Callaghan v Merivale CBD Pty Limited [2005] NSWSC 985 | Case summary

Callaghan v Merivale CBD Pty Limited [2005] NSWSC 985 | Case summary | Zoe

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Gould v Vaggelas (1985) 157 CLR 215 Como Investments Pty Ltd (In Liquidation) v Yenald Nominees Pty Ltd (1997) ATPR 43 Kiriri Cotton Co Ltd v Dewani [1960] AC 192 David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353 Peking Palace Ltd (Tang's Restaurant) v Trizec Construction Limited (1987) 20 BCLR (2d) 161 Duchow v New York State Teamsters Conference Pension and Retirement Fund (1982) 691 F 2d 74 Save Our Suburbs (SOS) NSW Incorporated v Electoral Commissioner of New South Wales (2002) 55 NSWLR 642 Short v F W Hercus Pty Limited (1993) 40 FCR 511 Fitzgerald v Masters (1956) 95 CLR 420 Dockside Holdings Pty Ltd v Rakio Pty Ltd (2001) 79 SASR 374 Westpac Banking Corporation v Tanzone Pty Ltd (2000) 9 BPR 17521 Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 Gollin & Company Limited v Karenlee Nominees Proprietary Limited (1983) 153 CLR 455 G R Mailman & Associates Pty Ltd v Wormald (Aust) Pty Ltd (1991) 24 NSWLR 80 Mecca Leisure Ltd v Renown Investments (Holdings) Ltd (1984) 49 P&CR 12 Mobil Oil New Zealand Ltd v Mandeno [1995] 3 NZLR 114 W & R Jack Ltd v Fifield [2000] 3 NZLR 129 CASES CITED : Perri v Coolangatta Investments Proprietary Limited (1982) 149 CLR 537 Charles Rickards Ld v Oppenheim [1950] 1 KB 616 Craine v The Colonial Mutual Fire Insurance Company Limited (1926) 28 CLR 305 George v Roach (1942) 67 CLR 253 Deaves v CML Fire and General Insurance Company Limited (1979) 143 CLR 24 Johnson v Agnew [1980] AC 367 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 33 Bank Street Nominees Pty Ltd v Citipower Pty (1997) BC 9702794 Solle v Butcher [1950] 1 KB 671 David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353 Commissioner of State Revenue (Victoria) v Royal Insurance Australia Limited (1994) 182 CLR 51 Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516 British American Tobacco Australia Ltd v The State of Western Australia (2003) 217 CLR 30 Weddell v Pearce [1988] 1 Ch 26 Jennings v Credit Corp Australia Pty Ltd (2000) 48 NSWLR 709 Gerraty v McGavin (1914) 18 CLR 152 Lurcott v Wakely & Wheeler [1911] 1 KB 905 Commonwealth of Australia v Amann Aviation Pty Limited (1991) 174 CLR 64 Amann Aviation Pty Limited v Commonwealth of Australia (1990) 22 FCR 527

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2767/02 EDWARD CALLAGHAN v MERIVALE CBD PTY LIMITED JUDGMENT 1 On 17 May 2002, a Statement of Claim was filed on behalf of Pub Oz Pty Limited, as plaintiff, in which Merivale CBD Pty Limited was named as defendant. By the Statement of Claim, there were pleaded a lease dated 11 November 1993 of the premises of a hotel, known as the Wynyard Hotel at 107-113 Clarence Street, Sydney, for a term of five years from 21 July 1993 with an option to renew for a further five years; successive transfers of the interest of the lessors and successive assignments of the interest of the lessee, culminating in a transfer of the interest of the lessors to the defendant and an assignment in 1998 of the interest of the lessee, with the consent of the defendant, to Pub Oz Pty Limited; and a subsequent exercise of the option of renewal by Pub Oz Pty Limited extending the term of the lease by a renewed lease to 20 July 2003. It was then pleaded that the lease contained provisions in relation to the amount of rent payable from time to time, and by letter dated 16 March 1999 the defendant purported to review the rent in accordance with clause 6 of the lease, failing to carry out the review in accordance with the clause in that the purported review was carried out earlier than 120 days prior to the relevant date specified in the lease and was invalid, but the defendant relied on clause 6 (c) of the lease as requiring the plaintiff to challenge the review of the rent within 14 days after being notified of that review, and the defendant demanded rent calculated in a manner that was in breach of the lease. It was finally pleaded that the plaintiff had paid the rent demanded while asserting the correct rent should be determined by two licensed hotel valuers, which the defendant refused to have done, and the plaintiffs sought relief accordingly. 2 On 19 August 2003, consent orders were made substituting the present plaintiff as plaintiff and granting leave for the filing of an Amended Statement of Claim. By the Amended Statement of Claim, it was added to the pleading that on 16 April 2003 Pub Oz Pty Limited went into liquidation, and on 23 June 2003 the plaintiff, Edward Callaghan, purchased for valuable consideration from the liquidators all of the rights of the company associated with the matters pleaded in the Amended Statement of Claim. Subsequently, by a Further Amended Statement of Claim, the plaintiff alleged an assignment of the same rights of Pub Oz Pty Limited to him by the Australian Securities and Investments Commission following the deregistration of the company, reliance being placed on section 601AD of the Corporations Act 2001 (Cth). 3 For the purposes of a consideration of the claim made by the plaintiff, it is necessary to reproduce some provisions of the lease which are not free from a measure of complexity. Clause 6 of a set of annexed clauses deals with the subject of reviews of the annual rent for which the lease provides during the period from the date of its commencement on 21 July 1993 to the date of termination on 20 July 1998 and then for the ensuing period of any renewal under the option to renew from 21 July 1998 to 20 July 2003. But clause 6 does not stand alone; it has to be read with clause 5 and items 6 and 7 of the third schedule, as well, in the case of a renewal, as with clause 4. Accordingly, I must set out the relevant provisions of those clauses and items. Clause 4 contains an option of renewal in a fairly conventional form, to which has been added a proviso in the following terms: " PROVIDED ALWAYS THAT the annual rent for such further term shall be those amounts stipulated in or calculated pursuant to Item 6 of the Third Schedule and the amounts so stipulated or calculated shall be the annual rent payable by the Lessee as from the date of commencement of the renewed lease."

