1. Each of the respondents, whether by themselves, their servants or agents or otherwise howsoever are restrained from encumbering or entering into any lease or licence with any other party with respect to the premises demised by lease dated 15 February 1999 between the first respondent as lessor and the first applicant as lessee.

2. The respondents are released from their undertaking given 12 April 2002 and extended 26 April 2002.

For the Applicants: Mr Malcolm Strang of Counsel, instructed by Eales and Mackenzie and B.G. Hicks and Associates Solicitors

For the Respondents: Dr C. Croft, SC with Mr A. Hanak of Counsel, instructed by Wright Smiths Solicitors

1. The Retail Tenancies Act 1986 introduced special protections for retail tenants in Victoria. Its provisions were modified and re-enacted by the Retail Tenancies Reform Act 1998. In both cases the protections given to retail tenants were, amongst other things, restricted to those whose premises had a "floor area" not exceeding 1,000 sq m. The application of this test which determined not only the substantive law which applied to the tenancies but also the venue in which disputes relative to the tenancy were to be heard and determined caused considerable doubt and difficulty for the arbitrators under the 1986 Act and for single Judges of the Supreme Court of Victoria on appeal under the Commercial Arbitration Act 1984. There were five separate decisions of single Judges under the 1986 Act as to the application of this test which were far from easy to reconcile with one another. In 1998 Sorbara Pty Ltd v D.J. & A.J. McCallum Pty Ltd reached the Court of Appeal. Phillips JA said:

"This is the first opportunity given an appellate court to determine the construction of para (a) [the part of the definitional provision in the Retail Tenancies Act imposing the 1,000 sq m limit] and it is an opportunity to which we must respond," [1998] VSCA 71; [1999] 2 VR 1, 5

2. By the time Sorbara's case had reached the Court of Appeal the Retail Tenancies Reform Act 1998 had been enacted, which provided in Section 3(5):

"(5) In determining the floor area of premises for the purposes of this Act, regard shall be had to the guidelines for the measurement of lettable area issued by the Minister and notified in the Government Gazette."

This provision allowed for guidelines which it was hoped would clarify the uncertainties which had dogged the application of the thousand square metre limit under the 1986 Act. Phillips JA continued:

"With what success remains to be seen. If I may simply say this in passing: the descent into extensive and apparently complex `guidelines' on what should be a comparatively simple test to apply, given its ramifications, bodes ill for the future, not only in the considerable expense which this could involve for those who seek to reinforce a claim be conducting small businesses, but also in the resultant use of scarce court resources."

3. Ormiston JA quoted a definition from the guidelines published on 1 July 1998 which was in the following terms:

"Dominant portion' is that portion of the internal or external (as relevant) finished surface of a vertical wall, which comprises in excess of 50 percent of the wall's surface area. If there is no dominant portion or if the dominant portion is not vertical, the measurement should be to the finished surface of the wall where it intersects the finished floor ..."

"It is hardly an auspicious start and the complexities of the enquiry envisaged under these guidelines seem far too extensive for determining whether tenants have the benefit of what is intended to be a benevolent piece of legislation. I say nothing at this time as to the propriety of provisions by way of `guidelines', published only in gazettes, which control definitions affecting the jurisdiction of courts, among other matters." [1998] VSCA 71; [1999] 2 VR 1, 4

The features of the present dispute amply justify the Court's strictures as to the application of the thousand square metre limit as a matter of general principle and also as to the difficulties attending the application of the "guidelines".

4. There is an old coolstore complex at 990 Moorooduc Highway, Moorooduc, at the corner of Eramosa Road, which has been renovated and converted to a tourist centre. In 1996 the freehold owner of the complex was Haybor Pty Ltd, the first respondent to this proceeding. On 13 June 1996 Sandford Towns Pty Ltd, a company controlled by the Costello family bought a business carried on on that site called Coolstore Bar and Bistro from Mirona Pty Ltd. The purchase was only of plant and equipment. The coolstore was in a rundown state and according to Mr Michael Costello, who is the manager of the first applicant, Coolstore Corporation Pty Ltd, more than half of the lettable shops in the complex were empty. About July 1998 Coolstore Corporation Pty Ltd took over the business.

5. By terms contract of sale dated 5 October 1999 Haybor sold the reversion to Mr Roman Schaedler, the third respondent to this proceeding. Mr Schaedler subsequently nominated RMCO Pty Ltd (the second respondent) as purchaser. The contract was varied by a subsequent agreement. There have been some questions raised by the applicants as to the standing of RMCO Pty Ltd as nominee under the contract of sale based upon the date of RMCO's incorporation. Ultimately this point was not pressed. In my view for the reasons that follow it is unnecessary and inappropriate to say more about it.

