA "). One of those agreements, called an Occupancy Agreement, was to be entered between BBA on the one part, and the proprietor and occupier of the unit. It contained an option entitling BBA to acquire the unit for a price equal to that which the proprietor had paid for it (minus certain adjustments) in various events, one of which was the death of the proprietor. The other deed, called a Buyback Deed, was entered between BBA, the proprietor and occupant. It conferred put and call options on both BBA, and the proprietor, entitling BBA to require the proprietor to sell the unit, and entitling the proprietor to require BBA to purchase the unit. That sale was to be at the price that the proprietor had originally paid for it (minus certain adjustments). The options arose in various circumstances, including if the proprietor wished to sell the unit. A definition extended "proprietor" to include successors in title of the proprietor. 9The late Mr Clifford Evans and his wife Dorothy Evans purchased lot 40 in the strata plan, as joint tenants. They entered an Occupancy Agreement and a Buyback Deed. Upon the death of Mrs Evans, Mr Evans became the sole proprietor and occupant of the unit. The Respondents to this appeal are the daughters of Mr and Mrs Evans, who are also the executrices of Mr Evans. 10After the death of Mr Evans, there were some communications between the solicitors for BBA and the Respondents, concerning exercise by BBA of the option to purchase contained in the Occupancy Agreement. 11Eventually BBA commenced litigation against the Respondents, contending that it had validly exercised the option to purchase. As ultimately formulated in the Second Further Amended Statement of Claim, it sought a declaration that it had validly exercised the option for purchase, an order for specific performance of that agreement, or alternatively, damages for breach of that contract. Alternatively, it sought a declaration that the Respondents were bound not to sell, transfer or otherwise dispose of the unit otherwise than to pursuant to the provisions of the Buyback Deed. As a further alternative, it sought a declaration that should the Respondents wish to sell, transfer or dispose of the Unit to any purchaser who must be a qualified occupant, they must cause that purchaser to enter into an Occupancy Agreement with BBA on the same terms and conditions as the Occupancy Agreement entered into by Mr and Mrs Evans upon purchase of the Unit, including the further obligation recorded in clause 2 of the Buyback Deed. That obligation was, in broad terms, to require any further purchaser to agree to the same restrictions on transfer. The pleading also sought an order that BBA could maintain a caveat recording that right. Finally, there was a claim based on estoppel, that has not been pressed on the appeal. 12Bryson AJ dismissed BBA's proceedings: Bondi Beach Astra Retirement Village Pty Ltd v Gora [2010] NSWSC 81. 13This appeal gives rise to the following issues: (1) Whether BBA gave the type of notice necessary for exercise of the option to purchase. I have concluded that it did not. (2) Whether any contract resulting from exercise of the option has been abandoned. That issue does not arise, because of my answer to the first issue. However, if my answer to the first issue were wrong I would conclude the contract had been abandoned. (3) If a contract resulting from exercise of the option was still on foot when the matter came to court, whether BBA was ineligible for the grant of equitable relief because it was a volunteer. Again, this issue does not arise because of my answers to the first two questions. However, if my answers to those issues were wrong, my answer to this issue would be "no" . (4) Whether the option in the Occupancy Agreement, the option in the Buyback Deed, or both of those options are void by reason of the public policy concerning restraints on alienation of property. An aspect of that issue is whether the Respondents are obliged only to dispose of the property to a person who agrees to be subject to the same restrictions on transfer that the Occupancy Agreement and the Buyback Deed purport to impose on the Respondents. I have concluded that neither of the options is void and that the Respondents are subject to the obligation concerning to whom they may transfer the property. PART A - FACTS 14The first Annual General Meeting of the body corporate was held on 12 December 1986. One of its resolutions was to adopt a by-law 32, which provided: "That exclusive use of those parts of the Common Property comprising the swimming pool area, passageways and corridors on all floors, the courtyard areas, and the residents' facilities and lounges on the ground floor will be granted to the Service Company subject to the Service Company properly maintaining and keeping in good repair those areas and that in accordance with the Occupancy Agreement the Service Company will sub-licence all proprietors and occupiers of the residential lots to permit them to use such areas." In that resolution the "Service Company" was BBA. 15On 1 July 1987 Mr and Mrs Evans entered a contract with CGM for the sale and purchase of lot 40 in the strata plan, for the price of $107,000. The contract was in the form of the 1986 edition of the standard form Agreement for Sale of Land produced by the Law Society of New South Wales and the Real Estate Institute of New South Wales, with some amendments and special conditions. It stated the address of Mr and Mrs Evans as being at a home unit in Hastings Parade, Bondi Beach. Pursuant to the second schedule of the contract, the title was subject to restrictions as to user created by the registration of the strata plan. There was in fact only such restriction as to user, namely: "No person other than a person aged 55 years or over shall occupy any lot herein provided that: (a) a person not being aged 55 years or over may reside with the occupier of the lot being a person aged 55 years or over in any lot herein: (b) this restriction shall not apply to the occupation of lot 4 in the event that such lot is used as the residence of a manager of the Bondi Beach Astra Retirement Village." 16One of the special conditions required the purchasers upon completion to enter into and procure the occupant of the lot to enter into two deeds, the text of which was annexed to the contract. They have been referred to as the Occupancy Agreement and the Buyback Deed. 17Inappropriately, as the first Annual General Meeting of the body corporate had already occurred, another special condition provided: "The parties acknowledge that it would be proposed at the first Annual General Meeting of the Body Corporate that exclusive use of those parts of the common property comprising the swimming pool area, passageways and corridors on all floors, the courtyard areas, and the residents' facilities and lounges on the ground floor will be granted to the Service Company subject to the Service Company properly maintaining and keeping in good repair those areas and that in accordance with the Occupancy Agreement the Service Company will sub-licence all proprietors and occupiers of the residential lots to permit them to use such areas." 18The by-laws that had been adopted on 12 December 1986 were registered on 3 August 1987. 19On 22 September 1987 settlement of the transaction occurred. Mr and Mrs Evans received a Real Property Act 1900 transfer from CGM relating to lot 40. That transfer was registered on 10 December 1987. 20On 30 September 1987 Mr and Mrs Evans entered the Occupancy Agreement and the Buyback Deed that are at the heart of this litigation. The Occupancy Agreement 21The Occupancy Agreement took the form of a deed, expressed to be between three parties. The first of them was BBA, called "the Service Company". The second of them was Mr and Mrs Evans, called "Occupant". The third of them was Mr and Mrs Evans again, this time called "Proprietor". 22The Deed recited CGM's renovation of the Astra "which is planned to be the residence of persons of 55 years of age and over ", and that the Proprietor was registered or entitled to be registered as proprietor of the unit. It continued: "C. The Service Company has or will be as far as legally possible granted exclusive use and possession of the Communal Areas. D. The parties hereto desire to enter into an agreement for the welfare, regulation and conduct of all unit owners at the Astra and the Occupant and the Proprietor have requested that the Service Company manage and administer the Astra and the Communal Areas to ensure that the residents of the Village enjoy such reasonable privacy and quiet possession and enjoyment as is consistent with the physical characteristics of a retirement village designed for the residence of persons 55 years of age and over." 23BBA promised to carry out various tasks concerning the operation of the retirement village. I will consider those promises in more detail later, when examining the argument that BBA is a volunteer and thus not entitled to an equitable remedy. 24There are some other provisions of the Occupancy Agreement that are relevant to the argument about whether either or both of the options breach the public policy concerning restraint on alienation. I will deal with those provisions when considering that topic. 25BBA contends that in the present case the option to purchase was triggered by Clause 7(a)(i) of the Occupancy Agreement. Clause 7 commences: "The Occupant and the Proprietor covenant with the Service Company that the right of the occupant to reside at the Bondi Beach Astra, to the comm unal areas and occupy the unit shall cease and determine on the happening of any one or more of the following events and the right granted to the Service Company pursuant to Clause 8 hereinafter appearing shall arise upon the happening of any one or more of the following events:- (a) If the Occupant shall not qualify as a Qualified Occupant for any reason including without limiting the generality of the foregoing:- (i) if the Occupant shall die ..." 26There are some definitions contained in a Schedule to the Occupancy Agreement: "'The Occupant" - means and includes the said CLIFFORD EVANS and DOROTHY EVANS and his/her or their executors, administrators and successors in title. 'The Proprietor' - means and includes the said CLIFFORD EVANS and DOROTHY EVANS ... and his/her or their executors, administrators and successors in title being the registered Proprietor who is registered or entitled to be registered as the Proprietor of the unit or any Mortgagee who has granted a Mortgage to the Proprietor. 'Qualified Occupant' - means a person who complies with the requirements of any s 88B Instrument registered on the title to this or any other Unit and who has entered or has agreed to enter into an occupancy agreement with the Service Company upon similar terms as are herein contained." 27Clause 8 states the terms of the option: "(a) Upon the happening of any of the events referred to in Clause 7 hereof the Service company shall have the option at any time thereafter by notice in writing (hereinafter called 'the Default Buyback Notice') served upon the Proprietor to require the Proprietor to transfer the Unit to the Service Company or its nominee for the price of One Hundred and Seven Thousand dollars ($107,000.00) whereupon the following terms and conditions shall apply: (i) the parties shall upon the service of the Default Buyback Notice be deemed to have entered into an Agreement upon the same terms and conditions as are contained in the Standard Agreement for Sale of Land - 1986 Edition with the following alterations omissions and additions thereto:- (aa) Clause H shall be amended so that the 10% deposit is payable by the Service Company to the Proprietor or the Proprietor's Solicitor as stakeholder; (bb) Clause K shall be amended so that vacant possession is given as at the date of completion; (cc) Clause 6(a) and 6 (b) of this Agreement shall become a condition of and incorporated in the Agreement; (dd) There shall be attached to the Contract pursuant to s 52A(2)(a) of the Conveyancing Act 1919 the documents or copies of the documents referred to in the Fourth Schedule in the Standard Agreement for Sale of Land - 1986 Edition; (ee) Within fourteen (14) days of the service of the Default Buyback Notice the parties shall exchange formal written Agreements containing the above terms and conditions." 28The Standard Agreement for Sale of Land - 1986 edition that is thereby incorporated contains, in item G of the particulars, provision for including the price, the deposit, and the balance. Item H of the particulars provides: "THE DEPOSIT is payable to * Vendor's Agent first named" 29Item K in the particulars makes provision for stating the date as at which the benefit of possession is to be given, and whether the possession is to be vacant possession, or subject to existing tenancies or occupancies under the Vendor as particularised in the contract. 30As seen above in Clause 8(a)(cc) of the Occupancy Agreement, clauses 6(a) and (b) are incorporated by reference into the contract for sale that is to arise upon exercise of the option. Those clauses provide: "(a) Upon the sale or transfer of the Unit to the Service Company or its nominee by either the Proprietor or by any Mortgagee thereof the following payments shall be made by or on behalf of such Proprietor to or deducted by the Service Company on completion of the sale or transfer thereof:- (i) All costs, fees and expenses paid or incurred by the Service Company in connection with the sale and transfer of the Proprietor's unit including any reasonable costs of repairs or refurbishment payable to or by the Service Company or assessed by the Service Company to be reasonably payable to restore the Unit to its condition existing at the date of its original purchase by the Proprietor. (ii) all other moneys owing by the Occupant or the Proprietor to the Service Company whether pursuant to this Occupancy Agreement or otherwise. (b) The Proprietor hereby charges the Unit with the payment of all sums of money referred to in Clause 6(a) hereof and hereby acknowledges that the charge herein created constitutes an interest in land entitling the Service Company to register a Caveat against the folio of the Register in the Land Titles Office relating to the Unit." 31Clause 9(a) of the Occupancy Agreement provides: "A notice may be given by the Service Company to any Occupant or any Proprietor either personally or by delivering it to the Unit or by sending it by post to either of them at the Unit or at their respective address as set out in this Agreement. Where a notice is sent by post to the Unit or at any address as shown herein service thereof shall be deemed to be effected by properly addressing, prepaying and posting a letter containing the notice and to have been effected in the case of a notice of a meeting on the day after the date of its posting and in any other case at the time at which the letter would be delivered in the ordinary course of post ... A notice shall be deemed to have been served in accordance with the provisions of this Clause and in conformity with this Agreement notwithstanding that the Occupant or the Proprietor to whom it is addressed is deceased or not living in the Unit." Events Relating to Exercise of the Option 32Mrs Evans died on 5 January 1995. Her only asset of any significance was her interest in the unit, which passed by survivorship to Mr Evans. There was no grant of probate or letters of administration concerning her estate. The passing of her interest in the unit to Mr Evans was not notified on the Register. 33On 16 September 1997 Mr Evans died. Probate of his will was granted to the Respondents on 27 February 1998. 34Notwithstanding the length of time since the death of Mr Evans, there has never been a transmission application relating to the unit, lodged with the Registrar General's Office. Thus, title to the unit continues to be registered in the name of Mr and Mrs Evans. 35On 19 February 1999 the solicitors for BBA wrote to the solicitors who had acted for Mr and Mrs Evans on purchase of the unit in 1987. The letter stated that they were instructed that Mr and Mrs Evans were both dead, and that BBA wished to exercise its rights concerning repurchase of the unit. That letter is not shown to have ever come to the attention of the Respondents. 36On 23 February 1999 BBA's solicitors wrote the following letter: "The Executors of the Estate of the late Clifford and Dorothy Evans C/- Unit 40/34 Campbell Parade Bondi Beach NSW 2026 Dear Sirs Re: The Executors of the Estate of the late Clifford and Dorothy Evans Bondi Beach Astra Retirement Village Pty Ltd Buy Back Unit 40 Property: 40/34 Campbell Parade, Bondi Beach NSW 2026 We are the solicitors who act on behalf of Bondi Beach Astra Retirement Village Pty Ltd. We have been advised of the death of the late Dorothy and Clifford Evans and we offer our condolences. On the purchase of the property known as unit 40 Bondi Beach Astra Retirement Village, 34 Campbell Parade, Bondi Beach, the contract provides that the company has the right to re-purchase the unit upon the death of the proprietors. We are instructed that our client wishes to exercise its rights to re-purchase the unit, and we would therefore be pleased if you could contact us in respect of making arrangements for the re-purchase of the unit by the company. Yours faithfully" 37The judge found that that letter came to the attention of the Respondents in late February 1999. That finding is not contested. 38On 10 March 1999 the Respondents' solicitors replied to BBA's solicitors concerning the letter of 23 February 1999. They said: "To allow us to advise our clients concerning the re-purchase right asserted by your client, we request that you forward to us:

A copy of the purchase contract to which your letter refers, and a copy of any other documents signed by the late Mr and Mrs Evans, upon which your client relies as supporting its re-purchase right.