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Clause 6 introduces the complexities. Omitting a few provisions which do not bear on the present problem, it provides: "It is hereby expressly covenanted and declared that the annual rental hereby reserved shall be revised annually on and from the annual anniversary of this Lease until the end of the years as follows:- (a) (i) As on the dates of review of rent specified in Item 7(a) of the Third Schedule hereto whenever occurring during the term hereof the review shall be calculated by multiplying the annual rent payable immediately prior to the review date by a fraction the numerator of which is the Index Number current as at the review date and the denominator of which is the Index Number current as at the review date immediately preceding the relevant review date (and in the case of the first review date the denominator shall be the Index Number current as at the date of commencement). Whenever herein used the words "Index Number" shall mean the All Groups Consumer Price Index for Sydney published on the date to which it has last been calculated immediately prior to the relevant Rent review date (and in the case of the first review date the date of commencement) in the Australian Statistician Consumer Price Index publication and such applicable Index Number shall be deemed to be the Index Number as at such review date. … (b) At any time but not earlier than 120 days prior to each date specified in Item 7(b) of the Third Schedule hereto whenever occurring during the term hereof (each of which dates is hereinafter referred to as a "review date") or at any time thereafter the Lessor may by notice in writing to the Lessee fix the annual rent (subject as herein provided) at an amount which in the opinion of the Lessor is the market rent of the Premises as at that review date and the amount so fixed shall be the annual rent payable by the Lessee as from that review date. Any receipt for the payment of rent due on or after a review date shall not prejudice the Lessor's right to demand payment thereafter of any additional rent payable by the Lessee pursuant to the provisions of this clause. Without prejudice to the generality of this clause the Lessor shall not by reason of its failure to give notice of the rental which it proposes from the review date within any period whether specified herein or not forfeit its right to have the annual rent reviewed from the review date and the rate at which the annual rent is payable from the review date shall date back to and be payable from the review date. (c) If the Lessee considers the annual rent fixed by the Lessor pursuant to sub-clause (b) of this clause or clause 4 hereof not to be the current market rent of the Premises the Lessee may by notice in writing to the Lessor within 14 days after being notified of such rent require the annual rent to be determined by two licenced hotel valuers of the Australian Institute of Valuers one appointed by the Lessor and one appointed by the Lessee and the said valuers shall jointly determine the current market rent of the Premises upon the covenants and conditions of this Lease (or such of them as shall be applicable) and taking account of any goodwill attributable to any business carried on by the Lessee in the Premises. Before proceeding with their determination the said valuers shall agree upon and appoint an umpire (also being a member of the said Institute) and obtain in writing the acceptance of his appointment. If the said valuers are unable to agree upon a determination the current market rent shall be deemed to be one half of the aggregate of the two determinations and subject thereto if the said valuers are unable to agree upon a determination within 21 days of their appointment or within such extended time as the parties hereto may agree upon or if there shall be any dispute between the parties as to the qualifications of the valuers or either of them then the current market rent of the Premises shall be determined in manner aforesaid by the umpire who shall have due regard to any information or opinions furnished to him by the said valuers and who shall deliver his determination thereof within 28 days of the due date for determination by the valuers. The said valuers and the said umpire shall act as experts and not as arbitrators and their determination shall be final and binding on the parties hereto and the current market rent so determined in accordance with the provisions of this sub-clause shall be the annual rent payable by the Lessee in lieu of the rent fixed by the Lessor as aforesaid. The fees of the said valuers and the umpire and other costs of their determination shall unless the current market rent of the Premises as determined under this sub-clause shall be equal to or greater than the current market rent fixed by the Lessor as aforesaid (in which event all fees of the determination shall be borne by the Lessee) be borne equally by the Lessor and the Lessee unless it shall be decided as part of the determination that because of some impropriety or lack of co-operation or unreasonableness on the part of one of the parties hereto that that party shall bear the whole or some fractions [sic] of the fees in excess of one half. (d) The market rent determined as hereinbefore provided and payable by the Lessee as the annual rent after a review date or from the date of commencement of the renewed lease shall not in any circumstances be less than the amount payable by the Lessee for rent on an annual basis immediately prior thereto. (e) If the Lessee considers the annual rent fixed by the Lessor pursuant to sub-clause (b) of this clause or clause 4 hereof not to be the current market rent of the Premises and gives to the Lessor a notice to that effect pursuant to sub-clause (c) for the annual rent to be determined in accordance with that sub-clause or if the Lessee fails to accept in writing within fourteen (14) days after being notified thereof that that annual rent so fixed by the Lessor is the current market rent of the Premises the Lessee shall if requested in writing by the Lessor from the review date in addition to continuing t[o] pay the monthly rent instalments at the rate applying immediately prior to the review date pay by equal monthly instalments in advance eighty (80) per centum of the increase in annual rent sought by the Lessor and fixed in its notice to the Lessee pursuant to sub-clause (b) hereof. Immediately following determination of the rent in accordance with sub-clause (c) hereof or the increased annual rent otherwise being agreed an appropriate adjustment and payment or repayment as the case may be shall forthwith be made between the Lessor and the Lessee to ensure that as from the review date the Lessee had paid and the lessor [sic] has received the appropriate amount in respect of the annual rent as agreed between the Lessor and the lessee [sic] or otherwise as determined in accordance with sub-clause (c) hereof." 4 These provisions, of course, can only be applied by reference to the Third Schedule, items 6 and 7 of which provide: "ITEM 6 (Clause 5) ANNUAL RENT The Lessee shall pay rent as follows:- (a) ONE HUNDRED AND TEN THOUSAND FOUR HUNDRED DOLLARS ($110,400.00) per annum payable at the rate of NINE THOUSAND TWO HUNDRED DOLLARDS ($9,200.00) per month the first of such instalments to be made on the 21st day of July 1993 and thereafter on the 21st day of each succeeding month during the first two (2) years of the term hereof. (b) ONE HUNDRED AND THIRTY THOUSAND DOLLARS ($130,000.00) per annum payable at the rate of TEN THOUSAND EIGHT HUNDRED AND THIRTY THREE DOLLARS AND THIRTY THREE CENTS ($10,833.33) per month during the third year of the term hereof PROVIDED ALWAYS that the Lessor may at his option elect not to charge rent at the rate of ONE HUNDRED AND THIRTY THOUSAND ($130,000.00) per annum but instead to fix the annual rent for the said third year of the term hereof at an amount which, in the opinion of the Lessor, is the then current market rent of the premises and the amount so fixed shall subject to paragraph (b) of clause 6 be the annual rent payable by the Lessee for the third year of the term hereof. (c) The annual rent for the fourth year of the term hereof shall be the same rental as the rental payable for the third year of the term hereof, the amount of which was established pursuant to clause (b) of Item 6 hereof. (d) The annual rent for the fifth year of the term hereof shall be the annual rental calculated in accordance with sub-paragraph (a) of clause 6 hereof. If the Lessee takes a renewed lease of the Premises pursuant to the option of renewal granted herein then the annual rent payable by the Lessee for the further term shall be as follows:- (e) The annual rent payable for the first year of the further term hereof shall be the same annual rental which was payable for the fifth year of the initial term hereof. (f) The annual rent for the second year of the further term hereof shall be the annual rental calculated in accordance with paragraph (b) of clause 6 hereof. (g) The annual rent for the third, fourth and fifth year of the further term hereof shall be the annual rental calculated in accordance with paragraph (a) of clause 6 hereof. ITEM 7 (Clause 6) DATES OF REVIEW OF RENT (a) The fifth anniversary of the commencement date of this lease and during any renewal hereof on the third, fourth and fifth anniversary of the date of the renewed lease. (b) On the third anniversary of the commencement date of this lease and during any renewal hereof on the second anniversary of the date of the renewed lease." 5 What set the scene for the arguments about this aspect of the case, or at least what raised the curtain upon that scene, was the receipt by Mr Callaghan on or about 16 March 1999 of a letter of that date addressed "Mr Edward Callaghan, Wynyard Hotel, Pub Aus [sic] Pty Ltd" and headed "RE: ANNUAL REVIEW OF RENT 107 CLARENCE STREET - SYDNEY". The letter was in the following terms: "I refer to our previous telephone conversations when we discussed the annual review of rental on the above property, which is due on 21 July 1999. I note that I am yet to receive the trading figures of the Wynyard Hotel, as requested by me approximately a fortnight ago. As you are aware, Clause 6(b) of your lease states as follows '… the lessee fix the annual rent at an amount which in the opinion of the lessor is the market rent of the premises as at that review date and the amount so fixed shall be the annual rent payable by the lessee as from that review date.' Accordingly, from 21 July 1999 the rental of the above premises, as determined by us as the lessor, will increase to $260,000 pa. This calculates to $5,000 per week ($21,666.67 per month). This increase is in accordance with current market rentals of similar properties to that of the Wynyard Hotel. Should you have any queries please do not hesitate to contact me. Yours sincerely Jennifer Wilson FINANCIAL CONTROLLER "