6. According to Mr Costello "in 1999 - 2000 RMCO Pty Ltd purchased the freehold from Haybor on a terms contract, and advised that it was the landlord". He said that RMCO began collecting the rent "in late 1999". According to Mr Costello RMCO is controlled by Mr Schaedler a matter which is not disputed. RMCO has exercised the powers of landlord since, even although it has not taken a transfer of the legal title to the reversion. In addition to its claim to entitlement to the rents and profits under the provisions of the terms contract of sale, it holds a power of attorney from Haybor. Mr Costello's affidavit indicates that Coolstore Corporation has attorned tenant to RMCO. To the extent that Coolstore's Hotel Ltd, the second applicant (whose involvement will be described shortly) can claim the status of tenant, it too has attorned to RMCO. That being the case, there is an estoppel between landlord and tenant in the absence of a claim based on title paramount. It is for these reasons that I see no reason to enquire further into the propriety of the nomination of RMCO as purchaser under the contract of sale.

7. By lease dated 15 February 1999, Haybor let the premises to Coolstore Corporation Pty Ltd for a period of three years and also granted it "three additional options each of three years". Clause 3 of the deed required the lessee to make written requests "to the lessor not less than three months [presumably "prior to"] the expiration of the term". The lease operated as an extension and renewal of the lease granted to Mirona Pty Ltd dated 25 September 1996 from which tenant, it will be recalled, Sandford Towns Pty Ltd purchased the assets of the business. The terms of this new lease commencing 15 February 1999 were not set out at length in the deed, rather the 1996 lease was annexed. The extent of the demised premises was identified by blue hatching on a plan contained in a page headed "Amended Plan" immediately behind the execution clauses and before their next 1996 lease.

8. The permitted use under the 1996 lease and hence under the 1999 lease was "bar and bistro and hotel if developed".

9. The premises consist basically of two portions, the Marble Bar and the Wooden Bar. The Wooden Bar includes a bottle shop which RMCO says was established without its approval.

10. In late 2000 Coolstore Corporation was negotiating with its chefs, Mr Peter Smith and Mr Darren Christie for them to purchase the Marble Bar portion of the premises. It was envisaged that Coolstore Corporation would continue operating the Wooden Bar itself. The negotiations with Messrs Smith and Christie were aborted but Mr Blair Freeman whom Mr Costello describes as "their backer" carried on with renovations to the Marble Bar. According to Mr Costello "Freeman spent a lot of money on the alterations. Freeman stated that he wished to buy the whole business for $300,000 from Coolstore. Coolstore's Hotel Pty Ltd was formed. The purchase price was later reduced by $70,000 to $230,000." Mr Costello said there was then talk that Mr Schaedler or interests associated with him would buy the Wooden Bar. He managed this bar for a while but without much success and this sale did not proceed.

"On 26th April 2001 myself, Michael Costello and Roman [that is Mr Schaedler] had a meeting (after Roman had indicated his interest in purchasing the Marble Bar) where I gave Roman a letter advising him that Coolstore's Hotel would sell the Marble Bar for $130,000 to Roman. Which is the same as Coolstore's Hotels Pty Ltd purchase price plus the $74,000 in alterations done to date leaving $15,000 - $20,000 as a carried forward loss [Freeman]. At this stage Coolstore's Hotel had only been trading a month in the Marble Bar.

At the end of the said meeting Roman advised he would not pay anything for any alterations that had been done at this time and that one day he would get it all for nothing."

12. Mr Freeman said that as from April 2001 he [presumably his company Coolstore's Hotel Pty Ltd] began paying rent of $2,000 a month directly to RMCO". According to Mr Schaedler RMCO received rent directly from Mr Freeman, presumably on behalf of Coolstore's Hotel Pty Ltd, in cash despite Mr Schaedler's initial objection that the rent should come from Mr Costello's company, Coolstore Corporation. Mr Schaedler said that according to Mr Freeman it did not matter where the cash came from as long as it was paid on behalf of the tenant. Mr Schaedler says he accepted the rent from Coolstore's Hotel on that basis. In June 2001 Mr Schaedler, Mr Freeman and Mr Costello cooperated in the submission of the "red line plan to the Liquor Licensing Commission" designating the Marble Bar as a separate liquor establishment.