A copy of any agreement between your client and the owner corporation of the Astra relating to your client's management of the communal areas and common property of the Astra, or to any other duties performed by your client for the owner corporation. On the basis of the information currently available to them, our clients are unable to concede that your client does have the benefit of the re-purchase right that it assets. However, that matter will be further considered once the requested documents have been made available." 39On 15 March 1999 BBA's solicitors replied, enclosing a copy of the original sales contract and the Occupancy Agreement. They said: "Please obtain your client's instructions and we will prepare contracts for the buy back of the unit." 40On 22 April 1999 BBA's solicitors wrote once more to the Respondents' solicitors, saying: "We are instructed that our clients wish to proceed with the buy back of the above mentioned unit. Please advise whether you wish us to prepare contracts. Further, we note that the provisions of the buy back agreement require that pursuant to clause 3a of the occupancy agreement, the service company's costs and the reasonable refurbishment costs of the unit are to be deducted from the agreed price of $107,000.00. In order that the reasonable costs of repair and refurbishment can be determined, we request that access be made available to the company's agent, Mr Karl Jaeger of Raine and Horne Real Estate, Bondi Beach. Our costs for acting on behalf of the buy back are as follows:" It then itemised their costs and disbursements, totalling $1,440.00. The reference to clause 3a is quite clearly a misprint for clause 6(a). 41On 28 April 1999 the solicitors for the Respondents wrote to BBA's solicitors, referring to the letter of 22 April 1999, and continuing: "We have reviewed the documents forwarded with your letter dated 15 March 1999. However, those documents did not include copies of any agreements between your client and the body corporate/owner corporation of Strata Plan 22422. It would appear that at least one such agreement exists, relating to the management of the common property. We confirm our request that a copy of that document, and any other agreements between the specified parties, be made available to us for review by our client. When we have reviewed those documents we will finalise our advice to our client and respond to your letter." 42BBA's solicitors replied on 17 May 1999, saying: "We advise that the rights given to our client in respect of the exclusive use of the common property are contained in the strata plan by-laws, and we enclose a copy for your records. We trust this satisfies your queries and we look forward to proceeding on the buy back of the property in accordance with the terms of the deed." 43The Respondents' solicitors replied on 8 June 1999, saying: "In our letter we requested that you make available to us on behalf of our client copies of any agreements between Bondi Beach Astra Retirement Village Pty Ltd ("the service company") and the body corporate/owners corporation of Strata Plan 22422. We noted in particular that the documents supplied should relate to your client's management of the common property. Under cover of your reply, you forwarded to us a copy of a Notice of Change of By-Laws executed under the common seal of the body corporate on 27 May 1987. That document in turn annexed a document marked "A" setting out the text of by-laws 30, 31, 32, and 33. The first two by-laws related to the exclusive use and enjoyment of certain car spaces. By-law 32 purported to give your client exclusive use of certain designated common property areas. By-law 33 related to the exclusive use of shop fronts and exterior walls of Lot 62, 63 and 64." 44The letter then went on to itemise various of the obligations that BBA had undertaken under the Occupancy Agreement. The letter continued: "The functions and powers to be performed and exercised by the service company, as specified in the occupancy agreement, appear to go significantly beyond the rights conferred on the service company by the by-laws referred to in the Notice of Change of By-Laws submitted with your previous letter. We therefore assume that, given the terms of the occupancy agreement, there must be some other agreement entered into between the body corporate and the service company. If that assumption is correct, please supply a copy of that other agreement or of each of those other agreements. If our assumption is incorrect, and there are no other agreements, on what basis does your client contend that it was authorised or empowered to enter into the occupancy agreement and to make to occupants of units within the Astra complex the representations to which you have referred? Until these matters are clarified, we are unable to recommend to our clients that the rights asserted by your client should be conceded. 45BBA's solicitors replied on 15 June 1999, saying: "We are instructed that Clifford Evans and Dorothy Evans entered into an agreement with our client; at the time of the purchase of the property, the terms of which we have previously forwarded to you. Pursuant to that agreement, our client has the right to re-purchase the property, and it is our client's intention to do so. Therefore, we look forward to your confirmation that your clients will exchange contracts in accordance with the terms of the original agreement. Please advise whether you wish us to prepare the contracts." 46The Respondents' solicitors replied to BBA's solicitors on 7 July 1999, saying: "We note your confirmation that there are no agreements between the owner corporation of Strata Plan 22422 and your client, Bondi Beach Astra Retirement Village Pty Ltd. The occupation agreement between the late Mr and Mrs Evans and your client was entered into on the basis of the exclusive use by-laws, copies of which were furnished with your letter dated 17 May 1999. As this issue has now been clarified, we are arranging a conference between our client and Mr Cork following Mr Cork's return from leave on 19 July 1999." Mr Cork was the solicitor who usually acted for the Respondents concerning this matter. 47The next relevant event occurred when BBA's solicitors wrote to the Respondent's solicitors on 12 July 2002. That letter was headed "Without Prejudice" . At trial, BBA tendered that letter and a response from the Respondents' solicitors dated 2 August 2002, also headed "Without Prejudice" . No explicit ruling under s 136 Evidence Act 1995 was sought or made limiting the use that could be made of those letters. However, at the time of tendering them, counsel for BBA said that they: "... are letters which are headed without prejudice. I don't tender them to prove any admissions made in them, but if there's an argument about laches and delay, it may become relevant that the matter is raised and not dropped entirely in that period. That would be the only relevance of these documents." 48I shall proceed by assuming, without deciding, that this Court should adhere to the limited basis upon which counsel for BBA put the letters forward. Redacting the letter of 12 July 2002 to remove any possible admission, it said: "We note that whilst our client maintains its rights to require your client to resell the property to our client in an attempt to resolve this matter, Mr Bray on behalf of our office discussed the possibility of [a proposed basis for settlement]. We are instructed to again re-submit this proposal for your client's consideration and if such a proposal is suitable to your client, we would be pleased if you would contact us in order that the parties can [discuss the steps necessary to implement a settlement on that basis]. Unless this matter is resolved no later than 31 July 2002, then we are instructed by our client to immediately issue a Summons in the Supreme Court seeking Specific Performance without further notice." 49The Respondents' solicitors replied on 2 August 2002, saying they had secured the Respondents' instructions, and continuing: "Our clients understand your letter to convey an offer which does not involve any acknowledgment by your client of the issues that may arise in any litigation that it now commences. On the one hand, we consider that those difficulties will be compounded by the fact that it is now almost five years since the date of death of the late Mr Clifford Evans. On the other hand, we adhere to our previously expressed view that there appear to be significant difficulties for your client in seeking to rely upon the documentation that was signed by the late Mr and Mrs Evans when the unit was originally purchased. [Argument about why the offer was not attractive.] The critical question to be addressed by your client, and ultimately by any Court before which the foreshadowed proceedings were commenced, would be whether the documents upon which your client seeks to rely are in fact binding upon the Estate. Since our original review of those documents it has been our opinion, which we have confirmed in advice to our clients, that the documents are probably unenforceable. We have not communicated our views to any solicitors acting for any other residents of the village. As far as we are aware, no other resident is aware either of the advice that our clients have received or of any dispute in relation to your client's asserted buy-back rights. Obviously the commencement of proceedings would bring that situation to an end. We are instructed that our clients propose the following resolution of the current impasse. Our clients propose that Bondi Beach Astra Retirement Village Pty Ltd elect not to attempt to enforce its buy-back rights, and that it enter into a deed with our clients, confirming that election. That deed would embody binding confidentiality clauses, precluding our clients from releasing any information concerning this matter to any person other than their legal and financial advisers. Our advice to our clients has not been given lightly. Before finalising our advice we consulted with counsel. Our clients are aware of the implications of their decision. While our clients would prefer to see this matter resolved amicably, and on a basis that respects the interests of both parties, both now and into the future, our clients stand ready to defend any proceedings that your client may now seek to initiate. Regardless of your client's decision concerning this response, we would be grateful if Mr Bray could telephone Mr Cork to further discuss the matter." 50An invitation to the other side in a dispute to give up, even on terms of a confidentiality agreement, is not an admission. Therefore I have included in this extract (without redaction) the proposal put by the Respondents' solicitors. 51Nothing then happened until 10 October 2007. On 10 October 2007 BBA's solicitors wrote to the Respondents' solicitors, saying: "We are instructed to confirm our clients require the buy back of the subject Unit Number 40 for the sum of A$107,000.00 pursuant to the provisions of the contract for the sale of land dated 1 st July 1987 and a Deed of Occupancy dated 30 September 1987, originals of which (signed by the deceased) are in our possession. Notwithstanding your previous observations in respect of the Deed and the contract, our client has Counsel's advice that they are valid and enforceable. Would you therefore please obtain your clients' instructions as to whether or not they intend to adhere to the relevant provisions of the said agreements or otherwise within 14 calendar days of the date of this letter. If they instruct you that they will not honour the terms of these agreements, please obtain your clients' instructions to accept service of process on their behalf. Failing receipt of a definitive reply within the above time, you and your clients are placed on notice that our client may take such measures as are open to it including the commencement of proceedings to enforce its contractual and other rights without any further notice to either you or your clients." 52On 30 October 2007 the Respondents' solicitors requested that the counsel's advice to which BBA's solicitors had referred be made available, and that the Respondents be allowed 14 days "to reach a decision on the matters that you have raised" . 53On 5 November 2007 BBA's solicitors replied, declining the request to make the counsel's advice available, and reiterating their instructions to require the buyback of the unit. 54After some more inconclusive correspondence between the solicitors, on 1 April 2008 BBA's solicitors sent to the solicitors for the Respondents a notice, executed by the sole director of BBA and witnessed, in the following terms: " Buy Back Notice We hereby provide notice that Bondi Beach Astra Retirement Village Pty Ltd require Geraldine Lois Gora, Rhondda Jean Rytmeister and Lee Brown Evans as the executrices of the estate of the late Clifford Evans to transfer unit 40, 34 Campbell Parade, Bondi Beach New South Wales comprised in lot 40 Strata Plan 22422 to Bondi Beach Astra Retirement Village Pty Ltd or nominee for the price of $107,000 in accordance with the Occupancy Agreement each dated 30 September 1987 between Bondi Beach Astra Retirement Village Pty Ltd and Clifford Evans and Dorothy Evans. Pursuant to clause 8(a)(i)(ee) of the Occupancy Agreement Bondi Beach Astra Retirement Village Pty Ltd require that exchange of contracts take place within 14 days of service of this letter." 55The covering letter threatened imminent litigation if the notice was not complied with. On 1 May 2008, BBA commenced the proceedings in which the orders appealed against were made. PART B - EFFECTIVE EXERCISE OF THE OPTION? The Decision Below 56At the trial BBA sought to rely on any or all of the letters and notices that I have set out, ranging from 19 February 1999 to 1 April 2008, as constituting the relevant Default Buyback Notice. The judge held that there was a fundamental problem with relying on any buyback notice given after 31 December 1999. 57That fundamental problem arose from s 167 Retirement Villages Act 1999 (" the 1999 Act "). That section provides: "(1) An operator of a retirement village who holds an option to purchase any residential premises from a resident of the village must decide whether or not to exercise the option, and must give the resident written notification of that decision, no later than 28 days after the resident permanently vacates the premises (or, if the resident has not lived in the premises, 28 days after the resident notifies the operator in writing that the premises are for sale). (2) If the operator does not give the notification required by subsection (1) within the time allowed by that subsection, the option lapses. (3) This section has effect despite any term of the option." 58The trial judge held that the 1999 Act came into operation on 3 December 1999. Its transitional provisions, in Schedule 4, include: " 9 Vacation of residential premises A resident of a retirement village under the former Act who permanently left his or her residential premises before the commencement of this Act is taken to have permanently vacated the premises for the purposes of this Act. ... 13 Date of permanent vacation of residential premises in retirement village For the purposes of [the Part in which s 167 occurs], a former occupant who permanently vacated his or her residential premises in a retirement village before the commencement of this clause is taken to have permanently vacated the premises on that commencement." 59Section 8 of the 1999 Act provides that a person is taken to have permanently vacated residential premises in a retirement village in circumstances including: "(d) if the person is a registered interest holder in relation to residential premises or is taken to be a resident of the premises by the operation of section 4(2)-the person dies or moves out of the premises." 60The judge's reasoning was that under s 7 of that Act, one of the ways in which a person was a "registered interest holder" with respect to residential premises in a retirement village was by being "the registered proprietor of land ... within a retirement village and as such has a residence right in respect of residential premises within the retirement village" . As Mr Evans had been a "registered interest holder" , he was taken to have permanently vacated his premises at the time he died. Thus, for the purposes of s 167, he was taken to have permanently vacated the premises on the commencement of the 1999 Act. Thus, the trial judge held, s 167 gave 28 days from 3 December 1999 for the exercise of an option to purchase the residential premises, after which the option lapsed. 61His Honour's conclusion that it was not possible for the option contained in the Occupancy Agreement to be exercised any later than 31 December 1999 has not been challenged in this appeal. 62The judge held that the letter of 23 February 1999 ([ 36 ] above) met the requirements concerning content and mode of service of a Default Buyback Notice. Decision Re Exercise of Option 63In this appeal, the Respondents, by Notice of Contention, submit that the letter of 23 February 1999 did not meet the requirements for effective exercise of the option. BBA seeks to uphold the judge's decision in this respect, or alternatively to argue that there was an effective exercise of the option either by a combination of the letter of 23 February 1999 ([36] above) and the provision of the sales contract and Occupancy Agreement on 15 March 1999, or alternatively by the letter of 15 June 1999 ([45] above). 64Clause 8(a) of the Occupancy Agreement ([ 27 ] above) identifies the following characteristics of an exercise of the option:

BBA could obtain specific performance only if it had given value,
any consideration that flowed to Mr and Mrs Evans under the contract for sale and purchase of the unit, could not avail BBA, because it was not a party to that contract, and
thus that any consideration given by BBA for the option must be found in the Occupancy Agreement. None of those propositions is disputed on this appeal. 122The judge also held that by-law 32 ([14] above) never operated to give any exclusive rights to BBA to diminish any rights of the proprietors of lots in the strata plan with respect to the common property, or to make the rights of proprietors dependent upon any arrangement they may have made with BBA ([65]). That finding has also not been disputed on this appeal. 123However, the judge went on to find at [66]: "Although much of what BBA promised the Evans it would do was illusory, in that it involved conferral on the Evans of licences and permissions to do things which they were entitled to do anyway, and also much of what was promised conferred little or no advantage because the Evans were entitled to have the subject matter of the promises performed for them by other persons or in other ways, there remained a core of advantage to the Evans in the promises given by BBA. The value given to them may not have been as great as a reading of the Occupancy Agreement might suggest; but there was value there, and in my opinion BBA is not a volunteer in its claim to enforce promises made by the Evans in the Occupancy Agreement." 124At the time the Occupancy Agreement was entered, the administration of strata title schemes was governed by the Strata Titles Act 1973 . The duties of a body corporate were set out in s 68 of that Act. Many of the matters that BBA promised it would ensure happened are matters that are, under s 68, the duty of the body corporate. However, there is no duty set out in s 68 that would require a body corporate to perform the full extent of the tasks that BBA undertook by Clause 1(a) of the Occupancy Agreement. The obligation of the body corporate under s 68(1) to control, manage and administer the common property, keep it in repair and when necessary renew or replace fixtures and fittings, does not extend as far as the obligation under clause 1(a) "to attend to the comfort and all reasonable and proper requests and demands of the occupants" . Nor is there an obligation on the body corporate to carry out the obligations of Mr and Mrs Evans as a member of the body corporate, as Clause 1(b) requires BBA to do. Those matters in themselves are enough to provide consideration. 125Further, even if it were the case that all of the matters that BBA promised it would ensure happen were in any event the duties of the body corporate (the submissions did not descend to the level of detail of establishing whether this was actually so), a promise to ensure that someone who is already under a legal duty to do something will carry out that legal duty is well capable of providing consideration. 126There was an incompletely articulated argument that there was no consideration because performance by BBA of its obligations under the Occupancy Agreement would be illegal. One element of the argument is that at the time the Occupancy Agreement was entered, s 78(1) Strata Titles Act 1973 permitted a body corporate to appoint a managing agent, and to delegate to him or her some or all of its powers, authorities, duties and functions. Another element is that s 78(1AA) required any such managing agent to be the holder of a strata managing agent's licence. 127The case appears to have been argued on the basis that BBA was not the holder of a strata managing agent's licence. I will proceed on that assumption. 128A promise to do an illegal act cannot be valid consideration: Kearney v Whitehaven Colliery Company [1893] 1 QB 700 at 713 per Lopes LJ; cited with approval in Carney v Herbert [1984] 3 NSWLR 85 at 90 per Lord Brightman; Aravco Ltd v Qantas Airways Ltd (1995) 132 ALR 419 at 427 per Sheller JA (Powell JA agreeing) (reversed by the High Court on unrelated matters in Qantas Airways Ltd v Aravco Ltd (1996) 185 CLR 43.). I will assume without deciding, that a consequence of s 78 Strata Titles Act is that an entity that is not the body corporate (such as BBA) could only engage a person to perform tasks that fell within the powers, authorities, duties or functions of a body corporate if the person who was engaged was appropriately licensed. Even on that assumption, BBA could perform its obligations under the Occupancy Agreement, to the extent that they required performance of tasks of a kind that could be performed by a strata managing agent, by engaging an appropriately licensed person. The contention that BBA's promises were illegal is not made out. 129I see no reason to doubt the judge's conclusion that BBA gave consideration to Mr and Mrs Evans for the option in the Occupancy Agreement. PART E - RESTRAINT ON ALIENATION? 130One prayer for relief in the court below sought a declaration that the Respondents "are bound not to sell, transfer or otherwise dispose of the Unit otherwise than pursuant to the provisions of the Buyback Deed dated 30 September 1987." The judge declined to make that declaration on the basis that the Buyback Deed imposed an invalid restraint on alienation. Whether he was correct in so doing raises a question that is independent of whether the option under the Occupancy Agreement has been effectively exercised and can now be a source of curial relief. 131In the court below it was also argued that, regardless of whether an adequate notice of exercise of the option had been given, and regardless of whether any contract arising from the giving of notice of exercise of the option had been abandoned, the option conferred by the Occupancy Agreement was unenforceable by reason of the law concerning restraints on alienation. The primary judge upheld that contention. He held that the invalidity of the option in the Occupancy Agreement provided an independent reason for the failure of BBA's claim that it had validly exercised the option. 132The finding that the options in both deeds are invalid restraints on alienation is disputed on this appeal. The findings that I have made so far are sufficient to establish that the purported exercise of the option in the Occupancy Deed is ineffective. The question that has not yet been answered is whether the Respondents remain bound by the Buyback Deed. This question is closely connected with the question of whether the Occupancy Deed involved an invalid restraint on alienation. Bearing in mind the remarks in Kuru at [12] it is desirable to consider the questions that have been raised concerning whether the option in the Occupancy Agreement was an invalid restraint on alienation. 133Deciding whether the options are void, and the restriction on transfer in the Buyback Deed continues to bind the Respondents, requires consideration of some of the provisions of the Occupancy Agreement not yet mentioned, as well as the provisions of the Buyback Deed. Provisions of Occupancy Agreement Not Earlier Set Out 134Under Clause 2 of the Occupancy Agreement Mr and Mrs Evans gave the following covenants: (f) Not to lease, sub-lease or part with or share the possession of the Unit PROVIDED THAT this shall not prevent relatives or friends of the occupant living with the occupant from time to time for periods not exceeding twelve (12) months. (g) Not to mortgage, charge or encumber or otherwise deal with or dispose of any estate or interest in the Unit without the prior consent in writing of the Service Company which consent will not be unreasonably withheld in respect to a mortgage on terms and conditions which are not inconsistent with the provisions hereof and which inter alia prohibit the mortgagees right in the event of default from dealing with the property other than by sale to a Qualified Occupant and in accordance with the provisions of Clause 6 of this agreement as though the Mortgagee were the Proprietor therein referred to." 135It is convenient to set out more fully than I have previously done the provisions of Clause 7: "The Occupant and the Proprietor covenant with the Service Company that the right of the occupant to reside at the Bondi Beach Astra, to the communal areas and occupy the unit shall cease and determine on the happening of any one or more of the following events and the right granted to the Service Company pursuant to Clause 8 hereinafter appearing shall arise upon the happening of any one or more of the following events:- (a) If the Occupant shall not qualify as a Qualified Occupant for any reason including without limiting the generality of the foregoing:- (i) if the Occupant shall die; (ii) if the Proprietor sells or disposes of any interest in the Unit; (iii) if it is ascertained that there has been a material failure to disclose any information relevant to a determination by the Service Company as to whether the occupant constitutes a Qualified Occupant. (b) If the Occupant or the Proprietor without the prior consent in writing of the Service Company (which consent subject to clause 2(g) hereof may be withheld by the Service Company notwithstanding any express provision in any statute to the contrary or may be granted subject to the observance or performance of such specified conditions as the Service Company think fit) shall make any agreement written or orally expressed or implied with any person purporting to lease or otherwise part with possession of the Unit or to grant any licence affecting the Unit or mortgage, charge encumber or otherwise deal with or dispose of any estate or interest in the Unit. ... (h) If the Occupant or the Proprietor becomes bankrupt or makes any arrangement or composition with his creditors generally. (i) for any reason whatsoever (except under circumstances where the Service Company has knowledge that the Occupant or Proprietor might reasonably be expected to resume occupancy) the unit has been unoccupied by the Occupant for a period of six (6) continuous months without permission of the Service Company which permission shall not be unreasonably withheld; (j) the Proprietor or any Mortgagee has sold transferred and or attempted to sell or transfer the Unit otherwise than in accordance with this Agreement." 136Other circumstances in which Clause 7 is operative relate to: when the Occupant or Proprietor fail to observe any material provision of the agreement; in certain circumstances where offensive or unneighbourly conduct occurs; failure to pay money that is due; the Occupant becoming a person whose estate is liable to be dealt with under the law relating to mental health; or become a permanent patient in a nursing home or hospital. The Buyback Deed 137The Buyback Deed was made between the same parties as the Occupancy Agreement. It recited: "A. The Proprietor is registered or entitled to be registered as the proprietor of the unit. B. The Proprietor acknowledges that he shall not sell, transfer or otherwise dispose of his unit otherwise than pursuant to the provisions of this Deed (hereinafter referred to as 'The Buy Back Deed')." 138A definition provided: "'The Proprietor' - means and includes the said CLIFFORD EVANS and DOROTHY EVANS and his/her or their executors, administrators and successors in title being the registered Proprietor who is registered or entitled to be registered as the Proprietor of the unit or any Mortgagee who has granted a Mortgage to the Proprietor." 139The operative provisions of the Buy Back Deed included: "1. The Proprietor shall not sell, transfer or otherwise dispose of his unit otherwise than pursuant to this Deed and the following procedures shall apply to such a sale or transfer:- (a) The Proprietor shall give to the Service Company one month's notice in writing of his intention to sell, transfer or otherwise dispose of his unit. Such notice once given shall not be withdrawn or revoked without the consent in writing of the Service Company. (b) Upon the expiration of the said period of one month referred to in Clause 1(a) the Proprietor or the Service Company shall have the option by notice in writing (hereinafter called 'the Buyback Notice') served upon the other no later than a further twenty-eight (28) days thereafter to require the Transfer by the Proprietor to the Service Company or its nominee of the unit for the price of One Hundred and Seven Thousand Dollars ($107,000.00) whereupon the following terms and conditions shall apply: (i) The parties shall upon the service of the Buyback Notice by either on the other be deemed to have entered into an agreement upon the same terms and conditions as are contained in the standard Agreement for Sale of Land - 1986 Edition with the following alterations, omissions and additions thereto:- (aa) clause H shall be amended so that the 10% deposit is payable by the Service Company to the Proprietor or his solicitor as stakeholder. (bb) clause K shall be amended so that vacant possession is given as at the date of completion. (cc) the special conditions which are special conditions 3(a), 5 and 10 of the Agreement entered into by the Proprietor in his Contract with CG Maloney Pty Ltd for the purchase of the unit and Clause 3(a) and 3(b) of this Deed shall become conditions of the Agreement. (dd) there shall be attached to the Contract pursuant to s 52A(2)(a) of the Conveyancing Act 1919 the documents or copies of the documents referred to in the Fourth Schedule in the Standard Agreement for Sale of Land - 1986 Edition. (ee) within fourteen (14) days of the service of the Buyback Notice the parties shall exchange formal written Agreements containing the above terms and conditions. (c) The Occupant and the Proprietor hereby acknowledge that the rights conferred on the Service Company or its nominee pursuant to this Clause 1 hereof constitutes an interest in land entitling the Service Company to register a Caveat against the folio of the Register in the Land Titles Office relating to the unit.