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According to his version, she begged him to permit the objection to be made out of time on the basis that it was "not that far out of time", but he responded: "No I won't", adding that the rent was "very reasonable". It was following his conversation with Angela Frost that he instructed Jennifer Wilson to write the letter of 13 July 1999. 7 From the time of these communications insisting that rent was due and must be paid in accordance with the purported determination under clause 6(b), and rejecting the availability of any further review under clause 6(c), Pub Oz Pty Limited paid the rent demanded, the subject of its review not being raised again until 27 February 2002 when Messrs Hunt & Hunt, who had by then been consulted by Pub Oz Pty Limited, wrote referring to the purported increase of rent on 21 July 1999 from $165,000 per annum to $260,000 per annum and the defendant's assertion of 13 July 1999 that notification disputing the rental increase was required to be given within 14 days of the notification of the new rent. Messrs Hunt & Hunt pointed out that the lessor's notice was clearly issued more than 120 days prior to the review date and stated "the notice was thus invalid", even if 21 July 1999 was the correct review date. The letter also contended that the rent since 21 July 1999 had not reflected the true market value and had been paid "under the mistaken belief that the notice by Merivale was valid, and that the notice disputing the rental increase was technically given out of time". It was following the defendant's rejection of the propositions put by Messrs Hunt & Hunt that this proceeding was commenced. I should say at once that I accept the increased rent was indeed paid by reason of the mistake alleged and also a mistaken belief that it was too late under the lease to give a lessee's notification pursuant to clause 6(c) once 14 days had expired from the date of the lessor's notification. I reach this conclusion the more confidently since the verbal and written statements on behalf of the lessor were intended to induce just such beliefs in Mr Callaghan: cf Gould v Vaggelas (1985) 157 CLR 215 at 236; Como Investments Pty Ltd (In Liquidation) v Yenald Nominees Pty Ltd (1997) ATPR 43,617 at 43,619-43,620; and the authorities cited in the latter case. See also Kiriri Cotton Co Ltd v Dewani [1960] AC 192 at 204-205; David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353 at 384. 8 The first argument urged on this aspect of the case on behalf of the plaintiff is that, pursuant to item 7(b) of the third schedule to the lease, the relevant review date was not 21 July 1999 but one year later, ie. 21 July 2000. This, the submission ran, was the date identified by the opening words of clause 6(b) of the lease permitting service of a notice fixing the rent at any time "but not earlier than 120 days prior to each date specified in Item 7(b) of the Third Schedule". The only date specified in item 7(b), during the currency of any renewal of the lease, is "the second anniversary of the date of the renewed lease". In the ordinary use of the English language, an "anniversary" of a date or event is "the date on which [the] event took place in a previous year": The New Oxford Dictionary of English (1998). Thus, the lease having been renewed on 21 July 1998, the first anniversary of its date was 21 July 1999 and the second anniversary of its date was 21 July 2000. This is how Lambert JA (with whom Anderson JA agreed) understood the word "anniversary" in the context of the term of a lease, while pointing out that "[a]n anniversary is associated precisely with a period of one year, usually in the sense of a recurring one-year interval", in Peking Palace Ltd (Tang's Restaurant) v Trizec Construction Limited (1987) 20 BCLR (2d) 161 at 164. That decision was cited together with Duchow v New York State Teamsters Conference Pension and Retirement Fund (1982) 691 F 2d 74 at 79 in Save Our Suburbs (SOS) NSW Incorporated v Electoral Commissioner of New South Wales (2002) 55 NSWLR 642 at 656 where the "first anniversary" of the registration of a political party was accepted as being the date one year later than the date of its registration. But the trouble with counsel's argument, as applied to this lease, is that it would introduce both contradictions and absurdities into the construction of the document. Clause 6 of the lease commences by providing that "the annual rental hereby reserved shall be revised annually on and from the annual anniversary of this Lease until the end of the years", and then provides, in paragraphs (a) and (b), that the dates of review shall be those specified in item 7(a) and item 7(b) of the Third Schedule. But the covenant to pay rent in clause 5 requires it to be paid "at the times and in the manner set forth in item 6 of the Third Schedule", to which also the proviso in respect of a renewal makes special reference in clause 4. Item 6, in separate paragraphs, details the rent payable year by year, specifying each year during which a revised rental will apply and whether that revision will be a revision referred to in item 7(a) or item 7(b). It will be appreciated that the difference between item 7(a) and item 7(b) is the difference between a review in accordance with clause 6(a) of the lease and a review in accordance with clause 6(b) of the lease (it is necessary to note at this point that both clause 6 of the lease and item 6 of the Third Schedule, rather confusingly, have a number of paragraphs, lettered (a) to (e) in clause 6, and (a) to (g) in item 6 - the reader needs to take care to avoid mistaking a paragraph of item 6 for a paragraph of clause 6). When, then, attention is paid to the terms of item 6 of the third schedule, it becomes apparent that the first review under clause 6(a) of the lease will establish the rent for the fifth year of the original term of the lease (see item 6(d)), and the next review of this kind will establish the rent for the third year, followed by the fourth and fifth years, of a further term of five years in a case where the option of renewal has been exercised (see item 6(g)). Similarly, reviews under clause 6(b) of the lease will establish the rent payable "during the third year of the term" of the original lease (see item 6(b)) and "for the second year of [a] further term" (see item 6(f)). Plainly, when each of the years referred to in item 6 is matched with the provisions of item 7, in every case, the "anniversary", if the word is used in accordance with its ordinary meaning, referred to in item 7 must be one year later than the date of the commencement of the year during which the reviewed rent is to be payable! But there will be no difficulty if the writer thought of the date of the lease, and also of the date of the renewed lease, as being the first anniversary of each document, so that what in normal parlance would be the first anniversary would, in his use of language, be the second. On any other basis, item 6 and item 7 are in direct conflict, and item 7 would involve an absurdity insofar as a rent would be payable for a period of a year, during each year to which the item applies, but would not be fixed until the end of that year. A further absurdity would be involved in the fifth year insofar as the lease would provide for a procedure being undertaken to establish a rental at a time when the lease had expired. 9 It is an outdated approach to interpretation which, in such a case as this, would pedantically insist upon the dictionary meaning of the word "anniversary" in defiance of the context: see Short v F W Hercus Pty Limited (1993) 40 FCR 511 at 517-520. The modern approach also enables the Court to go beyond moulding the choice of words or syntax involved in the drafting of the document (see Fitzgerald v Masters (1956) 95 CLR 420 at 426-427) so as to correct errors, even if their nature may not be precisely identifiable, which may have caused the document to be "lacking in commercial common sense": Dockside Holdings Pty Ltd v Rakio Pty Ltd (2001) 79 SASR 374 at 378, per Williams J, with whom Olsson and Duggan JJ agreed. Dockside Holdings is an interesting example of a case where the Court felt able, not merely to read a word, in the light of its context, in a special sense, but actually to reformulate a provision in order to make it accord with the sense the Court inferred to have been intended. Williams J placed particular reliance on Westpac Banking Corporation v Tanzone Pty Ltd (2000) 9 BPR 17521; Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749; and Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896. Although the nature of the error was more complicated in Dockside Holdings than the error which I infer occurred here, the summary statement of the problem by Williams J at 386 would be equally applicable to that with which I have to deal. His Honour said: "The difficulty in the present case is that words have not been used in a natural and ordinary way."

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The views Lord Steyn and Lord Hoffmann had expressed in that case were repeated by Lord Hoffmann (with the concurrence of Lord Hope of Craighead and Lord Clyde) in Investors Compensation Scheme Ltd v West Bromwich Building Society at 912-913. The whole passage is too long for quotation, but the following part of it is peculiarly apposite to the present case: "The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to chose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co Ltd v Eagle Star Life Assurance Co Ltd … The 'rule ' that words should be given their 'natural and ordinary meaning' reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had." 10 Applying these statements of the law to the interpretation of the lease in question, I reach the clear conclusion that the word "anniversary" has been used in this lease to refer to the day of the date of the lease, not only in each recurring year, but also in the very year in which it was executed, so that its first anniversary, understood in accordance with the way this document has been drafted, was the date of its execution and its second anniversary was the corresponding date in the next year. But so to decide is not to solve the problem set by the plaintiff's case. Even if the second anniversary of the renewed lease must be taken to have been 21 July 1999, the notice which lit the fuse to the present dispute was given one week before the earliest date that would accord with clause 6(b) of the lease. In Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd at 773, Lord Hoffmann said of a notice given pursuant to a clause in a lease permitting a significant change in the term of the lease to be effected by the service of a notice to a particular effect, that "such notices, operating, as they do, unilaterally to alter the rights of the parties, must comply strictly with the terms of the lease." Here, the notice that was relied on by the defendant to alter radically the rights of the parties (almost doubling the rent) did not so comply. 11 At this point, an unusual irony must envelop the discussion. For the defendant, which had insisted upon its right to a strict compliance by the company Pub Oz Pty Limited with a time requirement of clause 6(c), itself relied, in respect of the temporal provision of clause 6(b), on the proposition that time was not of the essence of the contract. This, of course, was in the teeth of Lord Hoffmann's dictum. 12 For a number of years, the Court's task in interpreting rent review clauses was somewhat like trying to navigate a boat through unfamiliar waters by the aid of several entirely inconsistent charts. But, more recently, appellate authority in Australia and in the English Privy Council has delineated the course. The starting point is the decision of the House of the Lords in United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 where it was held (to use the words of Lord Diplock at 930) that "in the absence of any contra-indications in the express words of the lease or in the interrelation of the rent review clause itself and other clauses or in the surrounding circumstances the presumption is that the time-table specified in a rent review clause for completion of the various steps for determining the rent payable in respect of the period following the review date is not of the essence of the contract". The terms of this statement obviously accord great weight to the individual provisions of a particular contract, as indeed, where the question is as to the meaning and effect of a contract, would be inevitable. In Gollin & Company Limited v Karenlee Nominees Proprietary Limited (1983) 153 CLR 455 at 468 Mason, Murphy, Brennan, Deane and Dawson JJ, in their joint judgment, expressed acceptance of the broad proposition stated in United Scientific Holdings Ltd v Burnley Borough Council. It was not the broad proposition, but its application to particular circumstances, which created difficulties and led to quite inconsistent decisions. Many of these decisions came up for consideration in G R Mailman & Associates Pty Ltd v Wormald (Aust) Pty Ltd (1991) 24 NSWLR 80, a decision of the Court of Appeal (Gleeson CJ, Samuels and Meagher JJA). The rent review provisions there in question are set out in the judgment of Gleeson CJ at 83-85. For present purposes, it may be noted that they included a provision (paragraph 2.02 (a)) enabling the lessor "[w]ithin sixty (60) days prior to the expiration of each period … [to] give notice in writing … to the Lessee increasing the yearly rental to an amount which the Lessor considers will be the current market rent … "; a provision (paragraph 2.02 (b)) that "[p]rior to the expiration of fourteen (14) days from the service of any such notice from the Lessor, the Lessee may, by notice in writing to the Lessor, dispute that the amount set out in the notice … is the current market rent and … shall nominate [a valuer]"; a provision (paragraph 2.02 (d)) that "[i]n the event that the Lessee does not serve notice of dispute on the Lessor within the time prescribed … the Lessee shall be deemed to have agreed that the amount set out in the notice [of the Lessor] … is the current market rent"; and a provision that if the lessor "shall fail to give notice within the period of sixty (60) days referred to [in the first provision], the Lessor may nevertheless give such notice at any time during the ensuing Review Period" whereupon the review date shall be the day following the giving of the notice. A lessor's notice was duly given, but the lessee failed to serve a lessee's notice until after the expiry of the period of 14 days. In separate judgments, in which the cases are examined in some detail, all members of the Court came to the conclusion that United Scientific Holdings Ltd v Burnley Borough Council did not enable the express provision of paragraph (d) to be overridden. As Gleeson CJ put it (at 90): "Although I do not find this an easy matter, because I regard the commercial considerations invoked by the House of Lords to be weighty, I am unable to accept that they can be taken to the length of entitling a Court to disregard, or fail to give effect to, the language of an express stipulation such as that contained in art 2.02 (d). It is one thing to treat a stipulation as to time as directory rather than mandatory. It is, however, another thing to treat a contractual provision which spells out the agreed consequence of failing to do something within a particular time as not meaning what it says."

