Construction Technologies Australia Pty Ltd v Doueihi [2017] NSWSC 684 | Case summary

The facts

Although the ultimate question may be determined relatively shortly, it is necessary to set out at least some of the tortured litigious history in which the present dispute is the latest skirmish.
On 3 April 2009 the Council approved the defendants' development application in relation to the Property for the "Construction of an industrial factory/warehouse building with associated offices, ancillary showroom, basement car park and landscaping" (the "2009 Development Consent"). The 2009 Development Consent included: "11.4.8 The hours of operation of the development shall not be outside the following nominated time. Any alteration to these hours will require separate approval of Council. Approved hours of operation: Monday to Friday: 7.00am to 6.00pm Saturday: 9.00am to 2.00pm"
The first day of the hearing before White J was 3 February 2014. In the course of her opening, Ms Rees SC took his Honour through a folder of photographs of the Property. The transcript of her opening (T8:9-13) records her as saying: "Page 22, we've now gone upstairs in the despatch office, and there are facilities for the staff to use the facility, being mainly truck drivers. Certainly the CTA operations are 24 hours, as I understand it, and so the truck drivers who come in have the ability here to shower, and there's some lockers, which can be seen on page 23."
A few pages later the transcript records his Honour saying to the defendants' then counsel (T13:33-38): "HIS HONOUR: The comments on the documents which form part of the exhibit will be in evidence, but your observations about them, Ms Rees, I think won't be evidence. But, Mr Elliott if there are points about what Ms Rees has said about this document with which your clients take issue I think they should identify what they are, so you can tell me. I will probably proceed on the assumption that what I've been told is right unless I am told otherwise."
The parties accept that the words attributed to Ms Rees SC in the transcript are the only occasion on which CTA's operating hours were mentioned in the course of the hearing before White J. While it was not suggested during the course of the hearing that Ms Rees SC' reference to 24-hour operation had been the subject of disagreement pursuant to White J's invitation recorded in the preceding paragraph, it was also common ground between the parties that CTA's facility did not operate on a 24-hour basis.
On 4 December 2014, his Honour delivered the Decision. His Honour's fundamental conclusion was: "141. Applying proposition 5 as restated in Austotel to the facts of this case I would conclude that the defendants encouraged Mr Hogan, and through him, CTA, to assume that an interest would be granted to CTA, namely that it could have exclusive possession of Area B and the right to use the shared areas for five years with an option to extend that period for a further five years if it paid the rent that had been agreed. The defendants encouraged the adoption of that assumption by leaving discussions as to the terms of CTA's occupation of the premises to Mr Doueihi, and by Mr Doueihi's accepting that it would be fair for CTA to have such a right of occupation. CTA relied upon that assumption. It did so partly through Mr Hogan's expenditure of labour and skill in contributing to the design of the premises and supervising their construction. It also did so by installing its plant, which was expensive to install and would be expensive and disruptive of its business to remove. It would be unconscionable for the defendants to depart from the assumption that CTA was induced to adopt because they took advantage of Mr Hogan's efforts, they knew of CTA's expenditure, they accepted CTA as a tenant and accepted its rent being aware, at least, that CTA would expect to be able to occupy the premises for a long term. Further, although Mrs Vatselias, Ms Scott and Ms Hogan did not give Mr Doueihi authority to contract, they did allow and expect him to act for them in negotiating with Mr Hogan and are fixed with Mr Doueihi's knowledge as to Mr Hogan's assumption of a right to a five plus five-year term and Mr Doueihi's acquiescence in that."
The circumstances which inform the existence of the Undertaking and Order 2 are set out in the Decision (emphasis added): "Illegality or unclean hands 97. The defendants contended that CTA was disentitled to any equitable relief because the manufacturing plant was not the subject of development consent and the granting of the lease as sought by CTA would be an illegal use of the site. Counsel for the defendants said that this was not an allegation of unclean hands but was something more serious (T637-638). Counsel did not submit that the conduct complained of had a direct and immediate connection to the equity sought to be enforced so as to give rise to a defence of unclean hands. Counsel accepted that the alleged illegality would be appropriately dealt with by its being a condition of any grant of relief by way of specific performance of the alleged agreement for lease, that development consent (if required) be sought and obtained and that a grant of relief on principles of equitable estoppel could be subject to the same term (T639) (Taluja v Australian International Academy of Education Limited [2011] NSWCA 416; (2011) 16 BPR 30,319 at [77]-[81]). 98. On 3 April 2009 the Blacktown City Council granted consent subject to conditions for the following development, namely, "Construction of an industrial factory/warehouse building with associated offices, ancillary showroom, basement car park and landscaping". Section 81A(1) of the Environmental Planning and Assessment Act 1979 (NSW) provides: "81A Effects of development consents and commencement of development (1) Erection of buildings A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M. Note. Section 109M prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building." 99. No issue has been raised about an occupation certificate. CTA did not submit that adhesives manufacturing was one of the purposes stated in the development application. After the dispute between the parties arose Mr Doueihi complained to the Blacktown City Council that CTA was manufacturing adhesives without his consent. This was disingenuous as Mr Doueihi and the other defendants well knew that CTA would be conducting adhesives manufacturing as well as distribution from the premises before it started to do so. They consented to its doing so. Mr Doueihi asked the council whether council approval had been given to adhesives manufacturing. On 29 July 2013 the council wrote to CTA stating that its records did not reveal any development consent sought or obtained for use of the premises for the purposes of an adhesive manufacturing facility. The council also advised that if the output of the adhesive manufacturing exceeded more than 5,000 tonnes per annum it was classified as designated development pursuant to Schedule 3 of the Environmental Planning and Assessment Regulation 2000 and a licence for the activity was required to be obtained from the NSW Environmental Protection Authority. The council advised that CTA must either cease to use the premises for the purposes of an adhesive manufacturing facility and remove all machinery and other related adhesive manufacturing equipment from the land or seek development consent for the activity. It advised that as a first step CTA should approach the NSW Department of Planning and Infrastructure to discuss their requirements if the activity was a designated development. 