Should for any reason neither the Proprietor nor the Service Company serve on the other of them the Buyback Notice referred to in Clause 1(b) of this Deed then the Proprietor may sell, transfer or dispose of the unit to any purchaser who is a Qualified Occupant PROVIDED THAT the Proprietor procures such Purchaser to enter into an Occupancy Agreement with the Service Company on the same terms and conditions as the Occupancy Agreement entered into by the proprietor upon his purchase of the unit and procures such Purchaser to include the following covenant in such Occupancy Agreement:- 'The proprietor may sell, transfer or dispose of the Unit to any purchaser who is a Qualified Occupant PROVIDED THAT the purchaser enters into an Occupancy Agreement with the Service Company on the same terms and conditions as this Occupancy Agreement'.
(a) Upon the sale or transfer of the Unit to the Service Company or its nominee by either the Proprietor or by any Mortgagee thereof the following payments shall be made by or on behalf of such Proprietor to or deducted by the Service Company on completion of the sale or transfer thereof:- (i) All costs, fees and expenses paid or incurred by the Service Company in connection with the sale and transfer of the Proprietor's unit including any reasonable costs of repairs or refurbishment payable to or by the Service Company to be reasonably payable to restore the Unit to its condition existing at the date of its original purchase by the Proprietor. (ii) All other moneys owing by the Occupant or the Proprietor to the Service Company or The Body Corporate whether pursuant to this Occupancy Deed or otherwise. (b) The Proprietor hereby charges the Unit with the payment of all sums of money referred to in clause 3(a) hereof and hereby acknowledges that the charge herein created constitutes an interest in land entitling the Service Company to register a Caveat against the folio of the Register in the Land Titles Office relating to the Unit." 140As seen above, clause 1(b)(i)(cc) of the Buyback Deed incorporates by reference the special conditions of the contract under which Mr and Mrs Evans purchased the unit. Those special conditions relate to investment of the deposit pending completion and entitlement to the deposit upon default, a limitation on requisitions by the purchaser concerning water, sewerage, drainage, electricity, telephone and other services, and an acknowledgment that 21 days is a sufficient time for a notice to complete. The Law Concerning Restraints on Alienation Predecessors to Hall v Busst 141The single most important authority on the present Australian law concerning restraints on alienation is the decision of the High Court in Hall v Busst (1960) 104 CLR 206. However, understanding of that decision is assisted by considering the source material upon which it drew, and some other cases that preceded it. Coke on Littleton 142Coke on Littleton has been repeatedly cited in the centuries since it was written as stating correct principles concerning the law on restraints on alienation. It takes the form of the text of Littleton's treatise on tenures, with extensive notes by Coke on each section of Littleton's text. This method of organisation was adopted notwithstanding that Littleton and Coke wrote more than 140 years apart - t he first publication of Littleton's text is put in Butler's introduction to the 18 th edition of Coke on Littleton (1823) p xxiii as being in 1481 and the first edition of Coke's commentary appeared in 1628. In the meantime there had been considerable changes in English land law, not least because of the enactment in 1535 of the Statute of Uses , and in English social conditions. Coke sought to explain and adapt the late medieval law expounded by Littleton to the more modern conditions of the seventeenth century. This explains some of the differences between the portions of the text attributable to Littleton, and those attributa ble to Coke. 143In the following quotations from Littleton and Coke I will modernise the spelling, without any indication of where that modernisation has occurred. 144Littleton said, at s 360, 223a : "If a feoffment be made upon this condition, that the feoffee shall not alien the land to any, this condition is void, because when a man is enfeoffed of lands or tenements ... he hath power to alien them to any person by the law. For if such a condition should be good, then the condition should oust him of all the power which the law gives him, which should be against reason , and therefore such a condition is void." (emphasis added) And at s 361, 223a: "But if the condition be such that the feoffee shall not alien to such a one, naming his name, or to any of his heirs or of the issues of such a one, or the like, which conditions do not take away all power of alienation from the feoffee, then such condition is good." (emphasis added) 145Three things should be noted about these passages. First, the only circumstance that Littleton identifies as resulting in voidness concerns a feoffment made on condition. A feoffment is a grant of the fee simple of land, and a condition in a feoffment (which in this context clearly means a condition subsequent) identifies a circumstance in which the land granted will revert to the grantor, or pass to some alternative grantee. Second, it is not very clear what is meant by a condition that deprives a feoffee (the person to whom a feoffment is made) of "all the power" of alienation. Literally, it would mean that the grantee is deprived of every aspect of the power of alienation - yet it is contrary to the drift of the thought in the passage that Littleton is intending to allow the possibility that a condition that left the grantee with a very circumscribed power of alienation could be valid. It may be that he is saying that a person who is enfeoffed has a power to alienate to any person, and if that power is encroached on in any way he is deprived of " all the power" , in the sense of the full extent of the power, that the law has given him. Yet that reading is not consistent with Littleton allowing that a condition prohibiting alienation to a specific person does not take away " all the power" . Third, insofar as a rationale is provided for the condition being void, it is that the condition is "against reason" . 146Coke's notes on Section 360 of Littleton, at 223a go considerably further than Littleton's original text, concerning the type of property to which the law on restraints on alienation applies, the type of legal transaction for passing property rights to which it applies, and the rationale for that law. Coke says: "... the like law is of a devise in fee upon condition that the devisee shall not alien, the condition is void and so it is of a grant, release, confirmation or any other conveyance whereby a fee simple doth pass. For it is absurd and repugnant to reason that he, that hath no possibility to have the land revert to him, should restrain his feoffee in fee simple of all his power to alien. And so it is if a man be possessed of a lease for years, or of a horse, or of any other chattel real or personal and give or sell his whole interest or property therein upon condition that the donee or vendee shall not alien the same, the same is void, because his whole interest and property is out of him, so as he hath no possibility of a reverter, and it is against trade and traffic and bargaining and contracting between man and man: and it is within the reason of our author that it should ouster him of all power given to him." (emphasis added) Coke then states a series of Latin maxims that mean: "It is not just that freemen should not have the free disposal of their own property. Everyone is the moderator and arbiter of his own affairs. Ordinarily an agreement that I shall not alienate my own property is not binding." 147Coke went on at 223a to contrast the situation of a restraint on alienation imposed at the time of grant of a right concerning property, with the situation concerning restraints that a person imposes upon the alienation of property that he or she already owns: "But these are to be understood of conditions annexed to the grantor's sale itself in respect of the repugnancy and not to any other collateral thing, as hereafter shall appear." Coke than notes that it is not just concerning feoffments of a fee simple that the principles of restraint on alienation applies: "Where our author putteth his case of a feoffment of land, that is put but for an example: for if a man be seized of a seigniory, or a rent, or an advowson, or common, or any other inheritance that lyeth in grant, and by his deed granteth the same to a man and to his heirs upon condition that he shall not alien, this condition is void." 148He considers, and rejects, the possibility that the doctrine of restraint on alienation applies only to a grant of an item of property that the transferor already holds, and not to a conveyancing transaction that creates a new item of property: "But some have said that a man may grant a rent charge newly created out of land to a man and to his heirs upon condition that he shall not alien that, that is good, because the rent is of his own creation; but this is against the reason and opinion of our author, and against the height and purity of a fee simple." That is because, for Coke, the vice of the restraint against alienation lies in a grantee not being able to dispose of that which becomes his own through the grant, rather than in the grantor attaching the restraint to something that is already his own at the time of the grant. 149It is important for Coke that it is upon the grant of a right concerning property that the restraint on alienation is imposed upon it - it is permissible for a person who already has an estate in an item of property to agree to a restraint on its alienation. He continued at 223a: "If A be seised of Black Acre in fee, and B infeoffeth him of White Acre upon condition that A shall not alien Black Acre, the condition is good, for the condition is annexed to other land, and ousteth not the feoffee of his power to alien the land whereof the feoffment is made, and so no repugnancy to the estate passed by the feoffment; and so it is of gifts, or sale of chattels real or personal." 150Another place where Coke contrasts a feoffment in fee simple upon a condition with a contractual covenant against alienation is in the notes to s 334 at 206b: "If a man make a feoffment in fee upon condition that he shall not alien, this condition is repugnant and against law, and the estate of the feoffee is absolute ... . But if the feoffee be bound in a bond, that the feoffee or his heirs shall not alien, this is good, for he may notwithstanding alien if he will forfeit his bond that he himself hath made. So it is if a man make a feoffment in fee upon condition that the feoffee shall not take the profits of the land, this condition is repugnant and against law, and the estate is absolute. But a bond with a condition that the feoffee shall not take the profits is good." There is an unclarity in this passage, which creates an important difficulty in understanding the author's meaning. Coke is not at all clear about whether the valid bond he is talking about is one that is taken at the same time as the transfer of the property to which it relates and the transfer would not have taken place without the bond, or whether he is talking about a bond entered after the property has been transferred. 151Elsewhere in Coke on Littleton one finds some explanation of what Coke means by being "against reason" . In section 138 Littleton says that if a particular requirement of the law of real property did not apply it "would be inconvenient, and against reason" . Coke explains that at 97b: "'And against reason'. And this is another strong argument in law, Nihil quod est contra rationem est licitum [nothing that is against reason is lawful]; for reason is the life of the law, nay the common law itself is nothing else but reason; which is to be understood of an artificial perfection of reason, gotten by long study, observation, and experience, and not of every man's natural reason; for, Nemo nascitur artifex [no man is born skilled]. This legal reason est summa ratio [is the height of reason]. And therefore if all the reason that is dispersed into so many several heads, were united into one, yet could he not make such a law as the law in England is; because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience growne to such a perfection, for the government of this realm, as the old rule may be justly verified of it, Neminem oportet esse sapientiorem legibus [nobody needs be wiser than the laws]: no man out of his own private reason ought to be wiser than the law, which is the perfection of reason." 152Similarly, in his notes at 319b Coke quotes Latin maxims that translate as: "The law does not require anything that is vain and useless. Law is the highest reason which commands those things which are useful and necessary, and forbids what is contrary thereto." 153Even though for Coke the law embodies the sort of reason that he invokes, when he says that something is the law because for it to be otherwise would be " against reason" , he is intending to do more than make the circular statement that something is the law because it is the law. 154There are two separate strands in the justification that Coke gives for the law's prohibition of restraints on alienation. One is that it is inconsistent for a person to grant away all his interest in property but then seek to restrain what is done with the property thereafter. A.W.B. Simpson, An Introduction to the History of the Land Law , (1961) Oxford University Press says at 85: "In the 14th century it was settled, in accordance with the policy underlying Quia Emptores , that a general restraint upon alienation of a fee simple was bad". The same author says, at 184 : "... at common law once a fee simple tenant had alienated his fee simple he has exhausted his power of alienation; thus a feoffment 'to A and his heirs, but if A marries B, to C and his heirs' confers a fee simple on A but is void as regards C, for having given a fee simple to A the feoffor has nothing left to give." See also A.D. Hargraves & B.A. Helmore, An Introduction to the Principles of Land Law (New South Wales) , (1963) Law Book Company, p 95. The fundamental rule of medieval conveyancing that it was not possible to limit an estate after a fee simple was alive and well in Littleton's time. By the time of Coke, the Statute of Uses had created some inroads into it, concerning shifting and springing uses that were executed by the statute, but it remained intact concerning grants that did not utilise uses. 155The "absurdity" aspect of the justification that Coke gave for the prohibition of restraints on alienation applied only concerning grants of particular types of property right. There was no inconsistency between recognising that any attempt to create a limitation after a fee simple inevitably failed, and the law's recognising that it was possible for a person with property to give someone else the practical benefit of it, but subject to what are in practical effect restraints on alienation, by adopting conveyancing devices other than a condition subsequent to a grant of a fee simple. Available conveyancing devices, even in Coke's time, for someone to part with property on terms that controlled or limited its alienability included the fee tail (though that had come to be able to be barred), successive life estates preceding a remainder, the determinable fee, the very long lease that was subject to conditions against alienation, and other devices that became available when the Statute of Uses legitimised all manner of conveyancing creativity. 156As well, there is a strand in Coke's thought that it is contrary to social wellbeing for property to be tied up ( " against trade traffic and bargaining and contracting between man and man" ), and that the law concerning restraints on alienation (like all law, in his view) is justified by being derived not only from the fact that it has been the way things were done in the past but that experience has shown that such a rule has worked well ("gotten by long study, observation and experience" , " grown to such a perfection for the government of this realm" , " useful and necessary "). This strand is not dependent on the type of document by which the restraint is imposed. J.U. Lewis, " Sir Edward Coke (1552-1633): His Theory of 'Artificial Reason' as a Context for Modern Basic Legal Theory" (1968) 84 Law Quarterly Review 330 argues that Coke's notion of law being based in reason, but a collective reason based in experience rather than the purely abstract reasoning of one person, enabled him to " translate medieval common law into modern without forcing the break between the two" (338). He argues that Coke's view of the law continues to have its effect in those areas of the law that explicitly adopt reasonableness as a criterion. Many such areas of the current law are manifestations of public policy, even though the contexts are diverse. For instance, the common law concerning what restraints of trade are permissible is dependent upon reasonableness of the covenants in question. Even the criminal law uses the criterion of reasonableness, with "reasonable suspicion" being a requirement of a valid arrest and the reasonableness of the response being part of the defence of self-defence. For a final example, the requirement of reasonable care in the law of negligence provides the measure of the extent to which a person is required, regardless of his or her consent, to take care not to injure another. 