[25]

His Honour concluded a lengthy passage at (118-120), in which he referred to Mailman as a case that was "clearly decisive", by pointing out that the Court of Appeal had there approved the dissenting judgment of Browne-Wilkinson LJ in the Mecca case. Barker J referred to a passage in the judgment of Samuels JA in Mailman (at 97) in which it had been emphasised that the lessor there was given a second chance to initiate the procedure of review but, as Barker J put it (at 120), "the same leniency was not intended by the parties to be extended to the lessee". Barker J regarded this as "a significant matter" which applied also to the case before him. He concluded (at 120): "For the reasons stated in their judgments, I prefer the unanimous decision of the Court of Appeal of New South Wales in Mailman and the dissenting judgment of Browne-Wilkinson LJ in Mecca . I am driven to the same conclusion as the Judges in those cases by holding that the parties intended that time should be of the essence, particularly when dealing with the response of a lessee to whom the contract did not give the same leniency in the matter of notice as to the lessor." 14 The decision in Mobil Oil New Zealand Ltd v Mandeno was cited to the Privy Council (Lord Browne-Wilkinson, Lord Cooke of Thorndon, Lord Clyde, Lord Hobhouse of Woodborough and Henry J) in W & R Jack Ltd v Fifield [2000] 3 NZLR 129 where, in reasons delivered by Lord Hobhouse of Woodborough, their Lordships considered a set of clauses providing for service of a landlord's notice specifying a new annual rent proposed by the landlord; for a notice by the tenant within 28 days of receipt of the landlord's notice disputing that the proposed new rent was the current market rent and requiring arbitration; and that upon the tenant's failure to give notice he should be deemed to have accepted a new annual rent specified in the landlord's notice. Lord Hobhouse said (at 133): "Two important features of this scheme must be stressed. First, the time provision governing the time within which the lessee may serve a counternotice is of the essence. ( Mobil Oil New Zealand Ltd v Mandeno [1995] 3 NZLR 114.) A late notice is non-contractual and ineffective. But, like any other time provision, the requirement may be waived by the party for whose benefit it has been inserted, here the lessor. ( Charles Rickards Ld v Oppenheim [1950] 1 KB 616.) Secondly, once the time has expired, the proposed rent becomes the contractual rent."

[26]

Since the decision of Barker J in Mobil Oil New Zealand Ltd v Mandeno was so largely based on his Honour's acceptance of the decision of the Court of Appeal in Mailman as "decisive", it seems to me that the implicit approval given by the Privy Council to Mobil Oil New Zealand Ltd v Mandeno carries with it their Lordships' approval of Mailman . 15 What these authorities establish is that rent review clauses are dichotomous in nature. On the one hand, some rent review clauses may be seen as simply establishing a machinery of review, or a series of steps to be taken to enable a review to be carried out. On the other hand, other rent review provisions may declare the consequences of default in the taking of some step, or may express the necessity to take the step, in terms which make it clear that more than machinery is involved and contractual rights and obligations may depend upon strict and timely compliance with the procedure laid down. In the former case, the whole procedure may be merely directory and a particular non-compliance may have no serious effect upon rights or obligations; in the latter case, the procedure is mandatory and time is essential, whether or not it is expressly stated to be so. Although the House of Lords gave voice in United Scientific Holdings Ltd v Burnley Borough Council to an inclination to construe rent review clauses in the former sense, they also made it clear that the language of the lease, the way its provisions operate in connection with each other and other aspects of context may well lead to a different conclusion. In subsequent cases, it has been pointed out that the contrast between lenity in one respect and strictness in another of the provisions of the lease may emphasise that the strict provisions are intended to mean what they say. 16 As I have remarked, the present case presents the unusual feature that, although the lessor has insisted upon strict compliance by the lessee, it has never itself complied with the first requirement laid down in the lease as the ground of the lessee's obligation. To adapt the metaphor of Meagher JA in Mailman, (at 99), the lessor took the first step in the "stately saraband" for which the lease provided out of time with the music, and the question is did the contractual dance ever begin? 17 The answer to this question is not to be obtained by a solemn intoning of the words of Lord Diplock in United Scientific Holdings Ltd v Burnley Borough Council. It is necessary to refer to the terms of the lease. The language of clause 6(b) does not suggest that the time limitation contained in it is unimportant machinery. It begins with the words: "At any time but not earlier than 120 days prior to each date specified … or at any time thereafter the Lessor may by notice in writing to the Lessee fix the annual rent (subject as herein provided) … and the amount so fixed shall be the annual rent payable by the Lessee …"

[27]

It is difficult to imagine any words (except perhaps the hoary words "as to which time shall be of the essence", which all the authorities say are not required) that could more clearly express the exclusion of a notice given at some earlier time. And if one leaves the clarity of the language used, in order to turn to the context for guidance, it is noteworthy that the argument which appealed to Samuels JA in Mailman (at 97) and to Barker J in Mobil Oil New Zealand Ltd v Mandeno (at 120), that the lease made an inflexibly stated time provision in the relevant respect while making a more lenient provision in another respect, is applicable to the construction of the present lease. The provisions are not the same, but the logic is the same. In the cases cited, the time provision with respect to action by the lessee was strict, but the time provision affecting the lessor was expressed in more generous terms. In the present case, the same contrast may be made with respect to the two time provisions affecting the lessor. While its notice must be given "not earlier than 120 days prior to each date specified", so long as it is not too early it may be given "at any time thereafter". The lenity of the latter provision is emphasised by the second and third sentences of clause 6(b). The second sentence ensures that any receipt of rent on or after a review date shall not prejudice the lessor's right to review the rent pursuant to the clause, and the third sentence expressly provides that the lessor "shall not by reason of its failure to give notice of the rental which it proposes from the review date within any period whether specified herein or not forfeit its right to have the annual rent reviewed from the review date and the rate at which the annual rent is payable from the review date shall date back to and be payable from the review date". So wide is the language in which the lessor's right to give a delayed notice is thus protected, indeed, that its counsel was emboldened to submit that the latter part of the clause also overrode the limitation expressed by the words "not earlier than 120 days prior". While I think this is a quite impossible construction of the paragraph (the final sentence of it that is in question is concerned with the possible forfeiture of a right to a review by failure to do anything about it, not with a premature notice which could not possibly work a forfeiture), the significant point is the contrast between the strict limit upon the period in advance of a review date at which a notice may be given fixing the market rent at that review date and the complete freedom allowed to the lessor in respect of the giving of a notice at any subsequent time. There is, of course, sound reason for limiting the period in advance of a review date as at which a notice having actual operative effect (subject only to paragraph (c)) may be given, when it is borne in mind that the lease contemplates a genuine assessment of the market rent at a future date; if that date be too far removed, the assessment could only be unreliable. 18 In my opinion, the provisions of clause 6 of the lease do not give any contractual effect to a purported notice by the lessor pursuant to clause 6(b) which is served earlier than the time specified by the lease. The same conclusion would, of course, follow if the question were considered as one of the operation of a condition precedent, but as Samuels JA made clear in Mailman (at 94-95), it is difficult to reconcile the principles applicable to a condition precedent with the law as it has been laid down in United Scientific Holdings Ltd v Burnley Borough Council. To adapt the language of Brennan J (with whom Stephen J agreed) in Perri v Coolangatta Investments Proprietary Limited (1982) 149 CLR 537 at 570 (and see also per Gibbs CJ at 545), if clause 6(b) is seen as establishing a condition, the failure of the lessor to comply with that condition affected the formation of the relevant obligation asserted against the lessee. However, to the extent that United Scientific Holdings Ltd v Burnley Borough Council holds sway, a rent review clause cannot simply be analysed by a Judge at first instance in terms of the law of contractual conditions. Nevertheless, where the lease exhibits a contrast between strict and lenient provisions, and the strict provision (as here) is expressed as a condition precedent to the imposition unilaterally of an obligation upon the other party, the principle enunciated by Lord Hoffmann, which I have cited earlier, requiring strict compliance by the lessor with the terms of the lease, cannot be left out of account in relation to the question whether the time limitation must be observed. 19 There remains, in respect of this aspect of the case, the question whether, although clause 6 of the lease requires strict compliance in the case of a lessor's notice with the limitation upon the time before which it may not be served, time should be treated in other respects as not essential. Had the lessor, by notice in writing given not earlier than the requisite time, validly fixed the annual rent under clause 6 (b), "subject as herein provided", i.e. subject to paragraphs (c), (d) and (e), would the lessee have been strictly bound by the time limit of fourteen days expressed in paragraph (c)? When this question is asked, it is important to notice that the lease in the present case contains no such provision as article 2.02 (d) of the lease in Mailman, by which a consequence of a failure by the lessee to "serve notice of dispute on the Lessor within the time prescribed in paragraph (b)" was specified as being that "the Lessee [was] deemed to have agreed that the amount set out in the [lessor's] notice… is the current market rent of the Demised Premises at the Review Date and for the following Review Period". That provision was mirrored in closely similar terms in Mobil Oil New Zealand Ltd v Mandeno and in W & R Jack Ltd v Fifield, and in all of these cases provided a strong ground for distinguishing each of them from United Scientific Holdings Ltd v Burnley Borough Council. In the absence of such a term of the contract, a provision enabling the lessee, by the service of a counter-notice within a stated period, to set in train an arbitration or expert determination of the issue of the market rent looks very much like a provision that "lays down the administrative procedure or machinery by which the fair market rent shall be ascertained", to use the language of Lord Salmon in United Scientific Holdings Ltd v Burnley Borough Council at 948. In my opinion, what Lord Diplock called (in the same case at 930) "the presumption…that the time-table specified in a rent review clause for completion of the various steps for determining the rent payable in respect of the period following the review date is not of the essence of the contract" should prevail so far as the construction of clause 6 (c) is concerned. Indeed, the language of paragraph (e), which allows in broad terms for the settlement of the question raised by a landlord's notice under clause 6 (b) by "the increased annual rent otherwise being agreed" and for the payment of 80 per cent of the increase in the rent fixed by the landlord's notice, not only where the lessee has given a counter-notice pursuant to clause 6 (c), but also "if the Lessee fails to accept in writing within fourteen (14) days after being notified thereof that that annual rent so fixed by the Lessor is the current market rent of the Premises", is consistent with the view that the strict essentiality of time is not insisted upon in this respect by the terms of this lease. 20 It follows that the defendant was in error, not only in asserting the effectiveness of a notice under clause 6 (b) that did not comply with the time limitation expressed in that provision, but also in denying the right of the lessee, under the terms of this lease, to activate the machinery of clause 6 (c) after the expiry of fourteen days from notification of an annual rent fixed by the lessor under clause 6 (b). 21 In the circumstances, I need not examine in detail the plaintiff's alternative argument that the defendant did not comply with clause 6 (b) because it did not by its notice "fix the annual rent…at an amount which in the opinion of the lessor [was] the market rent of the Premises as at [the] review date". No doubt a clause committing such a power to one party to a contract requires that power to be exercised genuinely and in good faith. In the present case, the amount inserted in the lessor's notice was decided by Mr Hemmes. He gave evidence and was cross-examined. I am satisfied, upon a consideration of the whole of his evidence and having regard to other evidence (such as that of the licensee and manager of the CBD Hotel about other hotels allegedly considered for purposes of comparison), that Mr Hemmes made no serious attempt to assess the market rent of the leased premises as at the review date, but chose a figure upon which he had determined long before as being the amount he wanted. In evidence, he relied upon comparisons with various other premises, but these comparisons were quite unconvincing and wore the strong appearance of being afterthoughts. However, it is unnecessary to pursue the point. 22 The defendant, in answer to the plaintiff's case, says that Pub Oz Pty Limited, by virtue of the terms of the letter of 23 June 1999 set out earlier in these reasons, waived compliance by the defendant with the time stipulation in clause 6 (b) of the lease. This argument seems to me to be difficult to reconcile with the language of the letter. Having bluntly declared that "the proposed rent increase is unacceptable and does not reflect the market value of the property", the writer goes on to state: "It may be necessary to appoint a valuer as anticipated by the lease but in the meantime Mr Callaghan has requested a meeting with you in an attempt to resolve this matter."