100. On 9 August 2013 CTA's lawyers, Storey & Gough, sent a letter to the Blacktown City Council on Mr Hogan's instructions. They advised that the manufacture by CTA of adhesives at the premises did not exceed 5,000 tonnes per year and hence the use was not designated development. Storey & Gough also contended that pursuant to s 81A(1) of the Environmental Planning and Assessment Act no further development consent was required because the premises were being used as an industrial factory which was specifically approved in the development consent and, I infer, was a purpose specified in the development application. Storey & Gough also argued that the use did not require consent as it was exempt development within Zone 4(a) of the Blacktown Local Environmental Plan 1988 ("the Blacktown LEP") as the manufacturing being carried out was not hazardous, nor offensive, nor potentially offensive. 101. CTA engaged a town planner, Mr Chris Young, to advise it on its use of the premises and to assist it in its dealings with the council. It was Mr Young's preliminary opinion that the use of Area B of the premises (that is, the area exclusively occupied by CTA) was an exempt development under clause 33 in Schedule 6 to the Blacktown LEP being a development limited to an industrial purpose only, not including hazardous development, offensive development, potentially hazardous development, potentially offensive development or designated development. Mr Young considered however that car parking was not in accordance with the approvals in regards to the numbers and use of internal spaces, the operation of the site in regards to storage, loading and unloading appeared to be in breach of a number of conditions and a machinery extension from the ground floor into the basement car park was not approved and required an application to be made under s 96 of the Environmental Planning and Assessment Act. 102. Storey & Gough also provided a letter to the council on 22 August 2013. Storey & Gough stated: "We confirm our previous advice that despite your officer's observations of stored products, annual manufacture of the adhesive material does not exceed 5,000 tonnes. We attach a copy of the relevant company records confirming such annual output." 103. The documents attached reported production of between 78 and 461 tonnes per month. This was false. Mr Hogan deposed that for the calendar year of 2013 CTA had produced an average of 810 tonnes of adhesive per month. Mr Hogan said that he did not prepare the document that was provided by Storey & Gough purportedly showing monthly production figures. However, he proffered no explanation as to how Storey & Gough were provided with instructions that CTA's production was less than 5,000 tonnes per year. I am satisfied that he was aware of the statements that were made to Storey & Gough, was aware that the statements would be conveyed to the council and was aware that they were false. 104. Mr Hogan said in oral evidence that he had received further advice that even if production exceeded 5,000 tonnes per year the activity was not triggered as designated development. That was not the view of Mr Young. It is not necessary to resolve that question. If CTA is entitled to equitable relief it will be a condition of the relief that necessary approvals be obtained. The owners' consent is necessary for CTA to lodge any application that is required for council approval, such as s 96 approval to the internal premises, as well as any approval that might be required for the manufacturing use. The owners have not provided their consent. If CTA is entitled to equitable relief, the relief will extend to requiring the defendants to provide their consent to CTA's application for all necessary approvals."
Finally, it is necessary to set out his Honour's conclusion (emphasis added): "Conclusion 249. For the reasons at [141] I consider that CTA is entitled to enforce an equity arising by estoppel. For the further reasons above, neither the absence of a mistaken belief as to legal rights, nor the incompleteness of agreed terms, nor what might be regarded as carelessness in protecting its own interest, militates against that conclusion. 250. The appropriate equitable relief is relief to make good the assumption that CTA was induced to adopt. That relief is not disproportionate. Nor is it precluded by intervening interests of third parties. Nor could a monetary award satisfactorily value the expectation. There is no evidence of available alternative premises (Giumelli v Giumelli at [48]-[50], 125; Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505 at [82]-[85], 529-530). That may require the court to settle the terms of a lease for a term of five plus five years if the parties are unable to agree on the terms. But for the reasons given that is not an objection to the grant of relief. 251. It will be a condition of the relief that CTA undertake promptly to do all things necessary on its part to obtain all necessary regulatory approvals to its occupation of the site and its manufacturing facility. The costs of obtaining necessary approvals are to be borne by CTA. The first to fourth defendants will be ordered to do all that is necessary on their part for the obtaining of such approvals. 252. As indicated at [245] above, in its modified terms sheet CTA proposed adjustments of rent according to movements in the Consumer Price Index as well as a review to market if the option for renewal was exercised. The evidence is that the rent paid to date is a market rent notwithstanding the absence of CPI increases. However, the lease should provide for a review to market if the option is exercised. I also think that if the option is exercised there should be provisions for the rent for the renewed term to be increased in accordance with the CPI. 253. There was a dispute as to whether CTA has enjoyed exclusive possession of some of the shared facilities, such as the boardroom and an area of an amenities room. It has not claimed and is not entitled to a right of exclusive use of those areas. 254. The orders should provide that the first to fourth defendants execute a lease on terms that: a. CTA have the right of exclusive possession of the area shown as Area B on the plans, being the areas totalling approximately 1,159 square metres as depicted on the survey plan of Mr Bromhead, with a non-exclusive right to use the current shared facilities; b. the lease to be for a term of five years from 18 May 2010 with an option for renewal for a further five-year term, the option to be exercised by 18 May 2015; c. the rent for the first five-year term to be $12,000 per month inclusive of outgoings, but that CTA pay for electricity and consumables and services in the same way as it has to date; d. if the option for renewal is exercised, the rent for the renewed lease be the then market rent as agreed or determined by valuation and be subject to annual increases in accordance with the Consumer Price Index; e. CTA have the right to remove its tenant fixtures at the determination of the lease and be obliged to make good; f. that the lease otherwise contain usual lease covenants for factory premises that in default of agreement be determined by an expert to be appointed for that purpose."