157However, for all the respect that has been paid to Coke on Littleton in succeeding centuries, it is insufficient for deciding whether the particular restraints on alienation involved in the present case are void. Specific examples are needed to come to understand the content of what is " against reason" , so far as attempts to impose restraints on the alienation of property are concerned. Thus I turn to particular cases that have been relied on as precedents in this area of the law. Seventeenth Century Cases 158Three seventeenth century cases have been referred to often in discussing the law concerning restraints on alienation. I will mention them, but for the purpose of explaining why they do not assist in solving the present case. 159Muschamp v Bluet (1658) Bridgman J 132; 123 ER 1253 concerned a gift by will of freehold land to A and B "upon this condition, that if they shall sell it to any man but to [C] then he to enter upon it, as of my gift, by this my will." The ultimate decision of the case was given in the Exchequer Chamber. The Exchequer Chamber decided the case as a matter of construction, that the gift conferred only a life estate on A and B (at 138, 1257). An argument of Serjeant Bridgman at 136, 1256 upon which the court ultimately expressed no opinion, has been referred to frequently (sometimes without recognising that it is an argument of counsel rather than the decision of the court): "If a feoffment be made on condition that the feoffee shall not alien, the condition is voyd, for the feoffee hath power to alien to whom he will, for if that condition were good, that would take from him the power which the law gives him, which would be against reason: but if the condition be, that he shall not alien to such a person, naming the person, or any of his heirs or his issues, this is a good condition, because it takes not away the power to alien in fee." This argument provides no extra understanding, as it is just a paraphrase of the passages from Littleton that I have set out at [144] above. 160Serjeant Bridgman rejected an argument (put on the assumption that the gift was of a fee simple) that there was no restraint on alienation because the donee was free to alienate the land to C, because (at 137, 1256): "... to restrain generally, and that he shall not alien to any but to J S is all one: for then the feoffor may restrain him from aliening to any except to himself, or such other person by name, whom he may well know cannot, nor never will, purchase the land: so that this condition shall take away all his power, and shall make a perpetuity in the feoffee, which is quite contrary to law, neither is there any authority to warrant this restraint: for Littleton leaves the feoffee at liberty to alien to any, except to such a one in particular." 161While this is a development of Littleton's thought, it is not clear whether Serjeant Bridgman in saying that the invalidity of restraining alienation to everyone except one named person is dependent on the person to whom alienation is permitted in fact being unlikely to purchase the land. If that were so, a prohibition of alienation to anyone except someone who was highly likely to purchase the land - which is the situation in the present case - might not be invalid. 162Freeman v Freeman (1691) 2 Vern 234; 23 ER 751 was a Chancery case that involved a father who settled land on his son in tail, and took a bond from him that he should not bar the entail. That son's son had suffered a common recovery, and devised the land to the plaintiff and her heirs. The plaintiff, who was the executor of the donor's grandson (who had barred the entail) sought to be relieved against the bond. The court declined to relieve, on the basis that if the son had not given the bond, the father might have made him only a tenant for life. 163Correspondingly here, it seems likely that if Mr and Mrs Evans had not agreed to enter the restrictions on alienation, CGM would not have sold the unit to them at all. However, it is not clear from the report what jurisdiction of Chancery was being invoked in Freeman v Freeman . It may have been the jurisdiction of Chancery to relieve against penal bonds. That jurisdiction proceeds on the presupposition that the bond is valid at common law, and equity's exclusive jurisdiction must be invoked if it is to be set aside. The point does not seem to have been taken expressly that the bond was void at common law. Equity had a jurisdiction from the early 19th century to order delivery up and cancellation of documents that were void at common law (R. Meagher, J.D. Heydon and M.J. Leeming, Meagher, Gummow and Lehane's Equity Doctrines & Remedies , 4th edition (2002) [27-010]-[27-020]), but I am not aware of that jurisdiction being established in the late 17th century. Thus it is far from clear that Freeman v Freeman is a case relating to the common law concerning restraints on alienation. 164Jervis v Bruton (1691) 2 Vern 251; 23 ER 762 concerned a man who settled land on his daughter and the heirs of her body, with remainder to his own heirs. The settlor took a bond from the daughter not to commit waste. When the daughter married the plaintiff the land was settled in trust to the use of the plaintiff and his wife for life, to the use of their heirs begotten by the plaintiff, and in default of such issue to the heirs of the plaintiff. The plaintiff's wife died without having had any issue. The wife during her lifetime had levied a fine, and afterwards committed waste. When there was an attempt to enforce the bond, the court said it was "an idle bond" , and ordered it to be delivered up and cancelled. That was ordered on the basis of Poole's Case , cited in Tatton v Mollineux , ((1610) Moore KB 810; 72 ER 920, a decision of Lord Chancellor Ellesmere) "where a recognisance conditioned that the tenant in tail should not suffer a recovery, is decreed to be delivered up, as creating a perpetuity." 165While Jervis v Bruton did not involve a restraint on alienation, a bond not to commit waste had a similar effect, in preventing a person from dealing as they will with their own property. However, Jervis v Bruton appears to have been based on the law concerning perpetuities, not the law concerning restraints on alienation. While the law concerning perpetuities has as one of its objectives preventing property from being tied up for unduly long periods of time, it is different to the general law concerning restraints on alienation. Once a grant to A to the use of B to the use of C had been recognised as creating a trust in favour of C, unrestrained creation of equitable future interests had become possible. According to Simpson, op cit , p 211 it was to restrict equitable future interests that Lord Nottingham invented the ancestor of the modern law against perpetuities in Howard v Duke of Norfolk (1681) 3 Cas in Ch 1. Lord Nottingham's version of the rule required an interest, whether legal or equitable, to necessarily vest within the lifetime of a person in existence at the time of the grant or settlement. Decisions in the 18th century added 21 years plus the gestation period to that length of time. 166Cruise, A Digest of the Laws of England Respecting Real Property , 4 th ed (1835) vol 2, p 6-7 summarises how these cases had come by 1835 to be regarded. He says at [29]-[33]: "Lord Coke says, although a condition repugnant to the nature of the estate granted is void; yet that in all such cases a bond by which the obligor is retained from doing that which the nature of the estate granted entitled him to do will be good. Thus if a feoffee in fee becomes bound in a bond not to take the profits of the land, or not to alien the estate, such a bond would be good. And the same law was held by the Court of Chancery in the following case. [ Freeman v Freeman 2 Vern 233] A father settled lands upon his son in tail, and took a bond from him that he would not dock the entail. On a bill to be relieved against this bond, the court held it good; because if the son had not agreed to give the bond, the father might have made him only tenant for life. This doctrine appears extremely questionable, as it offers an obvious mode of restraining a person from those rights over an estate which the common law gives him; consequently of frustrating the common law, as fully as if a condition of this kind were allowed to be inserted in a conveyance of land; and in some cases it appears not to have been allowed. [ Poole's case , Moo 810] Thus where an elder brother voluntarily gave land to his second brother, and the heirs of his body, remainder to a younger brother in like manner; and made each of them enter into a statute with the other, that he would not alien, &c; but because these statutes were in substance to make a perpetuity, they were ordered to be cancelled by the Court of Chancery, with the advice of Lord Coke. [ Jervis v Bruton 2 Vern 251] So where A settled lands on B in tail, with remainder to his own right heirs; and took a bond from B not to commit waste; the bond being put in suit, it was decreed to be delivered up to be cancelled; the court saying it was an idle bond." 167I have discussed these cases because subsequent cases dealing with restraints on alienation (including Hall v Busst ) have made some mention of them. However, for the reasons I have given, they do not assist in solving the present problem. Nineteenth and Twentieth Cen tury Cases Before Hall v Busst 168I will now consider a range of 19 th and 20 th century cases which predate Hall v Busst . These cases are relevant because they demonstrate the development of the doctrine from its early roots. Importantly, all of the following cases relate to restrictions against alienation that had been imposed by a condition in a transfer or gift of a fee simple. Moreover, many of the following cases were influenced by the concept of the restraint being repugnant to the grant. As will be seen below at [234], the High Court acceptance that public policy is the basis for the rule against restraints on alienation so far as contractual restraints are concerned, raises a question about the applicability of these cases in the context of contractual restraints. Nevertheless, these cases will be dealt with in a chronological order. 169Doe d Gill v Pearson (1805) 6 East 173; 102 ER 1253 concerned a will that devised land to two of the testator's daughters, "... their heirs and assigns for ever, as tenants in common, and not as joint tenants; upon this special proviso and condition, that in case my said daughters ... or either of them, shall have no lawful issue, that then and in such case they or she having no lawful issue as aforesaid shall have no power to dispose of her share in the said estates so above given to them except to her sister or sisters, or to their children." (174-5, 1254) 170Though Muschamp v Bluet was cited, the condition was held good. However, that conclusion seems to have depended upon the construction of the particular clause, as not conferring a fee simple, but rather conferring an estate that was itself conditional. 171Attwater v Attwater (1853) 18 Beav 330; 52 ER 131 concerned a gift by will to A, "to become his property on attaining the age of 25 years, with an injunction never to sell it out of the family; but if sold at all, it must be to one of his brothers hereafter named." Lord Romilly MR held the condition void as a restraint on alienation. He said, at 336-7, 133: "... the true construction of this clause cannot be to give a right of pre-emption to the brothers of [A]; and that if they do not purchase, the devisee may claim, whensoever he pleases. The meaning is, I think, plain, that the testator intended to impose this fetter: that if the brother will not buy, the devisee was not to be at liberty to sell the property to anyone. The question is, whether such a condition is a valid one? Notwithstanding the case of Doe d Gill v Pearson (6 East, 173), this appears to me to be a condition repugnant to the quality of the estate given. It is obvious, that if the introduction of one person's name, as the only person to whom the property may be sold, renders such a proviso valid, a restraint on alienation may be created, as complete and perfect as if no person whatever was named; inasmuch as the name of a person, who alone is permitted to purchase, might be so selected, as to render it reasonably certain that he would not buy the property, and that the property could not be aliened at all." 172This statement of the law takes the matter further than Muschamp v Bluet . As well as being a judicial statement rather than an argument of counsel, it adopts a rule that it is not possible to transfer property subject to a restriction that it can be sold only to one person. Further, Lord Romilly MR apparently did not regard the fact that the clause left the donee free to dispose of the property by a mode other than sale as a reason why the restriction was not void. The case illustrates how a restraint on alienation imposed on a person who has been given a fee simple can be void, even if the restraint is less than total. 173In re Macleay (1875) 20 Eq 186 concerned a will that left certain property to A, "on the condition that he never sells it out of the family". At 188 Sir George Jessel MR set out the passages from Littleton that I have quoted at [144] above, and said that ". .. according to Littleton, the test is, does it take away all power of alienation?" . He explained this, at 189, as: " The condition, therefore, whatever it may be must not really take away all power, either by express words or by the indirect effect of the frame of the condition" . At 189 he drew from Coke on Littleton , and from Sheppard's Touchstone 8 th edition (1826), the test for invalidity of the condition: "whether the condition takes away the whole power of alienation substantially: it is a question of substance, and not of mere form". He concluded that the condition that he was considering did not take away the whole power of alienation substantially: "Now, you may restrict alienation in many ways. You may restrict alienation by prohibiting a particular class of alienation, or you may restrict alienation by prohibiting it to a particular class of individuals, or you may restrict alienation by restricting it to a particular time. In all those ways you may limit it, and it appears to me that in two ways, at all events, this condition is limited. First, it is limited as to the mode of alienation, because the only prohibition is against selling. There are various modes of alienation besides sale; a person may lease, or he may mortgage, or he may settle; therefore it is a mere limited restriction on alienation in that way. Then, again, it is limited as regards class; he is never to sell it out of the family, but he may sell it to any one member of the family. It is not, therefore, limited in the sense of there being only one person to buy; the will shews there were a great many members of the family when she made her will; a great many are named in it; therefore you have a class which probably was large, and was certainly not small. Then it is not, strictly speaking, limited as to time, except in this way, that it is limited to the life of the first tenant in tail ..." (at 189-190) This passage is adopting the literal meaning of "take away all power of alienation." 174Jessel MR distinguished Doe v Pearson on two grounds. The first was that the number of possible alienees was more restricted in Doe v Pearson than it was in In re Macleay . The second was that in Doe v Pearson the forbidden mode of alienation was to "dispose" , "which is probably the largest term known to the law" (190). 175Jessel MR next dealt with Attwater v Attwater . The Master of the Rolls commented that Lord Romilly MR had held the condition invalid "[n]otwithstanding the case of Doe v Pearson ." Jessel MR concluded that Romilly MR had distinguished Doe v Pearson rather than declining to follow it. On this basis, Jessel MR held that Attwater v Attwater did not represent a new rule of law and therefore there was no obstacle to Jessel MR allowing the condition in In re Macleay as a limited restriction upon alienation. 176In re Macleay has been criticised by In re Rosher (1884) 26 Ch D 801, by Fullagar J in Hall v Busst , and by C. Sweet: Restraints on Alienation II (1917) 33 Law Quarterly Review 342 at 345-348. As well, as I have said, it adopts the literal meaning of "restrain all power of alienation" , which might not have been what Littleton intended. Though some cases that I will hereafter mention refer to it without criticism, the safer course is to decide the present case without relying upon In re Macleay . 