13. In August there were discussions as to leasing arrangements for the Marble Bar. According to Mr Freeman, Mr Schaedler demanded that Mr Freeman's company take a new lease of the Marble Bar directly from RMCO, not just a sub-lease from Coolstore Corporation. As a result Mr Schaedler wrote a letter on the letterhead of RMCO Pty Ltd presumably to Mr Freeman's company, though not on its face addressed to anyone in the following terms:

With reference to the above we offer you the following Terms:

- Rent For the first three months $2,000 pcm plus GST

- Term of the Lease: Three years x three years x three years

Please note: the above is subject to our solicitors approval to the final items and conditions.

14. By a contract of sale of business dated 25 September 2000, Coolstore Corporation Pty Ltd sold the business carried on at the premises and described as "hotel, bistro and restaurant" to Coolstore's Hotel Pty Ltd for $230,000 on a walk-in, walk-out basis. There was provision for a deposit of $11,500 with some four further instalments, the last payable 210 days after the transfer of the liquor licence. In the particulars of sale next to the heading "Premises" the following appears "the business premises are occupied by the vendor as tenant". The schedule of equipment appears to relate to the whole of the demised premises, referring to two bars, the "Beach Bar" and the "Marble Bar". By letter bearing the same date viz. 28 September 2001 Messrs Eales and Mackenzie wrote to Mr Schaedler at RMCO stating that the firm acted for Coolstore's Corporation. The letter continued:

"We advise that Coolstore's Corporation has entered into a contract of sale of business on a terms sale basis.

We advise that the purchaser has entered into a management agreement effective from signing of the contract (25/09/01) to take over the management of the business. Mr and Mrs Costello still have involvement on a day to day basis.

We should be pleased to receive your requirements with respect to the transfer of the lease.

Should you have any further queries please do not hesitate to contact the writer."

15. It is noteworthy that this letter fails to identify the purchaser, hence, in a letter dated 11 October 2001 Messrs Wright Smith stating that they acted for RMCO said "Before we can consider the contents of your facts would you please identify and provide full particulars of the purchaser". By a letter dated the 12th of November 2001 Eales and MacKenzie furnished particulars of Coolstore's Hotels and enquired as to whether the standard Law Institute Transfer of Lease would be satisfactory. By facsimile dated the 28th of November 2001 Wright Smiths on behalf of the landlord agreed to the use of the Law Institute form of transfer but sought references for the assignee in accordance with Clause 4.3.2 of the lease. They sought "two financial references and two business references". The final sentence of the letter stated "the current tenant did not exercise their option to renew the lease and our client requires vacant possession upon the expiry of the lease on 14 February 2002". The facsimile of 6 December 2001 from Eales and Mackenzie referred to two "private" referees and two "business" referees giving their contact particulars. As to the last point of the letter, Mr Riccioni of Eales and Mackenzie asked Mr Nicholson to contact him and discuss the matter. By facsimile of 7 December 2001 Wright Smiths said that their client required written references rather than the names of the referees. By letter dated 23 January 2002 Eales and Mackenzie enclosed "three references as requested". By facsimile of 6 February 2002 Wright Smiths complained that only three references, two financial and one business had been furnished and there was one reference to come. They also raised queries as to one of the references that had been furnished. The letter concluded "we might add in the meantime that none of the references supplied by you to date show that the new tenant has either the financial backing or business experience to successfully run the hotel". Under cover of a further letter of 12 February 2002 Eales and Mackenzie furnished a fourth reference. By facsimile dated 14 February 2002 Wright Smiths denied that the Retail Tenancies Reform Act applied to the premises, asserted that the references were unsatisfactory and stated that "if your client does not properly vacate the premises in accordance with the covenants of the lease by midnight tonight then our client reserves its rights to re-enter the premises as previously advised". On the same date R.G. Hicks and Associates sent a facsimile to Wright Smiths stating that they acted for Mr Blair Freeman. It accused Mr Schaedler of RMCO of having impugned Mr Freeman's character by alleging that he was "not a fit and proper person with respect to the assignment of the lease". They demanded "a reasonable explanation as to the basis of such allegations forthwith" and reserved their client's rights as to defamation. In a facsimile of the following date Wright Smiths declined to enter into debate on the point. R.G. Hicks and Associates complained about threats of eviction and the landlord's failure to contact any of Mr Freeman's referees. The letter concluded "please note that unless your client forthwith desists from such action then our client will hold your client personally, together with RMCO Pty Ltd, Haybor Investments Pty Ltd and its directors jointly and severally responsible for the damage being incurred by our client's business." By facsimile of 25 February 2002 Wright Smiths reiterated that the lease had expired, stated that a writ for possession had been issued and suggested "that to save the parties from further cost and disappointment the tenant and your client vacate the property immediately." Meanwhile, on 23 February 2002 Eales and Mackenzie stated that a survey plan indicated that the leased premises were subject to the Retail Tenancies Reform Act and continued: "therefore your client has failed, pursuant to the Act, to prove written notice of our client's right to renew. Until your client provides the appropriate notice required pursuant to the Act the period for which our client is required to exercise its option has not commenced, and the lease continues."