The Orders were made by White J on 18 December 2014. There was a dispute between the parties as to the terms of the Undertaking and Order 2. In particular, the defendants sought to limit the Orders to refer to "existing activities which had been taking place on the CTA premises since 18 May 2010". So much is apparent from the "mark-up" version of the proposed orders propounded by the defendants: "The Court NOTES: 1. The plaintiff (CTA) undertakes to the Court at CTA's cost to promptly do all things necessary on its part to obtain all necessary regulatory approvals for CTA's occupation and use of the CTA premises as a and its manufacturing facility for the existing activities which have been taking place on the CTA premises since 18 May 2010 (Required Approvals). at those premises. The Court ORDERS: 2. The first to fourth defendant are to provide their consentdo all that is necessary on their part for the obtaining of the approvals referred to in notation 1 by CTA, to any reasonable application for the Required Approvals, including providing their consent to CTA's application for all necessary approvals. failing which a registrar of the Court may provide such consent. The Court DECLARES: 3. The first to fourth defendants are the subject of an equitable estoppel to the effect that a lease exists between CTA and the first to fourth defendants on the following terms: (a) A term of five years from 18 May 2010 with an option for renewal for a further five years, such option to be exercised by from 18 May 20150, provided:. (i) that CTA shall have obtained the Required Approvals and provided copies thereof to the first to fourth defendants by 17 May 2015, failing which CTA shall vacate the premises by 18 August 2015; and (a)(ii) that such option may only be exercised by written notice to the first to fourth defendants by 18 February 2015."
In the present dispute, CTA relied on the argument which took place before White J in relation to the form of the Orders and his ultimate rejection of the narrower form of orders proposed by the defendants. For this reason it is necessary to set out some of the transcript of argument before his Honour on that occasion, when Ms Rees of Senior Counsel appeared for CTA and Mr W G Muddle of Senior Counsel appeared for the defendants (T3:4-T5:27) (emphasis added): "HIS HONOUR: As these are orders for specific performance, they should include orders to apply and an order to restore. It should be made express. MUDDLE: I am content with that. I would understand, from what your Honour said elsewhere, that it should be implied. HIS HONOUR: Yes, but I think it should be expressed, and what is the lack of clarify with the undertaking that CTA undertake to do all things on its part that are necessary for it to have regulatory approval for its occupation and use of the premises and its manufacturing facility. MUDDLE: We apprehend that it ought to be as a manufacturing facility for the activities which have, in fact, taken place. And otherwise - HIS HONOUR: But there may be some issue as to whether it is for use as a manufacturing facility and if consent is required, for example, building approval, it has got to be obtained for its occupation. MUDDLE: Yes, and, that is, would fall within both of those. HIS HONOUR: I am not sure about that but it would certainly fall within the words "and its" as distinct from "as a". MUDDLE: I am no sure about that. HIS HONOUR: I will strike out "as a" and for the activities, which have taken place since May 2010. MUDDLE: The judgment reveals there are a number of activities having taken place since the term of occupation, which have been the subject of evidence, and we want to make clear in the order that the approval needs to cover all of those and not simply the first words, that is to say "occupation and use in a manufacturing facility". Whatever use and occupation has been made of it needs to be regularised. HIS HONOUR: Thank you. I think the form of the order as drafted by the plaintiff is appropriate in order 1. I think the way order 2 was framed is consistent with my reasons, isn't it - paragraph 251? MUDDLE: It is but we respectfully submit it is a little broad to encompass on our part taking steps which encompass - HIS HONOUR: Why shouldn't you, on my findings, if you encourage the occupation for this purpose? MUDDLE: I do not think your Honour's findings, and your Honour would know them better than I do - HIS HONOUR: It could be because no particular issue was raised about that. It is a matter of principle. MUDDLE: Was there any encouragement to believe that we would undertake further works to accommodate the manufacturing plant, for example? HIS HONOUR: There is no such indication of any such further works is required. MUDDLE: No-one has applied for the approval. That is the problem, and no-one knows what might be required. With reasonable contemplation the authority may require words to be undertaken, for occupational health and safety or to comply with regulatory works or whatever it may be. HIS HONOUR: If there is work to be done on the premises occupied by CTA, one would think it was work by CTA to be done not work to be done by the owners on the part of the property occupation by CTA. One would think that was the owner's responsibility? MUDDLE: That would be the issue. Your Honour has not had the opportunity to consider that in the judgment. That is why we say the order ought to be to consent and if the parties cannot work out who is responsible, that ought to be the subject of responsibility. HIS HONOUR: Yes. Ms Rees? REES: The order 2 follows precisely the orders of your Honour's judgment. HIS HONOUR: It does. REES: In this case, where your Honour has said where there is a long history of communication and notwithstanding as your Honour ultimately found between the parties as to the selection of the site, the construction of the two buildings, the installation of the businesses and the manufacturing plant, and so on, and an understanding by the parties and the installation and use of the plant as a longterm purpose, to frame the order in a narrow way that consent may be too narrow. We do not accept there will be anything required to grant the consent but it is prudent to follow the formulation your Honour had in mind. We do not expect there will be any building works required. We do not expect there will be any costs incurred by the defendants. But, in circumstances where it is apparent that the defendants will do absolutely