177In In re Ridley; Buxton v Hay (1879) 11 Ch D 645 Jessel MR made some remarks that are significant because they were later referred to with approval by Dixon CJ in Hall v Busst . At 648-649 Jessel MR said: "In the first place, the law of this country says that all property shall be alienable; but there has been one exception to that general law, for restraint on anticipation or alienation was allowed in the case of a married woman. That was purely an equity doctrine, the invention of the Chancellors, and is, as I have said, an exception to the general law which says that property shall not be inalienable . That exception was justified on the ground that it was the only way, or at least the best way, of giving property to a married woman. It was considered that to give it her without such a restraint would be, practically, to give it to her husband, and therefore, to prevent this, a condition was allowed to be imposed restraining her from anticipating her income, and thus fettering the free alienation of her property. That ground I must assume to be correct. The result, therefore, was that the exception to the general law was in favour of married women, to enable them to enjoy their property. Then there was another rule, also invented by the Chancellors, in analogy to the common law. That was an invention of a different kind from the other, and was this time in favour of alienation and not against it. The law does not recognise dispositions which would practically make property inalienable for ever. Contingent remainders were introduced, which had the effect of rendering property inalienable. The doctrine of contingent remainders was discussed by the Chancellors, who held that a remainder depending upon what was called a possibility on a possibility was contrary to the common law. That was a wholesome rule, only it was considered that it did not go far enough. The result was that the Chancellors established this rule in favour of alienation, that property could not be tied up longer than for a life in being and twenty-one years after. That is called the rule against perpetuities. This rule, therefore, was established directly in favour of alienation: it merely carried out the principle of law that property is alienable. Similarly in the case of executory interests, the law put a limit or fetter upon the testamentary power. The theory of both rules is, however, the same, namely, that property is alienable, though it may be made inalienable to a certain extent and in a peculiar way." 178In re Rosher ; Rosher v Rosher (1884) 26 Ch D 801 concerned a will by which the testator gave his real estate to his son, his heirs, executors, administrators and assigns, subject to provisos: (1) that if the son his heirs or devisees or any person claiming through or under them desired to sell certain identified properties, the testator's widow would have the option to purchase the whole of those properties for £3,000, and a proportionate price for any part or parts thereof, (2) that if the son his heirs or devisees or any person claiming through or under them during the life of the wife wished to let property A for more than three years, the widow should have the option of renting those premises for any period exceeding three years that she desired, at the yearly rent of £25, and (3) if the son his heirs or devisees or any person claiming through or under him or them during the lifetime of his wife desired to let property B or any part of it for a longer period than seven years the widow should have the option of renting the whole of that property for any period exceeding seven years as she should desire, at a yearly rent of £35. At the time of the testator's will, and of his death, the properties that the widow was given the option to purchase were valued at "£15,000 and upwards" , and the real letting value of each of properties A and B, was "£100 and upwards per annum" (802). 179Pearson J held that the conditions were void. He held that a requirement to sell at one-fifth of the value of the property was "equivalent to a restraint upon selling at all" (810), during the widow's lifetime. Pearson J declined to follow the reasoning of Jessel MR in In re Macleay . Concerning the proposition that Sir George had drawn from Coke on Littleton and Sheppard's Touchstone , Pearson J said, at 817: "I apprehend that the meaning of the word 'substantially' is this: does it really deprive the devisee of the power of alienation, or does it only restrain it that in effect he still has the power of alienation? If the latter it is good." That is adopting the second of the meanings of "all the power of alienation" that I considered at [145] above. 180At 819, Pearson J regretted that " the learned professors of the law" had " departed from the first principle, that a condition which is repugnant to a gift is a void condition, and the exceptions have been made without any principle at all, and it is therefore perfectly impossible to say by any rule which exceptions are good and which are bad " . He declined to accept that a restraint of a power to sell could be imposed, on the basis that it still left the donee with a power to lease or mortgage. Pearson J regarded such a conclusion as inconsistent with the Latin maxim to the effect that whenever a thing is prohibited, it is prohibited whether done directly or indirectly. Further, he rejected the suggestion that a condition absolutely restraining alienation is good if there is a limitation as to time. At 821-2 he rejects a suggestion by Preston (an editor of Sheppard's Touchstone ) that a restraint for a reasonable time is permissible. The rejection is on the basis that the criteria for deciding reasonableness are themselves uncertain. Pearson J, at 823, regarded the matter as covered by "the original rule which says that you cannot annex to a gift in fee simple a condition which is repugnant to that gift" . For analogous reasons to those that related to the restriction on the power of sale he held, at 823, that the restriction on the power of leasing was likewise invalid. 181In re Elliot; Kelly v Elliot [1896] 2 Ch 353 concerned a will that gave property to the plaintiff absolutely subject to payment of the testator's debts, and then required that if she sold a certain property she should pay the testator's brother £1,000 out of the proceeds of sale, and the testator's sister a further £500 out of the proceeds. Chitty J held that, as the condition arose only on a sale, the plaintiff was free to mortgage the realty, let it, settle it, give it by instrument inter vivos or by will free from any claim on the part of the testator's brother or sister. He held that there was no obligation on the plaintiff to sell within any particular time or at all, and that until the sale took place the brother and sister had no charge upon the real estate. The plaintiff had many ways of disposing of the property open to her, some of which (such as settlement) could achieve a result that was in many ways commercially equivalent to a sale. Nevertheless, Chitty J held that the obligation to pay the £1500 from the proceeds of sale was void: "The owner of property has as an incident of his ownership the right to sell and receive the whole of the proceeds for his own benefit. But this testator says that if the owner sells a part only of the proceeds shall belong to her, and the residue shall go to other persons. This direction is, I think, repugnant and void." (356-357) 182Crofts v Beamish (1905) 2 IR 349 is (relevantly) a decision of the King's Bench Division in Ireland. It concerned a testator who left specific parcels of land to his various sons. His will then contained a clause commencing "I direct that ..." . The direction was that if a son should be disposed to sell the interest in the land willed to him, he "shall not be at liberty to sell to any other person save one of his brothers, and that the value of his or their interest, if there should be any difference between them, should be determined by arbitration of three respectable gentlemen, and their decision as to value shall be final." That clause was held to be void. No point was taken about whether the means of ascertaining the price was insufficiently certain; rather the decision turned on it being an invalid restraint on alienation. 183Gibson J, at 356-7 (Boyd J agreeing), said that the clause: "... does not restrict the inherent power of alienation attached to the devised estates. It is not expressed to be a condition, and though the testator may have thought that his direction effectually prevented alienation outside the family, I doubt if he intended or desired that, on breach by the devisee, the estate should be defeated and the property revest in himself discharged of the limitations over. Even if the clause was a condition, the class of possible purchasers is not the family, or all blood relations, but the brothers surviving at the time are contemplated, and the condition is plainly inconsistent with freedom of disposition, not merely as to the purchasers, but as to the price, which is to be ascertained by third persons. The restriction is repugnant to the nature of the estate devised, and is void. The purchasing brothers must be alive at time of sale, and if all but one were to die, there would be no effective power of sale." 184Wright J reached the same conclusion. After referring to Attwater v Attwater , In re Macleay and Rosher v Rosher concluded, at 360: "There is thus not merely a restriction as to class (ie the brothers) to whom a devisee might sell, but on the material question of price or value, the matter is taken out of his hands in case of a difference, and left to a jury of three country gentlemen. In the history of will-making such a power of sale or restriction on alienation was never heard of - practically the power to alienate is completely taken away, and on this question I am glad to find that all the members of the Court agree that this condition is repugnant and void." 185Though the report continues with an appeal from that decision to the Irish Court of Appeal, that appeal did not relate to whether the direction was void. 186In re Cockerill; Mackaness v Percival [1929] 2 Ch 131 concerned a devise of land by will to P, subject to the proviso that if within 20 years of the testator's death P desired to sell the land, he was to give the governors of a particular grammar school the option of purchasing the land at the price of £300 per acre. The land in question was actually worth £670 per acre at the time of the testator's death. The land in question was about 22 acres. Eve J held that the condition was void, saying, at 134-5: "That the condition operates as a restriction on alienation cannot be questioned, and prima facie it is void on that ground; but inasmuch as there are cases in which partial restrictions have been held not to avoid the condition ( Doe d Gill v Pearson and In re Macleay ), it is necessary to examine the condition carefully and to appreciate its effect. It is limited in this case in its operation to a period of twenty years from the testator's death, and it operates only against alienation by sale, but it imposes a limit on the price which, in substance, compels the devisee during the period of restriction to sell to one purchaser only, for I am not going to assume that the purchaser indicated, and not the less so because in this case he happens to be a trustee for others, would refuse the offer of acquiring for £6600. something which he could immediately resell for more than double the price paid. The devisee in this case is not restrained from selling to a particular person, but from selling it to anybody but a particular person, and this, in my opinion, creates a state of facts not to be found in any reported case in which a condition imposing partial restraint has been treated as an exception to the general rule that 'the owner of property has as an incident of his ownership the right to sell and to receive the whole of the proceeds for his own benefit': see per Chitty J in In re Elliot ." He noted his conclusion is consistent with Muschamp v Bluet and In re Rosher . Saying that the conclusion is consistent with Muschamp v Bluet involves reading Serjeant Bridgman in Muschamp as not leaving open whether a restriction on sale to anyone but a particular person who was quite likely to buy the property was valid. 187In re Brown, deceased; District Bank Ltd v Brown [1954] Ch 39 concerned a will that gave certain property to the testator's sons then living in equal shares as tenants in common. A clause of the will provided that if any of the sons: "'... shall execute any assurance ... whereby ... the share of my business properties ... hereinbefore devised or bequeathed to him would or might become vested in ... any person or persons other than a brother or brothers of such son then I direct that the share of such son in my business properties ... shall be held by my trustees ...'" on certain discretionary trusts for the son and his wife and children. 188Harman J held that that clause was void. He noted, at 49: "... that the class to whom it is permissible to alienate begins with three for any one share and that the prohibition goes on not only during the joint lives of all the brothers, but during the lives of the survivors and survivor of them, and therefore a period will be reached when there are two, and then only one, and at last no person to whom any alienation is allowed." 189He concluded, at 49-50: "... that a class of this sort, which is bound to be a diminishing class, brings it about, in substance, that this is a general prohibition on alienation. It would be an extraordinary thing if no-one could postulate of any one of these brothers that he would or would not during his lifetime be able to dispose of his own share; and that it must depend on whether he outlives two of his brothers. In my view, this is the kind of restriction which the law views, or should view, with dislike. It is exactly the same kind of condition as in Attwater v Attwater , and I think that I should be at liberty to follow that decision were it necessary for me to do so, but I do not think that I need follow any case in this region, because the cases are inconsistent with one another, and I am entitled to take my own view. It is pertinent that a number of persons, as in this clause, is in essence different from a class consisting, for instance, as Sir George Jessel's did in In re Macleay , of members of the family, which he said was a large indeterminate class of people and might, of course, increase as time went on; whereas, if alienation be restricted to three or four or five persons such as brothers, the class is bound to diminish as death takes its toll of the members. I hold therefore that the restriction in clause 6 of the will is an attempt to fetter the natural qualities of the interest given, and is accordingly void and can be disregarded." 190Oliver v Oliver (1958) 99 CLR 20 is relevant for present purposes because in it Dixon CJ and Taylor J approved three of the cases I have just discussed, and because Handley JA relied on it in Wollondilly Shire Council v Picton Power Lines Pty Ltd (1994) 33 NSWLR 551, discussed below at [ 221 ] ff. Oliver concerned a will that gave: "... my Dairy Creek property for my son Norman but my son Walter Charles shall have the right to purchase such Dairy Creek property from my son Norman at £6 per acre if he so desires". Six months after the testator's death Walter served a notice purporting to exercise the option. The Dairy Creek property had been valued for probate purposes at about £14 per acre. Lowe J had held the option was void, but Dixon CJ, McTiernan and Taylor JJ upheld its validity. 191Their Honours decided, as a matter of construction of the will, that it did not confer on Norman "a full equitable estate in fee simple from which there can be no detraction of an essential quality such as the right of alienation" (23 per Dixon CJ). Rather, the will was construed as giving an equitable interest in the land to Norman subject to an interest in the nature of an option in Walter Charles, that was required to be exercised within a reasonable time. " So construed the option imposes no fetter on alienation and does not suspend the right ." Dixon CJ (Taylor J agreeing) distinguished the case before him from certain other cases, at 24: "In In re Rosher; Rosher v Rosher there was a legal devise in fee simple with a condition attached that if the devisee or any person claiming under him should ever desire to sell a named person should have a right of pre-emption at a price the will specified. It is self-evident that the right of pre-emption must operate as a restraint on the free alienation of the estate in fee simple and it is not remarkable that it was held void. The decision of Eve J in In re Cockerill; Mackaness v Percival went further than In re Rosher only in holding that such a restraint was void even if it was limited in its operations to a period of twenty years. In In re Brown (dec'd); District Bank Ltd v Brown Harman J construed the will before him as attempting to place a restraint on alienating, subject to an exception in favour of a very limited class, which restraint would operate as a condition subsequent to and not a conditional limitation upon an otherwise absolute gift, although the restraint was limited to the life of the donees. His Lordship therefore decided that the condition was void. This decision depends on the same reasoning as In re Rosher and In re Cockerill and has no relation to such a case as this. With all respect the view adopted by Lowe J does not appear well founded. The effect of the disposition was to invest Walter Charles with an election exercisable within a reasonable time to take the property on paying Norman £6 per acre and subject thereto to give an equitable estate in fee simple therein to Norman." (citations omitted) 192McTiernan J, at 26, analysed Norman's interest as being: "a determinable equitable interest; it determines upon the due exercise of the option to purchase. Subject thereto, it is an equitable interest in fee simple." Hall v Busst 193Hall v Busst (1960) 104 CLR 206 is the seminal Australian case on restraints against alienation. Accordingly it is of direct relevance to the instant proceedings. However, it is not entirely clear for exactly what propositions Hall v Busst is authority. A detailed discussion of the case is required. Hall v Busst concerned a sale of land. On the one day, the vendor and the purchaser executed both a contract for the sale of land, and a deed in which the purchaser was called the Grantor. The relevant provisions of the deed are: "3. The Grantor shall not at any time transfer, assign, set over or lease any part of the said lands (other than by way of mortgage to a banking institution) without the consent in writing of the Grantee first obtained;

For the reasons provided in [323]-[324] above, the restrictions would fall foul of the principle adopted in Attwater v Attwater ([171]-[172]) and In re Cockerill [186] that it is not possible to transfer property subject to a condition that it can be sold only to one person or one of a very narrow class of persons. A similar principle was recognised in Re Mavromates ([298]-[300]) and in In re Brown ([187]-[189]) .