16. On 5 March RMCO used self-help to enter the premises and take possession.

17. There followed correspondence relative to the removal of certain items from the premises including perishables. On 11 April the present application was commenced and came on for hearing before me upon an application for interlocutory relief on 12 April. At that stage the applicants had filed no affidavits. The order records that the respondents by their Counsel undertook "that until 26 April 2002 or further order they will not encumber the premises to enter into a lease or license for the premises without the consent in writing of the applicants". I then gave directions for the filing and service of affidavits and fixed the hearing of an application for an interlocutory injunction on 26 April 2002. That date was selected as being one convenient for Senior Counsel for the respondent. On 26 April the undertaking given was extended and the matter was fixed for hearing on 27 May 2002. Meanwhile, on 22nd April 2002, the directors of Coolstore Corporation appointed Clyde Peter White as administrator of the company pursuant to Section 436E of the Corporations Act 2001. It proved impossible to prepare for a final hearing on 27 May as a result, inter alia of the dislocation of matters caused by the administration of the first respondent. In accordance with the resolution of a creditors' meeting carried on 17 May, the company entered into a deed of company arrangement dated 22nd May 2002 under Section 444A of the Corporations Act. The substance of the arrangement is that the applicant will seek to prosecute these proceedings to a satisfactory conclusion and receive the proceeds of the sale of its undertaking to the second respondent which proceeding will then be used to pay the company's debts.

18. In the event the hearing on 27 May which was initially intended to be the final hearing and determination of the proceeding went forward solely as an application for interlocutory relief. After some deliberation and having taken instructions, Mr Strang on behalf of the applicants sought an order in terms of a summons dated variously 11 or 12 April "that until the hearing and determination of this proceeding each of the respondents whether by themselves, servants, agents or howsoever not encumber the premises or enter into any lease or license with any other party with respect to the said premises". Mr Strang said that his clients did not believe that the trouble and expenditure entailed in re-establishing themselves at the premises solely for an interim period was justified.

19. The applicants through their Counsel Mr Strang, seek relief against the respondents on a number of related bases. The primary contention is that these premises are retail premises within the meaning of the Retail Tenancies Reform Act 1998 and hence are governed by that statute. Section 18(3) of that statute provides:

"(3) If a retail premises lease contains an option exercisable by the tenant to renew the lease for a further term, the landlord must notify the tenant in writing of the date after which the option is no longer exercisable at least 3 months before that date."

The respondents concede that no such notice has been given. Sub-section (4) of Section 18 provides that in those circumstances:

"... the retail premises lease is to be taken to provide that the date after which the option is no longer exercisable is the day that is 3 months after the landlord gives the tenant the notice required by that sub-section [viz. sub-section (3)] and, if that date is later than the date of the expiry of the term of the lease, the lease continues ..."

According to sub-section (6) where the lease is extended pursuant to sub-section (4) the terms and conditions of the extended lease "are the same as those upon which the lease was held immediately before it was continued".

20. On this basis it is said the first applicant continues to have the entitlements of a tenant under the lease and will have those entitlements giving it a further window of opportunity to exercise the option to renew by virtue of the statutory extension effected by Section 18. Further, it is said that the second applicant as assignee or prospective assignee enjoys some sort of beneficial interest in the lease and the business.

21. The second leg of the applicants' argument is that the second applicant company Coolstore's Hotel enjoys rights under an agreement to lease deriving from the letter written by Mr Schaedler in August 2001.

22. Mr Strang submitted that it was possible for the second applicant to enjoy concurrently rights deriving from the two legs of the applicants' argument viz. a derivative right arising from Coolstore Corporation's rights as tenant under the statutory extension to the lease allegedly affected by Section 18 of the Retail Tenancies Reform Act and direct tenancy rights to the Marble Bar being part of the demised premises by virtue of the letter of August 2001.