exactly precisely and nothing more than what your Honour's orders in these orders, it would be better to have it as your Honour framed it. If, for example, they signed a consent without anything more, them coming back, when coming to the council or in land title search or whatever small task may be needed, in my submission the order your Honour formulated here is the appropriate one. HIS HONOUR: In relation to this, I said that the costs of obtaining the necessary approvals to be borne by CTA, is that reflected in these orders? REES: It is reflected in the notation in number one, our undertaking. HIS HONOUR: To do property on its costs? REES: Yes. HIS HONOUR: But if there were costs incurred on their party that approval does not follow para 51, what I said, but "by CTA …? REES: Yes, I think it may well. HIS HONOUR: So that should be reflected. In a sense, I think, there will have to be liberty to apply and restored, and there will be reservation of the matter for further consideration. So, if there was something which was unexpected in relation to what is needed to be done to obtain consent, I expect the parties would be making application? REES: Yes, your Honour."
After the making of the Orders on 18 December 2014, CTA filed an application under s 96 of the Environmental Planning and Assessment Act 1979 (NSW) to modify the 2009 Development Consent (the "First s 96 Application"). The First s 96 Application was prepared by Mr Chris Young, the town planner retained by CTA, and included in his introduction (emphasis added): "The site is presently used for the warehousing and sale of marble and tile products in one area and the manufacturing of dry sand and cement based products for use with tiles and marble products in a second area, basement car parking, office and showroom for the uses. Consent number 08-3044 dated 3 April 2009 approved the construction of an industrial factory/warehouse building with associated offices, ancillary showroom, basement car park, and landscaping subject to 138 conditions. This application relates only to the basement car park, the part used for manufacturing purposes, the relocation of car parking spaces and the structural alteration to the slab between the basement car park and the factory by the removal of part of the slab to allow an underslung semi automatic mixing machine to be installed at that location and attached to the main mixing machine and roof vents. The modification of the slab and installation of the machine occurred after occupation of the building in late 2010 and has operated since that time. The operator acted upon his understanding of requirements following consultation with Council. Such action has since proved to be in error. This application seeks to rectify the existing situation by modification of the existing consent. … The proposal does not include any increase to the existing hours of operation of the development or reduce car parking."
The First s 96 Application concluded with the statement that "the proposed modification is substantially the same development for which consent was originally granted".
The First s 96 Application was itself the product of further controversy between the parties on 9 March 2015. The nature of that controversy was recorded by White J in his judgment in Construction Technologies Australia Pty Ltd v Doueihi (No 3) [2015] NSWSC 1850 ("CTA No 3") (emphasis added): "6. The matter had earlier come before me on 9 March 2015 following an application by CTA to the Registrar to give consent on behalf of the first to fourth defendants to an application by CTA to the Blacktown City Council for modification of development consent. 7. On 9 March 2015 I gave a short judgment on CTA's application for an order that the Registrar give on behalf of the owners (the first to fourth defendants) their consent to an application by CTA to the Blacktown City Council for modification of the development consent. (Construction Technologies Australia Pty Ltd v Edward Doueihi & Ors (9 March 2015, no medium neutral citation)). The objections taken by the defendants to the plaintiff's application and my reasons for declining to direct the Registrar to sign the application on behalf of the owners, in the form the application then took, so as to give their consent, were as follows: "1 HIS HONOUR: Two objections are taken by the defendants to the plaintiff's application that the Registrar be directed to sign the application to the Blacktown City Council for modification of a development consent. One objection is that it is said that the Town Planner's report that accompanies and forms part of the application mis-states the relevant facts in stating that the activity being conducted does not involve the manufacture of adhesives, but merely involves the processing of mixing of dry sand, cement and pigments in a way that does not come within the definition of designated development. That may be a question which council will have to decide. I do not accept that by being required to give its consent to the application to the council, and giving its consent, the defendants would themselves be making a representation as to the truth of the statements in the Town Planner's report. 2 It is accepted that the defendants' giving their consent would not preclude their ability to make representations to the council to the opposite effect of what is contended for in the Town Planner's report. The defendants are not justified in refusing to give their consent on that ground. 3 The second objection, however, is that the application to the council includes an application that an area of land which is well outside the building which, on my findings, the plaintiff is entitled to occupy, should be designated as car parking spaces. I do not understand it to be in contention that if the council acceded to that application the permitted use of that area of land would be limited to its use as car parking spaces. Nothing in the findings which I have made would justify the imposition of limits on the lawful use to which the defendants could put that part of the land. I do not think that the defendants can be required to give their consent to the making of the application which would designate the four areas that are marked yellow on the plan which forms part of tab 3 behind exhibit SD-5. 4 Accordingly, I decline to direct the Registrar to sign the application on behalf of the defendants so as to give their consent to the application in the form in which it presently is."