[28]

This does not seem to me to be the language of waiver, although certainly it evinces a willingness to consider either negotiating in an attempt to reach a solution or entering upon a process of valuation which might have led to a waiver if undertaken. The holding out of an olive branch need not be seen as a waiver. In fact, of course, the lessor rebuffed the lessee before the matter had got any further. It had certainly not got to the stage contemplated by Denning LJ in Charles Rickards Ld v Oppenheim [1950] 1 KB 616 at 623, the case cited by Lord Hobhouse in W & R Jack Ltd v Fifield , where his Lordship (with whom Bucknill and Singleton LJJ agreed) said: "If the defendant, as he did, led the plaintiffs to believe that he would not insist on the stipulation as to time, and that, if they carried out the work, he would accept it, and they did it, he could not afterwards set up the stipulation as to the time against them. Whether it be called waiver or forbearance on his part, or an agreed variation or substituted performance, does not matter. It is a kind of a estoppel. By his conduct he evinced an intention to affect their legal relations. He made, in effect, a promise not to insist on his strict legal rights. That promise was intended to be acted on, and was in fact acted on. He cannot afterwards go back on it." 23 As these remarks of Denning LJ illustrate, a waiver is not always easy to grasp. It may take different forms. But, for present purposes, a waiver may be founded either upon estoppel or upon election. When the chameleon wears the colours of estoppel, it requires reliance by the other party (here, the defendant) so as to make it unconscientious of the party waiving to insist further upon the right in question. When waiver appears in the guise of election, a conscious choice between known rights is required, or at least conduct definitely inconsistent with the continued assertion of the right waived. The nature of a waiver of a contractual right founded upon estoppel is explained in the passage I have cited from Charles Richards Ld v Oppenheim. What waiver as a species of election involves is stated in Craine v The Colonial Mutual Fire Insurance Company Limited (1926) 28 CLR 305 at 326 where Isaacs J, delivering the judgment of the Court (Knox CJ, Isaacs and Starke JJ), said that "waiver must be an intentional act with knowledge", the question being whether the party has approbated so as not to be able to reprobate - "whether he has elected to get some advantage to which he would not otherwise have been entitled, so as to deny to him a later election to the contrary …. His knowledge is necessary, or he cannot be said to have approbated or elected." This view of the law was accepted in George v Roach (1942) 67 CLR 253 at 262 by Rich J who insisted upon "intention and knowledge of all the relevant circumstances", and in Deaves v CML Fire and General Insurance Company Limited (1979) 143 CLR 24 at 42 by Gibbs CJ (with whom Stephen J relevantly agreed). 24 In neither the sense of estoppel, nor in that of election, can waiver assist the defendant. Far from changing its position in reliance on the letter of 23 June 1999, the defendant rejected any course suggested by that letter out of hand, so there is no estoppel. As for election, not only is it clear Pub Oz Pty Limited did not have the necessary intention and knowledge, but the remarks of Lord Wilberforce in Johnson v Agnew [1980] AC 367 at 398 are very much in point. His Lordship said: "Election, though the subject of much learning and refinement, is in the end a doctrine based on simple considerations of common sense and equity. It is easy to see that a party who has chosen to put an end to a contract by accepting the other party's repudiation cannot afterwards seek specific performance. This is simply because the contract has gone - what is dead is dead. But it is no more difficult to agree that a party, who has chosen to seek specific performance, may quite well thereafter, if specific performance fails to be realised, say, 'Very well, then, the contract should be regarded as terminated.' It is quite consistent with a decision provisionally to keep alive, to say, 'Well, this is no use - let us now end the contract's life.' A vendor who seeks (and gets) specific performance is merely electing for a course which may or may not lead to implementation of the contract - what he elects for is not eternal and unconditional affirmation, but a continuance of the contract under control of the court which control involves the power, in certain events, to terminate it."

[30]

This formulation states a test for a conclusion of fact. But that test is not met in the present case. Pub Oz Pty Limited was not silent; orally and in writing, it rejected the revised rent. It met an adamant refusal of any reconsideration under the lease and an insistence that it was obliged by the terms of the existing contract to pay. That it paid in these circumstances could signal to the lessor no more than that it had failed to detect the error infecting the lessor's position. On the evidence of Mr Callaghan which I accept, this was in fact the case; he mistakenly believed Pub Oz Pty Limited was under a legal obligation to pay. 26 The defendant urged in support of its contention the later decisions in Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 and 33 Bank Street Nominees Pty Ltd v Citipower Pty (1997) BC 9702794, a judgment of Beach J. In the former case, Ipp AJA (at 197) referred to the passage in the judgment of McHugh JA in Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd, to which I have referred, in holding that an offer in respect of the fees for certain waste disposal operations had been accepted by conduct when those fees had been charged. In the latter case, Beach J inferred, "[i]n the absence of any other evidentiary material shedding light upon the matter", from the payment of rental over a period of three years, an agreement by a lessor not to apply a rent review clause. But, as I have made clear, there is not such an absence of evidence here. Here, as in Gollin & Company Limited v Karenlee Nominees Proprietary Limited (at 465-469), there is evidence to elucidate the circumstances in which the payments were made, and I find it does not indicate the alleged agreement, or any waiver of the lessee's rights. 27 What the circumstances do indicate, rather than an agreement to accept the rent fixed by the lessor, is a misrepresentation (doubtless innocent), made on its behalf, that in the events that had happened the rent had been effectively fixed at the revised figure which could not be reconsidered under clause 6(c). The payments of the increased amounts made in consequence by the lessee were made under a mistake induced by that misrepresentation, and are recoverable. Shorn of the complications of the restrictive legislation there in question, the case is analogous to Solle v Butcher [1950] 1 KB 671, where Denning LJ said (at 695): "It seems to me that the plaintiff was not merely expressing an opinion on the law: he was making an unambiguous statement as to private rights, and a misrepresentation as to private rights is equivalent to a misrepresentation of fact for this purpose … But it is unnecessary to come to a firm conclusion on this point, because, as Bucknill LJ has said [at 684 et seq], there was clearly a common mistake, or, as I would prefer to describe it, a common misapprehension, which was fundamental and in no way due to any fault of the defendant …"

[33]