The Application of the Retail Tenancies Reform Act 1998

23. The Retail Tenancies Reform Act 1998 bestows certain protections upon tenants under retail premises leases. A lease is defined as one having a term of not less than one year (Section 3(1)). There is no definition of a retail premises lease but it is reasonable to infer that the retail premises lease is a lease of retail premises. Retail premises are defined as follows:

" `Retail premises' means any premises that under the terms of the lease relating to them are used, or are to be used, wholly or predominantly for the carrying on of a business involving the sale or hire of goods by retail or the retail provision of services, but does not include -

(a) premises that have a floor area that exceeds 1,000 square metres; or

(b) premises that are used wholly or predominantly for the carrying on of a business by the tenant under a name or mark identifying, commonly associated with, or controlled by the landlord or a person or incorporation within the meaning of the Corporations Act connected with the landlord; or

(c) premises that are used wholly or predominantly for the carrying on of a business by the tenant on behalf of the landlord as an employee or agent of the landlord; or

(d) premises the lease relating to which is held as a tenant by

(i) a corporation within the meaning of the Corporations Act that but would not be eligible to be incorporated in Victoria as a proprietary company;

(ii) a subsidiary of a corporation referred to in sub-paragraph (i) or

Whilst there was some debate as to the precise characterisation of the business carried on by the first applicant on the premises, both parties were agreed that in light of the terms of the lease and the form of business carried on, the premises fell within the primary paragraph of this definition.

24. If these premises are retail premises the lease of February 1999 was entered into after the commencement of the Retail Tenancies Reform Act and is for a term of more than one year and therefore seems to be within the scope of the statute. The 1998 Act would apply to it despite its having been entered into in pursuance of an option granted by a lease which commenced before the 1998 Act (see Section 4(1)).

25. Nevertheless, the respondents through their Counsel, Dr Croft SC and Mr Hanak submit that the premises are not retail premises and therefore the statute has no application. This submission is based upon paragraph (a) of the definition, excluding premises that have a floor area exceeding 1,000 sq m.

26. Dr Croft relied upon the evidence of a surveyor Mr Runting who assessed the floor area of the premises at 1,044.6 sq m made up as follows:

27. An initial question that arose was the date at which these measurements should be made, whether at the commencement of the lease as I had suggested in Lyle Cash Pty Ltd v Mayfly Pty Ltd [2000] VCAT 397; (2000) V ConvR 58-542 (a case dealing with the floor area limitation in the definition) or as at the date of commencement of these proceedings according to the approach adopted by Hedigan J in Leung v Hungry Jack's Pty Ltd 200 V ConvR 54-614 and by O'Bryan J in Towercom Pty Ltd v Strathfield Group Limited 201 V ConvR 54-634. These two Supreme Court decisions dealt with paragraph (d) of the definition relative to corporate status. In both cases the corporate status of the tenant changed during the term of the lease; in Hungry Jack's case when the tenant privatised, the lease became regulated by the retail tenancies legislation and in Towercom with the tenant "going public" the lease previously regulated by the retail tenancies legislation became unregulated. At paragraph 33 of his judgement in Towercom (page 62,206) O'Bryan J said:

"I am of the opinion that premises leases as `retail premises' can cease to be `retail premises' between the term of the lease if any [emphasis added] of the disqualifying characteristics specified in S.3(1)(a), (b), (c), (d) or (e) occur. The converse may create a `retail premises lease' for the purposes of the Act. Premises under the terms of the lease may become `retail premises' because the disqualifying characteristics specified no longer disqualify the premises and the tenant from and the protection afforded by the Act."