As the restraints in the present case prohibit (subject to the very narrow exceptions previously mentioned) any disposition of the land, not merely a sale or some other specific type of transaction, they are restrictions more extensive than those held to be void in Attwater v Attwater , In re Rosher ([178]-[180]), In re Elliot ([181]) , Crofts v Beamish ([182]-[185]) and In re Cockerill .
The restrictions in the present case would fall foul of the observation of Jessel MR in In re Ridley; Buxton v Hay ([177]), approved by Dixon CJ in Hall v Busst that "The law does not recognise dispositions which would practically make property inalienable for ever."
That the price at which the only permitted sale can be made was always likely to be substantially below the market value of the unit means that reasoning analogous to that in In re Rosher , In re Cockerill and Grayson v Grayson ([279]-[280]), would be available to recognise that in practice the unit is made inalienable.
Unlike the option to repurchase in Blacktown Municipal Council v Doneo ([301]-[302]) , the option that is contained in the Buyback Deed in the present case prevented Mr and Mrs Evans and their successors in title from alienating the unit before the option to purchase became exercisable.
Unlike the restraint upheld in Re Permanent Trustees Nominees (Canberra) Ltd, ([303]-[304]) the relevant clauses do far more than restrict the mode of alienation of the property.
In the present case, the restrictions on alienation relate to virtually all manner of disposing land, continue in perpetuity, and are in practice highly likely to permit a sale to only one person (or its nominee). Whoever it is sold to, it will be only at a price well below the market value. Therefore the various grounds upon which Besanko J upheld clause 3 of the encumbrance in Nitschke ([293] above) are readily distinguishable.
In Nitschke , Besanko J held that clause 4 of the encumbrance was invalid because it required the purchaser to obtain from a successive purchaser an agreement to lodge a memorandum of encumbrance. This would have the effect that any sale to a successive purchaser would be at a substantial discount to the market value (see [295] above). This reason for invalidity is applicable in this case. I am obliged to follow the decision of the South Australian Full Court in Nitschke unless I think it is clearly wrong, which I do not, or the decision is distinguishable. 326I had earlier agreed with Needham J's analysis of the ratio of Hall v Busst in so far as it dealt with contractual restraints on alienation. However there is an additional theme in the majority judgments, that should be accorded respect. The contractual provision that was in issue in Hall v Busst was in fact one that was imposed simultaneously with the grantor entering the contract to purchase the land. The question that Dixon CJ posed for himself at the start of the passage of the judgment at 217-218 that I have quoted at [198] concerned whether "a bond or covenant or contract purporting to impose a total contractual restraint on alienation is void" . However, there is a theme in the passage that I have quoted that it is not possible to do indirectly what one cannot do directly. In particular, Dixon CJ suggested that it is not possible to do by a covenant entered at the time of acquiring property what one could not do by a condition in a grant. Fullagar J agreed with the reasons of Dixon CJ for concluding that the principle was the same, whether a restraint on alienation was imposed "on a transferee of a fee simple" by a condition subsequent in a grant, or by a separate contractual covenant. The passage in Cruise on which Dixon CJ relied (that I have set out at [166]) discusses the enforceability of covenants that restrain alienation only in relation to cases where those covenants are made at the time of a grant. 327Some of the cases discussed above have considered whether a relevant matter for deciding the enforceability of a contractual restraint on alienation is whether it is imposed for the purpose of restraining alienation or for a valid collateral purpose. Needham J sourced such a principle in Reuthlinger (see above at [214]) from the view of Mr Charles Sweet. While Dixon CJ cited Mr Sweet's article with apparent approval in Hall v Busst , the citation did not specifically relate to Mr Sweet's principle concerning valid collateral purpose. Nevertheless, the Court of Appeal (Street CJ, Glass and Samuels JJA) embraced Needham J's analysis in unqualified and enthusiastic terms. Subsequently, Young J in Elton v Cavill (No 2) (see above at [265]) expressed grave doubts over whether the authorities cited in Mr Sweet's article actually supported the principle for which Mr Sweet contended. All the same, his Honour adopted the principle (without apparent reference to the fact he was bound to do so by its acceptance by the Court of Appeal in Reuthlinger ). 328I am bound to follow the previous Court of Appeal in Reuthlinger unless I am convinced that is clearly or plainly wrong: Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [261]-[301]. I am not so convinced. The principle sourced by Mr Sweet may well have had a shallow root in earlier precedent. However, that a contractual restraint on alienation may be enforceable where it is imposed for a valid collateral purpose is consistent with the source of the principle in public policy. As Giles JA recognised in Moriatis (above at [310]), the free alienability of freehold estates in fee simple is not the only relevant public policy concern to contractual restraints on alienation. If a contractual restraint does indeed have a valid collateral purpose, that can provide a reason for public policy to favour its enforcement. Part of the reason for this, of course, is that public policy will be taken into account in assessing whether a collateral purpose is valid or legitimate. For example, an implicit part of the reason that Young J held that the collateral objects in Elton v Cavill (No 2) were invalid or illegitimate was because they were contrary to public policy. Conversely, Douglas J's decision in Vercorp (above at [227]) that restraints on alienation imposed in the subdivision of residential land had a valid collateral purpose (the provision of high quality housing) also clearly has a public policy aspect. Finally, I would reiterate the view that I expressed at [269] above, namely, that an if there are both legitimate and illegitimate purposes in a restraint on alienation and the clause cannot be severed, the court must decide whether, overall, the clause is contrary to public policy. 329My acceptance of the "valid collateral purpose" consideration provides a further reason why it can be a relevant matter, in deciding the enforceability of a contractual restraint on alienation, that the restraint is imposed at the time of transfer of the property in question. Consider first a situation in which a contractual restraint on alienation of property is imposed at the time of the grant of the relevant interest in land. Next, consider a situation in which the contractual restraint is imposed at a later time, when the person restrained already has the interest in land the alienation of which is restricted. It will be easier to conclude that the purpose of a contractual restraint is imposed for the purpose of restraining alienation in the former case rather than the latter. 330As Dixon CJ accepted in Hall v Busst , whether an agreement offends public policy should be decided as a matter of substance, not of form. To the extent that the public interest in free alienability of property is the applicable test, it should result in the same result being arrived at concerning a restriction that is imposed as a condition of a transfer of property as it arrives at concerning a restriction that is agreed as a matter of contract as part of a commercial transaction that includes a transfer of property. 331However, it should be recognised that some of the cases that have struck down conditions attached to a transfer of property have been based on the conveyancing rules of another age. Coke saw those rules as themselves being justified by public policy, but whether that is always so, or still so, in the twenty-first century is contestable. As Dixon CJ recognised in Hall v Busst , they are rules of law regardless of their justification. There is still a significant public interest in the free alienability of fee simple interests. Nevertheless, other matters of public interest can also bear upon whether any particular restriction should be permitted. 332If one confined attention to the nature of the restrictions alone, application of the principle that one cannot do indirectly what one cannot do directly might have led, in the present case, to a conclusion that the restraints were invalid. Such a conclusion would be consistent with the obiter remarks of Hodgson JA in Moraitis Fresh Packaging (above at [312]). Similarly if one applied the view of Gummow J in Caboche v Ramsay (above at [274]) that the validity of a contractual restraint involves a question of degree, the restraints in the present case are extreme. 333However it is not necessary to reach a conclusion about that. I have accepted that a contractual restraint on alienation can be valid if it supports a permissible collateral objective. Making provision for the aged has been encouraged by public policy at least since in 1601 the Statute of Charitable Uses included " aged, impotent and poor" among the permissible objects of a charitable gift: see J. D. Heydon and M.J. Leeming, Jacobs' Law of Trusts in Australia 7 th edition (2006) at [1021]-[1022]. For centuries charitable gifts have been exempted from laws restraining freedom of alienation, even to the extent of gifts for charitable purposes being permitted to be perpetual. 334I would have some doubt (and a strong personal protest) about whether being aged 55 or more counts in ordinary parlance as being " aged" . However, legislation to which I later refer has adopted the age of 55 as the start of being " aged" , and the general public policy that courts enforce is formed in part by reference to the policies that have been enshrined in legislation. 335The restrictive covenant on the title, requiring occupants of the Astra to be aged 55 or more, already existed at the time the Occupancy Agreement and Buyback Deed were entered. That restrictive covenant was sufficient to enable the Astra to operate as a retirement village, in the rudimentary sense of a place where people aged 55 or more lived. 336However, as the obligations of BBA in the Occupancy Agreement (para [110] ff above) show, it was intended that BBA would provide services of substantial and important kinds to the residents. Further, the provision of accommodation at a significant discount to the value that a unit would have had without the buy-back provision would assist in its being affordable for aged people. Undoubtedly, one of the purposes of including the buy-back provisions was to assist BBA to make a profit, but that is not inconsistent with the buy-back provisions being characterised, overall, as being for the purpose of the valid collateral objective of assisting in the provision of housing for aged people. That is so even if the purpose would not comply with all the requirements for a valid charitable gift. While the covenant in clause 2 of the Buyback Deed is not an option, it is there for the purpose of ensuring that BBA will always have the right to acquire the Unit on the terms of the option. It is justified by the same collateral purpose as justifies the option. 337As the primary judge pointed out at [81], there is nothing in the wording of the option in the Occupancy Agreement that restricts its successive options to the time in which the Astra is, in any sense of the term, operating as a retirement village. While that is literally true, recitals to the Occupancy Agreement ([22] above) made clear it was entered to enable a retirement village to be conducted. As well, provisions of the Occupancy Agreement other than the clause creating the option confer obligations on BBA. Those obligations are clearly designed (and in the case of clause 1(a) expressly stated) to be for the purpose of operation of a retirement village designed to be the residence of persons 55 years of age and over. 338As Giles JA recognised in Moraitis , there is a public policy that someone who agrees to a contractual restriction should be held to the agreement unless there is a good reason to the contrary. The primary judge also recognised this, and said, at [84]: "In my opinion it is outweighed by the very long-established public policy consideration favouring free alienability of freehold estates in fee simple. There are very wide fields for freedom of contract in relation to the organisation of retirement villages. The subject is regulated by statute, but within that regulated environment there is room to organise retirement villages on a way which does not leave the capital gain to those who live in them, by employing other mechanisms; contractual licences not involving any transfer of property, leases which it is well established can be made in terms which prevent their being alienated, and can be made defeasible on the death of the lessee, and the grant of freehold estates for life. The public policy relating to freedom of contract can be fully served without impinging the public policy against restraining alienation of freehold estates in fee simple." 339I do not, with respect, find this reasoning persuasive. It seeks to balance the public interest in free alienability against the public interest in freedom of contract, without according weight to provision of housing for aged persons being itself a valid collateral purpose. As well, much of the case law relating to the free alienability of freehold estates in fee simple has arisen concerning limitations on alienability that are imposed by the terms of the grant itself. Many of those cases are influenced by the concept of the restraint being repugnant to the grant, which in turn was influenced by medieval conveyancing principles about the impossibility of limiting an estate after a fee simple. The outcomes of those cases do not necessarily translate into the different universe of discourse applicable to contractual restraints on alienation, which is dependent solely on public policy. 340Clearly there is a public interest in property not being unduly tied up. However, it is an oddity of options that entering the option is itself an exercise of the owner's power of alienation (albeit in a way that is conditional), and that the entering of the option brings with it a restriction of the power of alienation thereafter, to the extent (but only to the extent) that is needed to make the grant of the option efficacious. One aspect of the free alienability of freehold estates is being able to alienate them through entering an option. There is a public interest in the owner of property being free to alienate it, but that does not mean there is a public interest in the owner of property being free to alienate the property twice, to two different people through inconsistent dispositions. 341Because the law concerning permissible restraints on alienation imposed by a contract is based on public policy, it should operate by reference to the substance of an arrangement, not its form. There are many ways in which substantially the same commercial objectives can be achieved, for both a retirement village operator and a retirement village resident, by the grant of a fee simple subject to an option to repurchase, and by other conveyancing devices not involving a fee simple plus an option to repurchase. This very fact is itself reason for doubting that there is a public policy objection to a retirement village being run on the basis that a resident acquires a fee simple, but subject to an option to repurchase. 342In all these circumstances, I am not persuaded that public policy requires the invalidity of the contract that Mr and Mrs Evans freely entered. The existence of the collateral purpose in the present case distinguishes it from Nitschke . 