See also Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516 and British American Tobacco Australia Ltd v The State of Western Australia (2003) 217 CLR 30 at 53. 29 It cannot be said that any of the payments of amounts exceeding the rent that was due caused the defendant to refrain from taking the appropriate steps to increase the rent, so as to raise some equity in its favour. That would be to reverse the current of causation that actually flowed, for the payments were made because of the defendant's own insistence that everything necessary to impose an obligation to make them had already occurred. In any case, the claim of Pub Oz Pty Limited that the whole procedure was not in accordance with the legal rights of the parties was made before the end of the lease, and so before it could be said to be too late for the defendant to invoke the proper procedure (it will be recalled that clause 6(b) remained available, while the lease was in force, "at any time thereafter"). That the defendant did not respond to the claim by taking any step under clause 6(b) is powerful evidence in favour of the view that it knew an expert determination under clause 6(c) would not justify its retention of at least a large part of the payments, and I do not find that any part has been shown to be an amount it would, had the proper steps been taken, have been entitled to retain. On that issue, the onus is on the defendant: David Securities Pty Limited v Commonwealth Bank of Australia at 384. 30 Counsel for the defendant raised the contention that clause 6(e) of the lease provided a defence to the extent of 80 per centum of the overpayments made. But it seems to me there are several answers to this proposition. In the first place, clause 6 (e) is an interim provision to operate pending resolution of the question whether the amount "fixed by the Lessor pursuant to sub-clause (b) … or clause 4" is to be varied. I have already held that the purported notice under clause 6(b) was not valid, so it must follow that clause 6(e) never became available. Secondly, assuming a valid notice under clause 6(b), clause 6(e) looks to the giving by the lessee of a notice under clause 6 (c) or the lessee's failure to accept in writing within 14 days after being notified thereof that the "annual rent so fixed by the Lessor [ie in a valid notice under clause 6(b)] is the current market rent". In either case, clause 6(e) then requires the further step expressed by the words "the Lessee shall if requested in writing by the Lessor from the review date in addition to continuing to pay the monthly rent instalments at the rate applying immediately prior to the review date pay by equal monthly instalments in advance eighty (80) per centum of the increase in annual rent sought by the Lessor and fixed in its notice to the Lessee pursuant to sub-clause (b)". The lessor, which absolutely refused to recognise that the lessee had given or could give a notice under clause 6(c) has never been in a position to avail itself of this provision, and in fact no request in writing to make the payments specified in clause 6(e) has ever been made. Finally, clause 6(e) contemplates either a "determination of the rent in accordance with sub-clause (c)" or alternatively "the increased annual rent otherwise being agreed", whereupon the interim measure provided for by clause 6(e) would resolve into an "appropriate adjustment and payment or repayment as the case may be" which "shall forthwith be made between the Lessor and the Lessee to ensure that as from the review date the Lessee had paid and the lessor has received the appropriate amount in respect of the annual rent as agreed between the Lessor and the lessee or otherwise as determined in accordance with sub-clause (c)". Plainly, this part of the clause has also never been applicable, as there has never been any contemplation by the lessor of either a determination under clause 6(c) or any such agreement as clause 6(e) envisages. I reject the contention that now, long after the lease has been terminated, the defendant can avail itself in any way of clause 6(e). 31 For these reasons, at the time Pub Oz Pty Limited went into liquidation it was entitled to recover the overpayments of rent together with interest thereon but the plaintiff, in consideration of a payment of $10,000 plus $1,000 goods and services tax totalling $11,000, took an assignment from the liquidators and was substituted for the company as plaintiff. The liquidators duly gave notice in writing to the defendant of the assignment on 23 June 2003. There was some dispute about the effectiveness of this assignment, but I do not see any reason to doubt that it was, at least, a good assignment in equity. If so, the company as legal owner having gone out of existence, there is no reason why the equitable assignee should not "prosecute the action to finality and obtain a judgment without joining the assignor as a party": Weddell v Pearce [1988] 1 Ch 26 at 43; Jennings v Credit Corp Australia Pty Ltd (2000) 48 NSWLR 709 at 719-722. In any event, in order to make doubly sure, the plaintiff has since taken a further assignment, in reliance on s 601AD of the Corporations Act, from the Australian Securities and Investments Commission. In my opinion, the plaintiff is entitled to succeed in his action. The parties have calculated the overpaid rent, with adjustments for indexation, at $383,967.36 on which interest is to be allowed at the appropriate rates, the amount of interest being $145,655.09 as at 11 August 2005. 32 That leaves the cross claim to be considered. 33 The cross claim is pleaded in reliance on three particular clauses of the lease which are set out below: "7. The Lessee takes subject to the full effect of the covenants next hereinafter shortly noted as the same are set forth in words at length in the second column of Part 2 of the Fourth Schedule to the Conveyancing Act, 1919:- … (4) And to maintain and leave the premises in good repair (having regard to their condition at the commencement of the lease), reasonable wear and tear, war damage, and damage by fire, lightning, flood and tempest excepted;" (The "words at length in the … Fourth Schedule to the Conveyancing Act" referred to in this clause are: "And also that the lessee will during the term, when, where, and so often as the need shall be, but having regard to the condition of the demised premises at the commencement of the lease and excepting reasonable wear and tear, war damage, and damage by fire, lightning, flood and tempest, occurring within the term - (a) well and sufficiently maintain, amend, and keep, and (b) at the expiration or sooner determination of the term peaceably surrender and yield up unto the lessor, in good and substantial repair the demised premises, including all appurtenances, buildings, erections and fixtures belonging to the demised premises, or at any time within the term lawfully made or erected by the lessor upon or within the demised premises.") "24. (c) The lessee does hereby covenant with the lessor:- (i) At all times during the continuance of this lease to keep the fittings plant and chattels now and from time to time on the said premises in a proper state of repair working order and condition and will replace the same or such part or parts or items thereof as shall become broken worn out destroyed damaged or obsolete with fittings plant and chattels of a like nature and equal value so that the same are in a proper state of repair working order and condition at the expiration or sooner determination of this lease or any extension or renewal of it." "25. (a) The lessee hereby acknowledges that the fixtures, fittings and equipment as listed in Annexure 'A' hereto belong to and are the property of the Lessor. (b) The lessee accepts these fixtures, fittings and equipment in their present condition and state of repair and shall return the same to the lessor upon the termination of this lease in a condition as near to their existing condition at the commencement of this lease (reasonable wear and tear excepted). [ Sic ] The lessee shall maintain the same and be responsible for their repair during the continuance of this lease and any option period granted pursuant to this lease." 34 Perusal of these clauses reveals that clause 7 is concerned with the repair of the premises, including the appurtenances and fixtures belonging to them, "having regard to the condition of the demised premises at the commencement of the lease and excepting reasonable wear and tear." Because the measure of the obligation imposed by this covenant is the condition of the demised premises at the commencement of the lease, it may be important to know when that time was. In the present case, it will be recalled, Pub Oz Pty Limited only purchased the business of the hotel as the original term of the lease was drawing to a close; indeed, it was on the very same day that the option of renewal was exercised, an option only exercisable pursuant to clause 4 of the lease "if the Lessee shall not then be in breach of any of the covenants and agreements by and on the part of the Lessee contained in this lease". It was not suggested the lessee was so in breach and a renewed lease was entered into. It was the renewed lease which then governed the relationship between the lessor and the lessee and clause 7 of that lease, when it referred to "the commencement of the lease", could hardly mean anything but the date 21 July 1998 when the lease commenced: Halsbury's Laws of Australia vol 16 (1997) 245-3610; Gerraty v McGavin (1914) 18 CLR 152 at 163, where Isaacs J said: "Now, what is the position of a lease obtained by the exercise of an option to renew? Clearly it is a new lease, a new demise." 35 A further matter should be noted about clause 7. Counsel for the cross-claimant referred me to Lurcott v Wakely & Wheeler [1911] 1 KB 905, an authoritative decision as to the effect of covenants to repair. In that case, Fletcher Moulton LJ said (at 919): "[I]t is settled law that when a man undertakes to keep a thing in good condition or in thorough repair, and it is not in that condition when the demise commences, the covenant implies that he is to put it in that state as well as to keep it in that state."

[35]

In the same way, when clause 24(c)(i) is applied to television sets, refrigerators and air conditioning units that are outdated or aging models, of low value, and the clause itself limits the obligation to replacing them with items "of a like nature and equal value", it is necessary to consider what it is that the lessee is obliged to do. Likeness in nature and equality in value require an appraisal of a replacement by comparison with what the item replaced would be if it were still functioning in a reasonable fashion. 37 Clause 25 raises a different problem. It applies to the particular fixtures, fittings and equipment that are stated to be listed "in Annexure 'A' hereto". The difficulty is that the registered lease has no annexure "A", and it is not shown Pub Oz Pty Limited or the cross-defendant was ever supplied with such a document. In response to this difficulty, the cross-claimant submits, first, that the conveyancing file of a solicitor who acted upon the sale of the business by the original lessee, some two years after the date of the lease, by an agreement dated 19 May 1995, to a company Dukest Trading & Investments Pty Limited did contain, as well as the contract and a copy of the lease, an inventory headed Gray Eisdell Timms Pty Ltd, consisting of 23 pages, undated but bearing a facsimile stamp with the date 2 February 1993. This document bore nothing in the way of an annexure note but a capital "A" has been handwritten at the top of the first page (whether for the purpose of annexation to another document or because it was believed by someone to be a copy of the missing annexure is not known), and the bottom right hand corner of each page bears two sets of initials which appear to correspond with initials also inscribed at the bottom right hand corner of the agreement of 19 May 1995 and each page of a copy of the lease in the same file. They have not been identified with any two signatories of the lease. The copy of the lease is a photocopy bearing also a number of other initials which do not appear on either the agreement or the inventory. The copy of the agreement is also endorsed "A" in ink, but in what appears to be a different hand, and a section of the lease itself bears the endorsement "THIS IS THE ANNEXURE 'A' REFERRED TO IN THE LEASE … ". A further copy of the same inventory was contained in the 1997 purchase file of the solicitor for the cross-claimant, who obtained it from the vendor to the cross-claimant. On this basis, counsel for the cross-claimant argues that I should conclude the Gray Eisdell Timms Pty Ltd inventory became the annexure A referred to in clause 25(a) of the lease. But I do not see how this answers the difficulty. Counsel's written submission concedes that "there is no evidence that Pub Oz Pty Ltd received Annexure 'A'", and it is clear on the evidence that there was no such annexure to the lease as registered. 38 The obligation binding the cross-defendant is to be found in a deed delivered on 19 May 1998 which refers to the registered lease. The parties were the cross-claimant, the company Dukest Trading & Investments Pty Limited, Pub Oz Pty Limited, Matthew John Duffy and another person who had guaranteed the obligations of Dukest Trading & Investments Pty Limited (they are referred to as "the Continuing Guarantor"), and the cross-defendant. There is a recital that the other parties had requested the cross-claimant "to consent to an assignment of the Lease" and there is a definition of "Lease" as meaning "the lease of the premises, the date and registration number of which are set out in Item 6 of the Reference Schedule". That item simply provides: "Dated: 11 November 1993 Registered: U638093".