The final form of the First s 96 Application was prepared after the hearing before his Honour on 9 March 2015. It was submitted to the defendants' solicitors on 31 March 2015 and it was signed by the defendants on 12 May 2015. What followed is set out by White J in CTA No 3. It is unnecessary for me to repeat it in any detail in these reasons.
On the same day it was signed by the defendants, their solicitors lodged a detailed objection to the First s 96 Application with the Council. In that objection they wrote that "The Owners instruct us that CTA has operated double shifts on the Property in breach of the hours of operation provided by the Consent". This appears to be the first reference in the evidence to a concern about CTA's hours of operation.
The parties were also negotiating the terms of the Lease. White J resolved one outstanding difference about the Lease on 3 September 2015 and directed that it be executed. That was done on 7 September 2015. The defendants' appeal from the Decision was heard on 14 September 2015.
The Lease includes: "7.4. Compliance with Laws and Requirements (1) At its own expense, the Tenant must comply with and observe all Laws and Requirements concerning: (a) its use of the Premises or any of the Tenant's Fittings or both; (b) the Tenant's business conducted from the Premises; and (c) the use or occupation of the Premises including any which arise as a result of the gender, disability or number of persons in the Premises, whether or not the Law or Requirement is addressed to, or required to be complied with by, the Landlord or the Tenant or both or by any other person. (2) If any Law or Requirement is notified to or served upon the Tenant, it must as soon as reasonably practicable provide a complete copy to the Landlord. (3) The Tenant must obtain the Landlord's consent which may not be unreasonably withheld or delayed before complying with any Law or Requirement under clause 7.4(1), which requires any variation, modification or alteration of the Premises. (4) The Tenant indemnifies and will keep indemnified the Landlord against any failure on the part of the Tenant and or persons under its control to comply with the provisions of this clause 7.4. (5) If requested by the Landlord, the Tenant must provide the Landlord with evidence of the Tenant's compliance with clause 7.4(1). (6) [T]he Premises may only be used for purposes that are both consistent with the use state in Item 12 of the Reference Schedule and that have been approved by the applicable Authorities."
The defendants now allege that CTA is in breach of their obligations under clause 7.4(1) of the Lease due to CTA's admitted non-compliance with the 2009 Development Consent.
While the matters referred to in paragraph [26] above were happening, there was yet another dispute between the parties. The First s 96 Application had not been determined by 1 July 2015. This constituted a deemed refusal by the Council. The deemed refusal gave rise to further argument between the parties, which was resolved by CTA No 3, where his Honour said on 4 December 2015 (emphasis added): "42. CTA submitted that by opposing its application to the council, the first to fourth defendants are in breach of order 2 made on 18 December 2014 that they do all that is necessary on their part for the obtaining of all necessary regulatory approvals by CTA. Counsel for CTA submitted that I went too far in saying in my judgment on 9 March 2015 that "It is accepted that the defendants' giving their consent would not preclude their ability to make representations to the council to the opposite effect of what is contended for in the Town Planner's report". Counsel submitted that I did not and could not have varied any of the final relief granted on 18 December 2014. Counsel also submitted that it was not right to say that it was accepted that the defendants could make representations to the council to the opposite effect of what was contended for in the Town Planner's report. 43. I see no reason to correct para 2 of my judgment of 9 March 2015. On that day counsel for CTA rightly accepted that an order requiring the defendants to sign the s 96 application would not preclude their making submissions to the Blacktown City Council about the application. In the context in which that concession was made it was clear that the defendants' submissions to the council would canvass all grounds that might be available to them to oppose the grant of regulatory approval. 44. The concession was correct. The orders of 18 December 2014 do no more than require the defendants to do what is necessary on their part to enable CTA to obtain regulatory approvals. The defendants' consent to the application was required for that purpose. The orders did not require the defendants to do more than that which is a necessary precondition to CTA's obtaining necessary approvals. They do not require the defendants to support the application. They contain no implication that the defendants are not entitled to oppose the grant of approval. That is clear from paras [97]-[104] of the principal judgment. The effect of what I there said was that the defendants' objections to the legality of CTA's operations should be determined by the appropriate regulatory authorities. The requirement that the defendants give necessary consents to applications for approval did not imply that the defendants could not oppose the grant of approvals."