28. In Lyle Cash I had considered that the consequences of a lease changing its status during its term from regulated to unregulated or vice versa were too chaotic to have been intended by Parliament. A landlord acting upon proper legal advice may enter into a lease in unregulated terms and conduct itself on the basis that it is not bound by the terms of the Retail Tenancies Reform Act. Nevertheless action taken by the tenant to change its corporate status by "privatisation" as in Hungry Jack's case and perhaps unknown to the landlord may subject the landlord to new statutory obligations of which it has no knowledge and perhaps no means of knowledge beyond a day-by-day monitoring of the returns kept by the Australian Securities and Investments Commission as corporate regulators. Clauses in the lease may be invalidated, unintended and uncontemplated extensions of lease by way of statutory options may arise under provisions such as Section 15, Section 18 of the Act and so forth. Conversely a tenant with relatively large premises close to the 1,000 sq m limit may enter into a lease enjoying the protection of the Retail Tenancies Reform Act and lose that protection during the terms of the lease by, for instance, adding a mezzanine floor creating a net increase in floor area which causes the total to exceed 1,000 sq m. Whilst there might be some room to argue that the remarks of O'Bryan J in Towercom with respect to paragraph (a) of the definition are obiter, they represent the considered view of the Supreme Court and whether ratio or dictum should be applied by the Tribunal unless overruled or disapproved by some further decision of the Court of Appeal or Supreme Court. Mr Strang submitted that I should regard His Honour's remarks with regard to paragraph (a) as mere dictum and apply the approach that I adopted in Lyle Cash. He said this because according to Mr Costello's affidavit a significant part of the demised premises were because of their state at the commencement of the lease "unavailable".

29. As noted in the quotations from Sorbara's case at the beginning of these reasons, Parliament has provided in Section 3(5) of the Retail Tenancies Reform Act 1998 for the use of guidelines to govern the process of measurement for the application of a thousand square metre limit. The sub-section states as follows:

"(5) In determining the floor area of premises for the purposes of this Act, regard shall be had to the guidelines for the measurement of lettable area issued by the Minister and notified in the Government Gazette."

30. The Minister has issued two sets of guidelines. The first in Victorian Government Gazette S67 dated 1 July 1998 and the second in Victorian Government Gazette S126 dated 19 August 1999. The 1999 guidelines revoke the 1998 guideline.

31. Mr Strang's primary submission on behalf of the applicant was that the guidelines of the 1st of July 1998 applied and when applied to the measurement made by Mr Runting reduce the floor area of the demised premises below 1,000 sq m thus placing these premises within the definition of retail premises in the Retail Tenancies Reform Act. A secondary submission was that since the approach adopted by Hedigan J in Hungry Jack's case and O'Bryan J in Towercom applied the various excluding paragraphs of the definition of retail premises according to the facts existing as at the date of commencement of the relevant proceeding, it was appropriate to apply the guidelines in similar fashion. The 1999 guidelines applied, he submitted, as being the guidelines in force at the date of commencement of the present proceeding. These guidelines, likewise, in Mr Strang's submission would see the demised premises measured as having a floor area of less than 1,000 sq m thus bringing them within the definition of retail premises in the statute.

32. Dr Croft and Mr Hanak submitted that the Minister's 1998 guidelines did not, according to their terms, apply to the present circumstances and hence one was left to be guided by the same general principles which had been enunciated by the Court of Appeal in Sorbara's case (thereby including virtually the whole of the demised premises). It was on this basis that Mr Runting had carried out his survey and reached the result already described. Implicitly Dr Croft also rejected the view that the 1999 guidelines applied.

33. I can immediately dispose of the contention that the 1999 guidelines apply. In Lyle Cash a case heard on 24 January 2000 and filed after the issue of the 1999 guideline, I concluded that the issue of the 1999 guidelines was not intended retrospectively to reclassify leases. I did so on the basis of the classic exposition of the presumption that legislative provisions dealing with matters of substance rather than procedure do not operate retrospectively set out in the judgment of Dixon CJ in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267. In my view the approach adopted by Hedigan J in Hungry Jack's case and O'Bryan J in Towercom, namely that the definition of retail premises must be applied in an ambulatory fashion according to changes in matter of fact does not lead to the conclusion that the definition should also operate in an ambulatory fashion as to changes in the law. The presumption against giving retrospective effect to changes in the substantive as distinct from procedural law is firmly imbedded and there is nothing in the Retail Tenancies Reform Act, either set of guidelines or for that matter in the judgment of Hedigan J and O'Bryan J which would exclude that presumption. Accordingly, since the lease in question was entered into in February 1999 the guidelines, if any, which apply, are those appearing in the Gazette of 1 July 1998 and issued by the Minister on 23 June 1998. These guidelines consist of two chapters, the first of which is expressed to apply to:

* strip shops, freestanding shops, semi-detached or terrace type shops in suburban streets.

In Lyle Cash I held that the 1998 guideline did not apply to a hotel of the traditional type being a freestanding hotel in the country town of Beechworth.