[37]

Clause 5 provides: "The Incoming Guarantor [ie. the cross-respondent] hereby acknowledges by his execution hereof that the Lessor has agreed to consent to the assignment of the Lease from the Transferor to the Transferee at the request of the Incoming Guarantor and in consideration of such agreement and these presents the Incoming Guarantor hereby covenants with the Lessor as follows: (a) the Incoming Guarantor unconditionally guarantees to the Lessor the payment of every sum of money whatsoever that may be or become payable by the Transferee to the Lessor under or in accordance with or by virtue of or in consequence of the Lease or this Deed notwithstanding that such money is for rent, interest payable on moneys overdue or for any other moneys payable thereunder or for damages or costs which the Lessor may pay, incur, sustain or be put to in connection with the exercise or attempted exercise of any remedy or right conferred upon the Lessor under or in accordance with or by virtue of or in consequence of the Lease and this Deed or otherwise; (b) the Incoming Guarantor hereby covenants with the Lessor that in the event that the Transferee in any respect fails to observe or perform any of the terms, covenants, conditions and restrictions contained in the Lease or this Deed on the part of the Transferee to be observed or performed the Incoming Guarantor shall indemnify and keep indemnified the Lessor from and against all actions, claims, costs, damages, decrees, demands, expenses, judgments, losses, orders, proceedings, summons, [ sic ] suits and writs of any nature whatsoever arising out of or in consequence of any such failure; … " 40 In my opinion, the evidence simply does not sustain the conclusion that the Gray Eisdell Timms Pty Ltd inventory was ever actually adopted as the annexure A referred to in clause 25(a) of the lease, and the evidence certainly does not show that the obligations undertaken under seal by Pub Oz Pty Limited and the cross-defendant were so undertaken by reference to that inventory. 41 It is convenient at this point, having just set out clause 2 of the Deed, to examine its effect. The covenant in that clause is limited by its opening words to the period "on and from the date [being 20 April 1998]". Counsel for the cross claimant argued that this limitation upon the covenant applied only to the rent and that the other obligations undertaken could relate back to the first day of the lease. There is a number of reasons why I do not accept this construction. In the first place, the covenant to pay the rent is certainly limited in the way I have stated, and that covenant is, by the structure of the language of the clause, indivisibly linked to the further obligations expressed by the words "and all other moneys payable thereunder". Furthermore, the balance of the clause does not refer to a backdating to the commencement of the lease but continues by imposing further obligations in the one sentence which had commenced with the indication that it was to operate on and from the date specified. Then, when one looks at the context of the rest of the deed, one finds that the Transferor and Continuing Guarantor by its express terms remain liable notwithstanding the assignment and notwithstanding any possible future assignment (clause 4). While this care is taken to ensure that these assignments should not affect the liability of the Transferor and the Continuing Guarantor, there is no corresponding express provision that a liability imposed on the Transferee and the Incoming Guarantor should not affect the continuing liability of the Transferor and the Continuing Guarantor for past breaches. 42 If clause 25(b) has application to any of the items claimed in the cross-claim, its application will be subject to the effect of its reference to the "existing condition [of such an item] at the commencement of this lease (reasonable wear and tear excepted)". It does not refer to replacement, although, of course, repair may involve the replacement of parts (but not normally the replacement of the whole, particularly in a context, such as the context of this clause, where the immediately proximate clause 24(c)(i) expressly includes replacement in certain circumstances). 43 Both counsel made submissions concerning the cross-claim item by item and I shall deal with these items by the same designations, as follows:

[39]

The cross-claimant claims the amounts specified in six invoices. The first invoice is dated 21 March 2003 in the sum of $678.15 for 12 cistern valves and a number of other items including a "Posh Solus Basin Mixer Chrome" and a "Posh Solus Sink Mixer Chrome", neither of which is identified in the evidence or otherwise explained. Whether these items were replacements or improvements is not known. When this was pointed out in submissions for the cross-defendant, counsel for the cross-claimant was content to respond that certain evidence about the condition of bathrooms and toilets had not been challenged and the cross-defendant had adduced no evidence about the extent of reasonable wear and tear. As to the former point, both the witnesses were cross-examined but not as to every detail, and not as to the detail of their evidence about the bathrooms and toilets, but that evidence was itself somewhat contradictory. The witness Mason said "[T]he toilets either did not have a toilet seat or had a seat which was broken. The cisterns on the toilets were either damaged or not working at all. The tap fittings in the bathrooms leaked or did not function." He also expressed the opinion that "the toilets seats, toilet cisterns and taps all needed to be replaced as they could not be repaired". As against these statements, the invoices relied on refer to large numbers of parts, which fact, at any rate when there is no explanation of it, suggests that the items were repaired, as one does not normally buy large numbers of parts in order to instal new items of this nature. In any case, the other witness relied upon presents a different picture. He was Mr Gencher, the manager of another hotel in the cross-claimant's group, who prepared a report on the condition of the hotel after spending about 20 hours inspecting it. His report refers to many matters of which the cross-claimant complains, but relevantly to the present point, it refers to one broken toilet seat "in far left cubicle" of the ladies' toilets and otherwise makes no reference to any problem with taps, cisterns or toilet seats in the ladies' and men's toilets, no reference to any problem of that kind in the first floor toilets and one problem of "Toilet cistern running" in the second floor toilets. (Another witness for the cross-claimant, a Mr Jaja, said of the toilets that "water was continually flowing in some of them" - should the Court accept that, or rely on Mr Gencher's report after 20 hours of inspection for the purpose of reporting on the state of the hotel?) The hotel stayed open, Mr Gencher said in cross-examination, both as to the bar and as to accommodation, which could surely not have happened unless the toilets had been reasonably usable. It is true that Mr Gencher, in his affidavit although not in the report he made at the time, referred to the "toilets", immediately after referring to the men's and ladies' toilets and without specifying whether the first and second floor toilets were included, as "filthy and most had leaking taps ". The difficulty remains that the invoice is unexplained and it, as well as other invoices, does not seem to sit well with the statement of Mr Mason that "the toilets seats, toilet cisterns and taps all needed to be replaced as they could not be repaired". The second invoice is for an amount of $433.14. It is dated 31 March 2003. It relates to a large number of small items apparently forming parts of toilet cisterns and basins, which again seems consistent only with the overhaul of cisterns rather than their replacement, or, possibly, consistent with the laying in of a stock of parts for the future. The third invoice is for $295.40 dated 2 April 2003 which again includes a number of small parts. But on this occasion there are two "Caroma" items at $90 each. The fourth invoice is for $55.55 dated 2 April 2003 in respect of 1 pull chain outlet valve. The fifth invoice is for $1,034.66 dated 10 April 2003. It relates to another pull chain outlet valve and to 24 inlet valves. There is simply no evidence to explain or justify this quantity of inlet valves, particularly as there were also other valves, including inlet valves, included in the previous invoices. The sixth invoice is actually a part of a larger invoice dated 30 April 2003 from a Mitre 10 store. The amount claimed here is $92.47 including 3 tap handles (why a separate order of parts, such as 3 handles, if, as Mr Mason said, all taps were beyond repair and needed replacing?) and 1 "longnose plier". It is impossible to imagine how a tool such as a "longnose plier" could properly be charged as part of the cross-claimant's claim. The very fact of its inclusion, and the cross-claimaint's persistence in claiming it after counsel for the cross-defendant pointed out the incongruity of this claim, is a matter of grave concern when the Court is asked, without explanation, to accept the large number of items which have not been identified with a particular repair or replacement falling within a relevant covenant. I should add that counsel for the cross-claimant points out there was no evidence adduced on behalf of the cross-defendant identifying specific elements of reasonable wear and tear. I do not think this prevents the Court drawing inferences, just as the cross-claimant asks the Court to draw inferences, to the extent it can, in dealing with the cross-claimant's claims. It would certainly be difficult for the cross-defendant to give precise evidence of the extent to which any of the claims relating to bathroom fittings might have been contributed to by reasonable wear and tear in the absence of any sort of identification of the particular matter under repair or replacement when the purchases were made that led to these invoices. (bb) Damage to plumbing on roof of laundry