The primary question which his Honour had to resolve in CTA No 3 was whether CTA was required to lodge an appeal against the deemed refusal of the First s 96 Application in order to comply with the Undertaking. His Honour declined to give such a direction. His Honour also resolved a complaint by CTA that the defendants had misrepresented to the Council the effect of the Orders. His Honour resolved that dispute in favour of the defendants: "46. By its amended statement of claim CTA had sought orders, the effect of which, if granted, would have been that there was an agreement for lease of areas that included nine car spaces in the basement opposite four enclosed car spaces, the hard stand outside the warehouse, and seven car spaces opposite the warehouse, or alternatively that the defendants were estopped from denying that CTA was entitled to a lease of those areas (amongst others). At the trial, the defendants did not dispute that CTA used these areas, but denied its continued right to do so. During the hearing I raised a question whether a claim that there was a long-term lease of land that was not within the building might raise the issue of whether there was a subdivision. Counsel for CTA said that consideration would be given to that question. After that question was raised CTA did not pursue further a claim to a right of exclusive possession of those areas. Nor did it contend that those areas should be treated as common property. 47. On 9 December 2014, that is after the publication of reasons and before the making of final orders, CTA's solicitors wrote to the solicitors for the defendants stating that: "We note that his Honour did not deal with the apron and parking spaces outside the CTA premises where our client's trucks load and unload and the factory staff park their cars ... To avoid further disputation between the parties, we request that these areas either be included in the definition of 'CTA premises' or that CTA otherwise be given parking rights over those areas." 48. The defendants did not agree. The defendants' solicitors said: "If your client seeks to have the 'apron and parking spaces' included in the definition of 'CTA Premises' in the Short Minutes of Order or in any lease executed, it will need to negotiate to do so with our clients via us as their lawyers". 49. The issue was not ventilated when final orders were made on 18 December 2014. The final orders did not include orders giving CTA exclusive possession or non-exclusive possession of such car parking spaces. Nor was any such right conferred by the lease that was entered into pursuant to the orders of 18 December 2014. After lengthy negotiation the terms of that lease were settled by agreement, save as to a dispute concerning the giving of directors' guarantees. I resolved that matter on 3 September 2015 and directed execution of the lease. No question of whether CTA should have a right to use external or other basement car parking spaces was raised on the settlement of the lease. 50. Whilst CTA is correct in saying that the Court was not asked to decide and did not decide whether CTA had the right to use such areas for car parking, it does not follow that the defendants cannot assert that CTA has no such right on land that is not subject to CTA's lease. CTA made a claim which included a claim for exclusive possession of additional car parking spaces on land outside the building. It did not pursue that claim. Nor did it pursue a claim for non-exclusive rights to use such areas for car parking. I see no reason that the defendants cannot assert that as legal owners of the land in question CTA does not have the right to park on the defendants' land without their consent, which it refuses to give."
On 9 December 2015 (five days after his Honour's judgment in CTA No 3), the Council refused the First s 96 Application.
CTA appealed the Council's refusal to the Land and Environment Court.
On 7 April 2016, the defendants wrote to CTA purporting to notify a number of alleged breaches of the Lease, including an allegation that CTA had been "accessing and operating from the [Property] outside the approved hours of operation."
On 20 April 2016, CTA's solicitors responded to the defendants' letter. That response included (emphasis added): "Operating hours 1. We refer to your clients' letter dated 7 April 2016 insofar as it relates to operating hours and to our letter dated 18 April 2016. We have taken some time to ascertain the history of this complaint. 2. In late June 2010, CTA moved onto the site: Construction Technologies Australia Pty Ltd v Doueihi [2014] NSWSC 1717 at [65]. CTA constructed an adhesives manufacturing plant and commenced production. Since then, that is, for more than 5 years, CTA has conducted its operations during the same business hours as it continues to do today. 3. In November 2012, CTA commenced these proceedings. After proceedings were commenced, your clients began to complain to Blacktown City Council about CTA's operations on the site. No complaints were made about operating hours. Rather, the complaints were directed to CTA operating an adhesives manufacturing plant on the site: [2014] NSWSC 1717 at [99]. 4. In your clients' evidence filed in the proceedings, Mr Doueihi made many complaints about CTA's occupation of the site, but nowhere complained about operating hours. … 5. On 3 February 2014, during opening in the hearing before White J, CTA's counsel took White J through a bundle of photographs of the site and described CTA's operations. At T8:10: Certainly the CTA operations are 24 hours, as I understand it … 6. The written descriptions on the photographs were admitted into evidence (T13.35) and his Honour proceeded on the assumption that what he was told in opening about the photographs and what they showed was correct "unless I'm told otherwise": T13.35. Whilst your clients' counsel disagreed about ventilation fans installed above CTA's plant (T13.40), no issue was taken with the description of the hours of operation. 7. The judgment of White J of 4 December 2014 considered your clients' complaints to Blacktown City Council and make it a condition of the relief granted to CTA that it obtain regulatory approvals for its activites: at [99], [104] and [251]. … 8. Your clients did not refer to operating hours on the following occasions when the matter has been back before the Court: a. hearing on 18 December 2014 to finalise the form of final orders; b. hearing on 9 March 2015, with further judgment given by White J on that date; c. hearing on 16 November 2015, with further judgment given by White J on 4 December 2015. 9. We have also checked the correspondence between the parties. The first time you have made any complaint to our client about operating hours is your clients' letter of 7 April 2016, being some five years since CTA began operating its plant for similar operating hours. 10. Your clients having now raised the issue, it seems to us that CTA's undertaking to the Court has been activated and CTA must lodge a Development Application to regularize matters in respect of operating hours. Your clients are also obliged to give their consent to the lodging of the Development Application. Our client has instructed a town planning consultant to prepare a Development Application and will have it to you shortly for your clients' signature."
Three comments need to be made about the letter of 20 April 2016. First, the conclusion in paragraph 10 is the genesis of the Motion. Second, it is important to note that in response to an objection taken by Mr Lockhart SC, the italicised words in paragraph 2 of the letter were not admitted into evidence as proof of the fact asserted in that sentence. There was no evidence before the Court that would permit a finding to be made as to when CTA first began operating for extended hours. Third, it appears that the suggestion in paragraph 9 of the letter that the defendants' first complaint about operating hours was the letter of 7 April 2016 was not entirely correct insofar as a complaint was made in the defendant's letter of objection to Council dated 12 May 2015 (see paragraph [25] above), although it was not made to CTA directly.