34. In the present case, whilst Dr Croft was prepared to concede that the complex of tenancies surrounding the demised premises constituted a "retail shopping centre" within the meaning of Section 3 of the Retail Tenancies Reform Act because there were more than five retail premises with a common landlord all on the one plane. He said that for there to be a "cluster" of premises it was not necessary that they be contiguous. He referred to the analogy of a cluster of grapes which are connected only by the stem and branches of the vine. A cluster of non-contiguous shops would be a shopping centre within the statutory definition even if they were only connected by "ant tracks" as they are colloquially described. Inferentially he conceded that that was the situation at the Coolstore complex. He rejected the contention that these premises should be measured in accordance with Part 1 of the 1998 guideline because they form part of a shopping centre. He submitted:

"The leased premises are hotel premises ... the 1998 guidelines do not apply to hotel premises ... it is submitted that the reference in the 1998 guidelines to shopping centre is a reference to shops [emphasis added] located in shopping centres. This is made clear by the reference to the 1998 Act definition of shopping centre which applies where there is a cluster of five or more premises with the same landlord. Therefore, the definition could apply where there are five or more warehouses, industrial buildings and showrooms all with the same landlord. A cluster of such premises would fall within the definition of shopping centre and therefore subject to Chapter 1 of the 1998 guidelines. The same premises would also be subject to Chapter 2 of the 1998 guidelines. This interpretation would therefore create conflict between Chapters 1 and 2 of the 1998 guidelines."

35. Dr Croft also observed that the 1999 guidelines repeat in unchanged form, Chapter 1 of the 1998 guidelines. They deal in Chapter 4 specifically with motels, hotels, residential hotels and cabins. Accordingly, he said that if Chapter 1 of the 1998 guidelines was regarded as extending to every set of retail premises within a shopping centre, the unchanged terms of Chapter 1 of the 1999 guidelines would have the same effect. It would then be in conflict with Chapter 4 which in the case of hotels and motels deals specifically with them. He noted that when the Minister issued the 1999 guidelines she also issued a press release dated 20 August 1999 stating "hotels and motels have been brought under the Retail Tenancies Reform Act 1998 following gazetted changes to the Act this week [the press release is quoted at paragraph 22 of my reasons in Lyle Cash]". This in Dr Croft's submission was an acknowledgment by the Minister that her earlier guidelines did not deal with hotels. He said that this approach of reading down the generality of words to be found in the guidelines was consistent with my determination in Adrirel Finance Pty Ltd v Massada Nominees Pty Ltd 2001 V ConvR 58-560. There I declined to apply Chapter 1 of the 1998 guidelines to a service station on the basis that it was a "commercial building" acknowledging that in a broad sense a service station could be a commercial building I held that to give the expression that width would render the references to all the sorts of premises in the two chapters of the guidelines otiose. In the result, I adopted the view that "commercial buildings" for the purposes of the 1998 guidelines were office buildings.

36. Alternatively, Dr Croft submitted that if these premises were not to be characterised as a hotel, they should be characterised as a "tavern". He said:

"A tavern is part of Chapter 4 of the 1999 guidelines and, it is submitted, is to be treated the same way as a hotel."

37. In support of his contention that these premises which admittedly did not provide any accommodation were nevertheless to be regarded as a hotel, he referred to the dictum of Wilde CJ in Daken v Hartford Fire Insurance Co Limited [1972] NZLR 971, 979 quoted in Words and Phrases Legally Defined Third Edition, Volume 2 at page 370 where His Honour said:

"Upon consideration I think that in normal New Zealand parlance the word `hotel' is not necessarily restricted to premises that supply accommodation. In ordinary usage I think it is quite commonly applied to a tavern where only liquor and not accommodation is supplied."

He noted that in one of his reports the administrator of Coolstore Corporation described its business as that of a "hotel". He also referred to the definition of "inn" in the Carriers and Innkeeper's Act 1958 Section 26 where the following definition appears:

" `Inn' means any hotel or motel and includes any establishment held out by the proprietor as offering food, drink and, if so required, sleeping accommodation without special contract, to any traveller presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and who is in a fit state to be received."

38. He also referred to Halsbury's Laws of Australia paragraph [40-585] Service 131 where the learned editors refer to the definition in the Victorian statute already quoted and continue:

"At common law an `inn' is a house where the traveller is furnished with everything which he or she has need for whilst upon his or her way and common inns are instituted for passengers or wayfarers, though it is not necessary, in order that a person may be a guest, that the person must have come for more than temporary refreshment.

If accommodation is provided under some special contract, for example to a lodger, and the host is not prepared to provide accommodation to any and all reasonable comers the host is not an innkeeper."