[64]

Under this item, a claim is made for $3,072.73 for the replacement of 13 bar refrigerators at $260 per refrigerator supplied by Bing Lee Electrics Pty Limited as invoiced on 25 September 2003 for delivery on 30 September 2003. The model number is specified and, if I read the abbreviation correctly, the size is specified as 95 litres. But there is no other information to enable a comparison to be made with the refrigerators which they replaced, except that the new refrigerators were LGs. Although, as I have already made clear, the evidence is unsatisfactory by which the cross-claimant seeks to show that the Gray Eisdell Timms Pty Ltd inventory was actually annexure "A" to any relevant copy of the lease, it does suggest that the refrigerators listed in that inventory were probably the refrigerators that were in the hotel. If so, those refrigerators consisted of twelve Sanyo bar refrigerators four of which were valued in 1993 for the purpose of the inventory at between $120 and $175 each, no value being assigned to the others. There is no evidence to indicate a particular value which such a refrigerator would have had 10 years later. I see no reason to doubt the cross-claimant's contention that these refrigerators were in working order at the time Pub Oz Pty Limited took an assignment of the lease. However, the date of its eviction was almost exactly 5 years later. Unless the cross-claimant can bring itself within clause 25, despite the difficulties that have been discussed, the clause of the lease which would appear to be applicable to the refrigerators would be clause 24 (c)(i) under which, to the extent that replacement was required, the lessee's liability was limited to replacement by items "of a like nature and equal value" and, as I have already concluded, having regard to what it is that must be replaced in the way that Fletcher Moulton LJ indicated in Lurcott v Wakely & Wheeler . Plainly, it would not accord with the measure of the obligation imposed by that clause to replace an old refrigerator with a brand new one. The cross-defendant's liability cannot exceed the cost of an appropriate reconditioned refrigerator, and there is simply no evidence about that. It is the cross-claimant that is making the claim, and I do not think it can make out its case simply by relying on an invoice relating to brand new refrigerators which may or may not be of a reasonably similar type (so far as a similar type remains available). I do not think the Court should be asked to guess about these matters in the absence of evidence.

[67]

Under this heading a claim is made for $6,608 in respect of 14 double bed ensembles. The claim is supported by two invoices from Sealy of Australia, one dated 29 September 2003 and the other dated 9 October 2003. I found the figures impossible to reconcile precisely, but as counsel for the cross-defendant was prepared to accept that these were the relevant invoices and counsel for the cross-claimant in final submissions suggested no other basis of support for the amount of the claim, I am prepared to accept that the claim is supported by appropriate evidence of the purchase of new beds from Sealy of Australia. The difficulty is again that, like the refrigerators, for the new beds to fall within clause 24(c)(i) of the lease they would have to be "of a like nature and equal value" within the meaning of that clause when compared with what was there before. The evidence is sparse indeed to enable me to form any conclusion on that subject. In very general terms, guidance may be obtained from the description by the valuer who assessed the hotel for rental purposes on 7 February 2002. He describes it as providing a "modest standard of shared accommodation". Also, the witness, the plaintiff's daughter, Mrs Tumbridge, herself a hotel licensee, who inspected the hotel with her father in or about April 1998, described it as "run down" and said that she recalled the accommodation rooms "were very basic and in need of cleaning, new furnishings and maintenance". Although the evidence of the licensee at that time is to the contrary and was not tested by cross-examination, neither was there any reason to disbelieve Mrs Tumbridge, whereas I have already pointed out that the evidence about the question of termites and the stairs suggests that what the previous licensee deposed to cannot receive unqualified acceptance. Again, assuming the Gray Eisdell Timms Pty Ltd inventory was at least an inventory professionally prepared which did relate to the contents of the hotel in February 1993, it may be inferred from the values suggested by that inventory in respect of eight of the double beds (the balance with no values attributed may or may not have had no significant value) that the beds ten years later were of a very small value indeed. The 1993 value of the eight beds appears to have been between $150 and $250 each.

[75]

Under this heading, a claim is made for $3,294.55 in respect of 11 x 51cm television sets and 2 x 68cm television sets, the claim, however, being limited to the cost of 12 x 51cm television sets at $302 per set, with some slight further adjustment. The television sets were bought new from Bing Lee Electrics, the invoice of which is dated 25 September 2003, ie. after the cross-claimant had been operating the hotel for some six months. Mr Jaja swore that the "newly purchased television and bar fridges were the same size as those that were on the premises". Because this particular statement was not taken up in cross-examination, counsel for the cross claimant argued the Court should accept it. However, in the case of the television sets, there is evidence to the contrary in the inventory prepared by Gray Eisdell Timms Pty Ltd which the cross-claimant contended was annexed to the lease. There it was specified that four of the television sets were 30cm sets and no larger size was given for any set, almost all of the other sets being described as "portable". Having regard to the documentary evidence, I am satisfied that the replacement television sets were much larger than those they replaced. It was conceded they were also "brand new" and "current models". I do not accept Mr Jaja's evidence about the size of the television sets that were in the hotel, and as his statement about the size of the refrigerators that were replaced was in identical terms I think the demonstrable incorrectness of what he said, so far as it related to the television sets, throws doubt on the other aspect of what he said also. Another aspect of Mr Jaja's evidence was his claim that the television sets were replaced because they were not functioning and it was impossible or uneconomic to repair them. He said he was instructed by Mr Mason to replace them. However, Mr Mason did not suggest in his oral evidence that none of the television sets worked. This may be contrasted with his affidavit where he asserted: "In some rooms there were no televisions and in the remainder of the rooms there were older model colour televisions, which did not function." In his oral evidence Mr Mason said there was a reception problem, with some of the sets, which required something to be done about the antenna, after a change to which "reception problems went away". Asked whether that related to "half of the televisions", he answered: "Probably, yes."

[106]

A claim is made for $83.15, the amount charged by an electrical supplier for one light dimmer by invoice dated 23 April 2003. The fact of such a purchase at that time does not seem to me to provide a sufficient basis for attributing liability to the cross-defendant. 45 Having examined the detail of the cross-claim, it is appropriate to make a general comment. Many of the allegations on which it is based involve value judgments. In a number of respects, the cross-claimant alleges serious failures reflecting on the conduct of the hotel by the cross-defendant. Yet the evidence is that Jennifer Waldron, an executive of the cross-claimant who did not impress as likely to look for less than satisfactory standards for herself, lunched regularly at the hotel from April 1998 to November 2000, while she was in Sydney, enjoying, as she said, "good food" there with "nothing unpleasant about it". Indeed, the popularity of the hotel was given by Mr Hemmes as a justification for his increasing its rent so greatly! And despite the strong criticism by the cross-claimant's witnesses of the accommodation provided at the hotel, the cross-claimant did not immediately change very much, as will have been gathered from the dates of the invoices that are relied upon. Notwithstanding the large amount ultimately spent on the panelling in the public areas, which Ms Waldron must have seen, there was no demand made during the currency of the lease to repaint or take any other step on the footing the lessee was not showing proper care of the premises. The evidence given by the cross-claimant's witnesses seemed to me to be exaggerated, and I conclude that much of the work and replacements owed a great deal to Mr Hemmes's desire to change the hotel to fit the standard he required for a hotel belonging to the group of hotels conducted by his companies. It was admitted that one of the electrical invoices (for $5,045) was more than half related to improvements, so that the amount claimed was reduced to $2,293.18, and even then not justified in any satisfactory manner. On the whole of the evidence, I conclude that this was not an isolated case - it was a case where the terms of the invoice revealed the fact, while in other cases invoices were too broadly expressed to do so. 46 That conclusion, of course, leaves the Court with an extremely difficult task of estimation of the various amounts that should be allowed in respect of items not wholly justifiable. But it is clear the task must be carried out. In the Commonwealth of Australia v Amann Aviation Pty Limited (1991) 174 CLR 64 at 83, Mason CJ and Dawson J (who with Brennan and Gaudron JJ formed the majority) said: "The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann (1971) 124 CLR 303 at p.308 Menzies J went so far as to say that the 'assessment of damages … does sometimes, of necessity involve what is guess work rather than estimation'. Where precise evidence is not available the court must do the best it can."

[109]

$1,500.00 (h) Damage to the rooftop floor above the toilets on level two $NIL (j) Two missing and 11 damaged and non-functioning bar fridges $1,000.00 (n) 14 damaged, dirty and stained double bed ensembles $2,000.00 (o) Missing, dirty and stained linen for bedding in the accommodation area $750.00 (p) Damaged, torn and stained carpet on level one and two $10,000.00 (q) 12 non-functioning television sets $750.00 (r) Damaged and non-functioning air conditioners $NIL (s) Broken windows $370.91 (t) Missing or damaged and unusable bar stools $600.00 (u) Missing or damaged curtains $3,000.00 (v) Damaged and marked walls, ceilings and woodwork $6,000.00 (w) Damaged seals on refrigerators in bar area $519.91 Labour costs $2,500.00 Paint and nails $47.99 Painting $17,931.82 Repair to water damaged ceiling of bathroom on level one and repairs and purchase relating to dimmers $Nil TOTAL $51,918.13

Callaghan v Merivale CBD Pty Limited

At a glance

Court

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Before

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Judgment (111 paragraphs)

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Legislation Cited (2)

Cases Cited (22)

Cited By (2)