On 12 May 2016, the Court of Appeal dismissed the defendants' appeal from the Decision: Doueihi v Construction Technologies Pty Ltd (2016) 92 NSWLR 247; [2016] NSWSC 105.
As foreshadowed in the letter of 20 April 2016, CTA's town planning consultant, Mr Young, prepared the Second s 96 Application including a statement of environment effects dated 20 June 2016 in support of extending the hours of operation on part of the Property: "The area the subject of this application is shown as Area "B" on approved plans. The hours sought in the manufacturing area (Area "B") only are: Monday - Thursday: 6.30 am - 12.30am being: 6.30 am - 3.00pm Shift 1: 4 machine employees + 2 warehouse staff 3.00 pm - 12.30 am Shift 2: 4 machine employees Friday: 6.30am - 6.30pm being: 6.30 am to 12.30 pm Shift 1 12.30 pm to 6.30pm Shift 2 Saturday & Sunday 8.00 am -2.00pm being: 8.00 am to 2.00pm Shift 3: 4 machine operators This is a change in operation as follows; Monday to Thursday commence 30 minutes earlier and operate 6.5 hours later, Friday; commence 30 minutes earlier and operate 30 minutes later, Saturday; commence 1 hour earlier, Sunday; new 6 hour operation. Office use and hours are to remain unchanged to those approved."
On 10 June 2016, CTA's solicitors sent the defendants' solicitors a copy of the Second s 96 Application "for your clients' signatures".
On 15 July 2016, the Land and Environment Court gave effect to an agreement between the parties as to the terms upon which the First s 96 Application should be resolved. The agreed consent conditions provided for the same hours of operation as the 2009 Development Consent (Monday to Friday 7.00am to 6.00pm; Saturday 9.00am to 2.00pm).
On 22 July 2016, the defendants' solicitors wrote to CTA's solicitors setting out why the defendants did not consider that the Orders obliged them to consent to the Second s 96 Application.
The Motion was filed in Court on 27 July 2016.
On 1 September 2016 in a letter to the Council, CTA's solicitors wrote: "4.1 We confirm that CTA is currently operating in breach of the Relevant Consent in that it is manufacturing: 4.1.1. after 6pm until 11pm on Monday to Thursday (and on occasions, Friday) each week; and 4.1.2 from 6.30am on Saturdays."

Construction of the Orders - resolution

The Court accepts the defendants' submission that the keys to the proper interpretation of the orders are the use of the word "promptly" and the context. The necessary context is the Orders themselves and the Decision to which they are intended to give effect. It is unnecessary to look further afield.
For the reasons which follow, in my view the Orders were temporally limited by the use of the word "promptly" - "The plaintiff (CTA) undertakes to the Court at CTA's cost promptly to do all things necessary on its part to obtain all necessary regulatory approvals for CTA's occupation and use of the CTA premises and its manufacturing facility at those premises". This required CTA to obtain those approvals that were necessary for it lawfully to use and occupy the Property pursuant to the Lease that was to be executed in accordance with the Orders. In the absence of the Orders being varied or an alternative basis being identified which would compel the defendants to consent to the Second s 96 Application (see paragraphs [68] - [70] below), their refusal to do so does not enliven an entitlement in CTA to have a registrar execute the document in lieu of the defendants.
This construction of the Orders has three further consequences.
First, it means that the matters in relation to which approval was to be sought were not confined to matters specifically debated before White J or otherwise referred to in the course of the hearing. The approvals which fell within the Undertaking were for whatever was required to ensure CTA could lawfully do what it was entitled to do under the Lease at the time of the Lease formally coming into existence at law by its execution.
Second, whether or not something had been the object of complaint by the defendants (or anyone else) is irrelevant. So much follows from the clear intent of the Orders that CTA's occupation and use of the Property had to be lawful by reference to whatever regulatory approvals applied. For example, conduct that did not comply with the terms of a development consent would, prima facie, be unlawful whether or not the defendants had complained about it or even consented to it (assuming that the development consent did not contemplate any non-compliance being cured by the property owner's consent to that conduct).
Third, the execution of the Lease and the resolution of the First s 96 Application in my opinion exhausts the operation of the Undertaking and Order 2. This does not preclude an application to vary the Orders or some other legal basis being identified that would compel the defendants to consent to the Second s 96 Application.
In my view, the key to the proper construction of the Undertaking is to understand that the use of the word "promptly" in the Undertaking begs the question of "promptly after what?". There are two possible answers to the question: promptly after whenever a regulatory approval becomes necessary; or, promptly after the Orders were made. By reason of the policy, contextual and other matters to which I refer below, I consider that it must mean "promptly after the Orders were made".
It also follows as a matter of plain English that the "necessary regulatory approvals" were those necessary for CTA's lawful occupation and actual or contemplated use of the Property at the time the approvals were sought in connection with the Lease to be executed or that had been executed. That time was promptly after the Orders were made.