343That conclusion is supported by the legislation governing the operation of retirement villages, to which I now turn. The Statutory Framework 344So far as the researches of counsel and my own researches have been able to discover, the first legislative provision in this State relating to housing for aged persons was State Environmental Planning Policy No 5 - Housing for Aged or Disabled Persons , published 19 February 1982. In clause 2 it defined "aged person" as a person aged 55 years or over. The Policy applied where a proposed development was for housing for aged persons, provided that certain development standards were adhered to, and provided that certain services were available for the residents. If these conditions were satisfied, the Policy eased the planning restrictions that would otherwise exist. It said nothing about the legal basis upon which people might come to reside in housing for aged persons. 345State Environmental Planning Policy No 5 came in 1998 to be called by a softer title that said it related to " Housing for Older People and People with a Disability " . The 1998 Policy had similar objectives to the original State Environmental Planning Policy No 5, and contained a definition that "older people means people aged 55 years or over . " That Policy was repealed with effect from 31 March 2004. The analogous planning policy that replaced it, and is still current, is the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 . It creates a specialised planning regime for developments for a group that includes " seniors" , defined in clause 8 as including " people aged 55 or more years" . 346On 6 October 1989 (commencing on 30 October 1989) the Retirement Village Industry Code of Practice Regulation 1989 was made under s 75 Fair Trading Act 1987 . That regulation established a prescribed Code of Practice for the operation of retirement villages. By the time the regulation became effective, the Occupancy Agreement and the Buyback Deed had already been entered. However, Part 1 of the Code included a provision that the Code applied to existing as well as to new retirement villages. 347Part 3 of the Code, related to disclosure of information. It included a provision that the management of a retirement village must inform a prospective resident of, inter alia, "a clear explanation of the refund entitlement, if any, of a resident, if the resident or management committee terminates the resident's contract." The definition of "retirement village" in Schedule C of the Code recognised that a retirement village might be occupied by retired persons in pursuance of "the ownership of residential premises subject to a right or option of repurchase or conditions restricting the subsequent disposal of the premises" . The definition of " village rules" in Schedule C stated that such rules included " any by-laws (to which the residents are subject) in force under the Strata Titles Act 1973 . " A combination of those two definitions shows that the Code contemplated that one of the ways a retirement village might operate was by residents owning premises under the Strata Titles Act 1973 subject to a right or option to repurchase. 348The Retirement Villages Act 1989 (" the 1989 Act ") came into operation in 1989. 349Under the definitions in s 3 of the 1989 Act, a person who had attained the age of 55 years was a "retired person" . That section also defined "retirement village" , in a way that included: "... a complex containing residential premises (whether or not including hostel units) predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons in pursuance of- ... (c) the ownership of residential premises subject to a right or option of repurchase or conditions restricting the subsequent disposal of the premises; ... ... and for the right to occupy which those persons are or will be required to pay or donate money." 350The operation of retirement villages is now governed by the 1999 Act. 351Section 5(1) of the 1999 Act defines "retirement village" as: "For the purposes of this Act, a retirement village is a complex containing residential premises that are: (a) predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons who have entered into village contracts with an operator of the complex, or (b) prescribed by the regulations for the purposes of this definition." 352No regulation has been made pursuant to s 5(1)(b). 353That definition is given content by other definitions in s 4(1) of the 1999 Act. "retired person means a person who has reached the age of 55 years or has retired from full-time employment. village contract means: (a) a residence contract, or (b) a service contract, or (c) a contract under which a resident of a retirement village obtains the right to use a garage or parking space, or a storage room, in the village, or (d) any other contract of a kind prescribed by the regulations for the purpose of this definition. Note. A residence contract, a service contract and any other village contract may be contained in a single document. operator of a retirement village means the person who manages or controls the retirement village, and includes: (a) a person (other than a resident or other person referred to in subsection (2)) who owns land in the village, and (b) any other person or class of persons prescribed by the regulations for the purposes of this definition, but does not include: (c) the relevant association of a community land scheme or the owners corporation of a strata scheme, or (d) the managing agent of such a scheme, or (e) any person or class of persons excluded from this definition by the regulations." 354The definition of "village contract" is itself given meaning by the following further definitions in s 4(1) of the 1999 Act: "residence contract means a contract that gives rise to a residence right. residence right of a person means the person's right to occupy residential premises in a retirement village, being a right arising from a contract: (a) under which the person purchased the residential premises, or (b) under which the person purchased shares entitling the person to occupy the residential premises, or (c) in the form of a lease, licence, arrangement or agreement of any kind, other than a residential tenancy agreement in the form prescribed under the Residential Tenancies Act 2010 : (i) that is entered into under Division 5 of Part 10, or (ii) that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement, or (d) in the form of any other contract of a kind prescribed by the regulations, or any other right of a kind prescribed by the regulations. service contract means a contract under which a resident of a retirement village is provided with general services or optional services in the village." 355Mr DeBuse submitted that the preferable view was that if an agreement was contrary to public policy at the time it was entered it was unenforceable, rather than void or illegal. He submitted that if public policy changes between the time that an agreement is entered and the time when the question arises whether a court should enforce the agreement, it is public policy at the time of enforcement that matters. He submitted that the legislation governing retirement villages specifically recognises the permissibility of options to repurchase a place where an aged person lives in a retirement village and thus, whatever the situation might have been at the time Mr and Mrs Evans purchased their unit, there is now no inhibition to enforcing, or declaring, the rights of BBA pursuant to the Buyback Deed. 356J.D. Heydon, The Restraint of Trade Doctrine , 3 rd edition, (2008) at 278-279 sets out the status of a covenant that infringes the public policy against unreasonable restraint of trade: "Sometimes the covenant is described as 'illegal' or unlawful. However, the covenant is not illegal or unlawful in the sense of being criminal or tortious. Sometimes the covenant is called 'void'. That has been described by Lord Atkinson as 'a misuse of language', since it is not 'void at common law but merely unenforceable at law'. The expression 'unenforceable' is the most common. One way of putting the result is to say that the law treats the unenforceable covenant 'as though it had not been given'." (extensive footnotes omitted) 357I accept that those propositions are equally applicable concerning contracts that infringe the public policy concerning restraints on alienation. 358J.W. Carter, E. Peden and G.J. Tolhurst, Contract Law in Australia , 5 th edition, (2007), para [27-02] correctly point out that the differing views that have been expressed about whether a contract that contravenes a legal standard should be described as illegal, void, or unenforceable are ultimately not important: "The fact that a particular (specific) description has been chosen gives the impression that the description has a predictive value. In fact, the precise meaning of a word such as 'void' depends as always, on the context. As Windeyer J said in his dissenting judgment in Brooks v Burns Philp Trustee Co Ltd ((1969) 121 CLR 432 at 458. Cf A v Hayden (1984) 156 CLR 532 at 596): 'The words used do not matter if the actual legal result they are used to express be not in doubt or debate. But it has always seemed to me likely to lead to error, in matters such as this, to adopt first one of the familiar legal adjectives - 'illegal', 'void', 'unenforceable', 'ineffectual', 'nugatory' - and then having given an act a label to deduce from that its results in law. That is to invert the order of inquiry, and by so doing to beg the question, and allow linguistics to determine legal rights.' The approach which Windeyer J criticises has undoubtedly been used in many of the cases, and may explain some of the inconsistencies and difficulties in the law. For example, the cases give conflicting guidance on whether an illegal contract is effective to transfer proprietary rights and this is, perhaps, due to indiscriminate use of words such as 'void' to describe the contract. (See, eg [27-[21]). However, the recent cases (see Nelson v Nelson (1995) 184 CLR 538; 132 ALR 133; Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215; 143 ALR 569) emphasise that, in the final analysis, it is whether the court will assist the plaintiff that matters, not whether the description of the contract, as void, unenforceable or illegal, is accurate." 359Mr DeBuse also referred us to this Court's decision in Seidler v Schallhofer [1982] 2 NSWLR 80, at 87-90 per Hope JA. While that judgment, and the judgments of Reynolds and Hutley JJA, recognise that public policy can change from time to time, the case was not concerned with the question of whether an agreement that was contrary to public policy at the time it was entered was one that a court would enforce if the public policy had changed by the time enforcement was sought. However, in my view, if a contract was not actually illegal at the time it was made, the appropriate standard of public policy to apply is that which exists at the time the Court is asked to enforce the contract. 360Even though Mr Evans died before the 1999 Act came into operation, in determining the impact of statutory provisions on the contractual rights that are in question in the present case, it is the 1999 Act that matters. That is because Schedule 4 of the 1994 Act, containing transitional provisions, includes clause 3: "(1) An existing contract in respect of a retirement village within the meaning of this Act that is in force on the commencement of this clause is taken to be a residence contract. (2) Any other contract, agreement, scheme or arrangement in force on the commencement of this clause under which, under the former Act, the administering authority of a retirement village provides services to a resident of the village is taken to be a service contract." 361In Noon v Bondi Beach Astra Retirement Village Pty Ltd this Court held, concerning a different unit in the Astra in relation to which no Occupancy Agreement or Buyback Deed separate to the contract for sale existed, that the occupants of the unit in question were not "residents" within the meaning of the 1989 Act. That was because they: "... had the right to occupy the unit by virtue of their proprietorship. Their proprietorship came about by offering a price, acceptance of the offer, entry into the sale contract and completion of the sale contract. Upon completion the sale contract, as a source of their right to occupy the unit, was spent. It does not seem to me that it was, within the definition of a residence contract, a contract 'by which [Mr and Mrs Noon] obtain[ed] the right to occupy' the unit. They obtained the right by virtue of their proprietorship." (per Giles JA, Macfarlan JA agreeing, at [66]) 362The task the Court was performing in Noon was deciding whether a husband and wife who had purchased a unit in the Astra were a "resident" within the meaning of the legislation as it then stood, namely the 1989 Act and the New South Wales Retirement Village Industry Code of Practice . Those definitions were: " resident ' in relation to a retirement village, means a person who occupies residential premises in a retirement village under a residence contract, and includes a person who occupies such premises and who is or was the spouse or de facto partner [in the Code but not Act, (within the meaning of the De Facto Relationships Act 1984 )] of such a person." (Act, s 3(1); Code, cl 2) "' residence contract ' means a contract, agreement, scheme or arrangement by which a person obtains the right to occupy residential premises in a retirement village, and may take the form of a lease or licence." (Act, s 3(1); Code, cl 2) 363It should not be assumed without argument (that we have not had) that this aspect of the decision in Noon leads to the conclusion that the registered proprietor of a strata title unit in the Astra was not a "resident" within the meaning of the 1999 Act, particularly in light of the definition of "residence right" in the 1999 Act. In any event, the Occupancy Agreement, under which BBA agreed to provide services, may have been a "service contract" within the meaning of the 1999 Act. 364It is not necessary for us to seek further argument concerning these matters. That is because the appeal is being conducted on a basis that does not challenge the decision in the court below that s 167 of the 1999 Act is applicable. 365I have earlier set out at [57] the provisions of s 167 of the 1999 Act. The applicability of s 167 brings with it as a necessary consequence that the Astra is a "retirement village" within the meaning of the 1999 Act, and that Mr and Mrs Evans would have counted as a "resident" of the village. It also necessarily has implicit in it that BBA is the "operator" within the meaning of the 1999 Act. 366Section 167 specifically contemplates that an operator of a retirement village might hold an option to purchase residential premises from a resident. In my view that provides confirmation that the options with which the present case is concerned do not contravene public policy. While s 167 might not have been sufficient to save the provision in clause 2 of the Buyback Deed, in my view clause 2 of the Buyback Deed is a valid restraint on alienation under the general law because it is entered for a proper collateral purpose. BBA is entitled to a declaration to that effect. Orders 367Claims for relief made in paras 7 and 8 of the Notice of Appeal were abandoned at the hearing. 368In the result, BBA has failed on three of the four issues it raised. When the appeal has been necessitated by the decision in the court below being in error in one respect, the appeal has resulted in extra costs being incurred, and the appeal has to some measure succeeded, BBA should receive an order for costs of the appeal, but not the whole of the costs. The order for costs in the court below should reflect the extent to which each side has ultimately succeeded in the litigation. 369I propose the following orders:

Appeal allowed in part.
Set aside the orders made on 19 February 2010 in the court below.
In lieu thereof: (a) Declare that the Respondents are bound not to sell transfer or otherwise dispose of the Unit otherwise than pursuant to the provisions of the Buyback Deed dated 30 September 1987 between the Appellant, the late Clifford Evans, and the late Dorothy Evans. (b) Order that the Further Amended Statement of Claim be otherwise dismissed.
Order the Respondents to pay one half of the costs of the Appellant of the appeal and to have a certificate under the Suitors Fund Act . No order is made concerning the costs in the court below. 370WHEALY JA : I agree with Campbell JA and with the orders he proposes.

Bondi Beach Astra Retirement Village Pty Ltd v Gora

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