Turning first to the matter of policy, where there is some ambiguity or lack of clarity, a court's final orders should, in my opinion, generally be interpreted by reference to the public interest in the finality of litigation: interest reipublicae ut sit finis litium. In invoking that principle, I do so respectfully mindful of the recent observation of the Court of Appeal in Nadinic v Drinkwater [2017] NSWCA 114 at [37] that "few legal propositions are universally true" (per Leeming JA; Beazley P and Sackville AJA agreeing). Nevertheless, given that the overriding purpose of our court processes is the just, cheap and quick resolution of the true issues in dispute, maintaining the principle of the finality of litigation must be a cardinal consideration. Where the language of the orders permits, a construction which finally quells the dispute and ends the parties' recourse to the Court should be preferred. One manifestation of this policy in equity is a reluctance to grant relief which will require the supervision of the Court. This is not to derogate from the power of the Court to make express provision about when matters can return to it or where established principle requires it (see, for example, the principles in relation to contracts the subject of orders for specific performance referred to in paragraph [70] below).
In this case the principle of finality is to be applied so that if a party is to be required to do something more than once, orders should be construed to have that result only where it is expressly stated or where it is clearly necessarily implied. Neither of these reasons is present here, with the possibility of implication excluded by the other considerations set out in this part of my reasons. Applying the principle of finality also has the desirable practical consequence of minimising the likelihood (which has eventuated here) of the passage of time resulting in the inefficient outcome that someone other than the trial judge has to deal with the working out of the Orders.
In the present case, White J sought to quell the litigation by ordering the defendants to execute the Lease to which he had found CTA was entitled. For that relief to be available, it was necessary that CTA be lawfully entitled to do what the Lease allowed it to do. If it was so entitled because all the then necessary approvals had been granted, the relationship of the parties would be governed by the Lease. If the approvals were not forthcoming, then the relief to which CTA was entitled would have to be revisited, a consequence for which his Honour made express provision in Order 9. In terms of the principles governing the grant of equitable relief, a completely different discretionary landscape would have confronted the Court if it transpired that what the parties had contemplated would be done under the Lease to which they were bound in equity could not be done lawfully.
There are also four matters of context which inform the conclusions I have expressed in the preceding paragraphs.
First, the fundamental purpose of the litigation was formally to determine and regularise the rights of the parties. Given the conclusions which his Honour reached, that was to be done by bringing the Lease into existence. By this I mean converting what was a lease in equity which had its existence through the equitable estoppel into a lease at law by compelling the execution of a lease in the terms specified in the Orders. It would be inconsistent with this fundamental purpose to give "promptly" an ambulatory operation. It must mean promptly after the Orders were made and be tied to the execution of the Lease.
Second, paragraphs [99] to [104] of the Decision make it clear that his Honour was not concerned to resolve the particular matters that were said to constitute unclean hands (or illegal conduct) on the part of CTA. The point of his Honour's analysis in this part of the Decision was that CTA was entitled to the benefit of a lease of the Property for the purposes specified in that lease if they could be undertaken lawfully. It follows that the regulatory approvals were those necessary to give efficacy to CTA's entitlement to the Lease - those which would make its use and occupation of the Property lawful under the Lease to be executed pursuant to the Orders.
Third, Order 8 (that "CTA remove its existing caveat on the land upon execution of the Lease in accordance with paragraph 4 and have liberty to lodge a fresh caveat claiming its interest as lessee") supports the attribution of significant importance to the point of execution of the Lease in the scheme created by the Orders.
Fourth, in my view, Order 9 also demonstrates that the respective obligations to seek and consent to approvals was not intended to be continuous or iterative. It is not necessary in these reasons to delve into the authorities concerning what exactly is meant by "reserve further consideration" (see, for example, Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104 at [50]-[76] per Campbell JA, Tobias JA agreeing and, although he dissented in the result, Young CJ in Eq said (at [92]) that he had "little difficulty" with Campbell JA's "survey of the procedural law"). The point is that his Honour identified the reservation of further consideration as to whether further orders may be required (implicitly, to give effect to the Decision) "if the plaintiff does not comply with its undertaking noted in order 1, or regulatory approvals are not obtained". Those limitations bespeak an intention on the part of the Court to create a process that would culminate in the execution of the Lease which could be lawfully enjoyed by CTA. The Lease would then govern the relationship between the parties because that was what the Court had found had been CTA's expectation. Further recourse to the Court would only be required if CTA did not comply with the Undertaking or its compliance was unsuccessful because the regulatory approvals could not be obtained. In those circumstances the questions of whether or not the Court's order for the execution of the Lease should be vacated and some other relief considered would have had to have been dealt with.
There are two other matters I have taken into account.
First, in approaching my task I have carefully considered what White J had to say about the construction of the Orders in his decisions that are set out above after the Orders were made. I do not consider that the conclusion I have reached as to the proper construction of the Orders is in any way inconsistent with views expressed by his Honour. In my respectful opinion those views are to be accorded considerable weight because his Honour was the trial judge and the author of the Orders.
Second, the construction which I have favoured avoids an inconvenient and incongruous result. The rights of the parties have been regularised at law by the execution of the Lease and the resolution of the First s 96 Application. Understandably, neither party suggested that the Second s 96 Application would inevitably succeed or fail. However, if it was unsuccessful, then the consistent application of the construction of the Orders advanced by CTA would mean that the reservation of further consideration under Order 9 would be engaged because a "necessary regulatory approval" had not been obtained. Final relief having been perfected by the execution of the Lease and the resolution of the First s 96 Application, I do not think the Orders should be construed so as to open up too readily the prospect of that relief having to be undone or varied long after the final relief was granted.

Construction Technologies Australia Pty Ltd v Doueihi

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (2)

Cases Cited (12)

Cited By (1)