39. In popular Australian parlance the words "pub" and "hotel" are synonymous. The old licensing laws did not generally permit the conduct of public liquor bars except in association with the provision of accommodation. The Licensing Act 1958 provided that a victualler's licence should not be granted in the City of Melbourne unless the "house" contained "at least six bedrooms for public accommodation" or for establishments built after 1 March 1954 "such greater number of bedrooms as the licensing court thinks necessary ...". Establishments outside the City of Melbourne were required to have not less than three bedrooms or in the case of those built or re-built after 1 March 1954 "such greater number of bedrooms as the licensing court thinks necessary". The Liquor Control Act 1968 replaced the "Victualler's licence" with an "Hotelkeeper's Licence". The requirement to provide accommodation was retained but could be waived in the case of a "restricted licence". See Sections 48 and 48. Without tracing all the legislative changes that have taken place since those far off days, the Liquor Control Reform Act 1998 no longer provides for "hotel" licences or "victualler's licences" but rather (a) general licences and (b) on-premises licences. These licences do not require the provision of accommodation. It would also seem that the word "hotel" is not one which has a fixed legal meaning. I accept Dr Croft's submission that this establishment including as it does two bars for the consumption of liquor and as I was told from the bar table, a packaged liquor licence for the "Wooden Bar" could properly be regarded as either a tavern or an hotel. I am however unable to accept Dr Croft's submission that the reference in Chapter 1 of the 1998 guidelines to "shopping centres" should be restricted in the manner which he contends. First the expression "shopping centre" is not the defined term in the Retail Tenancies Reform Act, namely "retail shopping centre". The expression is therefore more likely used in its popular sense, though if it matters, I believe that the Coolstore complex as a whole, answers both the description of both "shopping centre" in the popular sense and "retail shopping centre" in the defined sense in the Retail Tenancies Reform Act. There is nothing in Chapter 1 of the guidelines or elsewhere which directly confines the reference to "shopping centres" to "shops" in shopping centres. As Dr Croft rightly observed shopping centres frequently do include premises which are retail premises within the meaning of the 1998 Act but are not "shops". For instance post office agencies, small law offices and accountancy practices with "store fronts" and so on. In Lyle Cash I concluded that a "free-standing" country hotel was not within the 1998 guidelines at all. In my view that conclusion by no means leads to the view that an "hotel" or "tavern" in a shopping centre ought not to be regarded as covered by Chapter 1 of the guidelines. The word "shop" is not a defined term in any of the statutes or guidelines to which I have been referred. It is certainly not a term defined in the guidelines themselves. I see nothing to imply the restriction in the meaning of "shopping centre" for which Dr Croft contends. Whilst it is conceivable, it is in my view hardly likely that there would be a "cluster" of warehouses or industrial buildings which would answer the definition of "retail shopping centre" in the Retail Tenancies Reform Act. Even if there were, that factor in itself would not necessarily mean that the "cluster" would be regarded as a "shopping centre" for the purposes of the guidelines. If however there were a shopping centre of warehouses or perhaps a more conventional shopping centre which included one or more warehouses, there would be a question as to which chapter of the 1998 guidelines would apply to a particular retail premises/warehouse. It may be that the twin maxims "generalia specialibus non derogant" and "generalibus specialia derogant" would refer one to the special provisions in Chapter 2 rather than the more general treatment of "shopping centre" in Chapter 1; or alternatively and perhaps more probably warehouse and industrial buildings in shopping centres would be dealt with in Chapter 1 and freestanding warehouse and industrial building in the later chapter; but that question does not arise today. In the present case there is nothing dealing specifically with hotels, taverns, or inns in the 1998 guidelines. In my view a hotel, tavern or inn that is located in a shopping centre is dealt with by Chapter 1.

40. The 1999 guidelines are different, they do deal specifically with hotels, motels and taverns in Chapter 4. Even although the text of Chapter 1 of the 1999 guidelines is the same as the text of Chapter 1 of the 1998 guidelines, the new provisions of Chapter 4 are part of an entirely newly issued set of guidelines. They are not a new amendment to the 1998 guidelines. This means, in my view, that Chapter 1 of the 1999 guidelines might bear a different meaning to Chapter 1 of the 1998 guidelines despite being textually the same because they are found in different contexts with Chapter 4 dealing only with freestanding hotels and taverns. Alternatively the allocation of a hotel or tavern in a shopping centre as between guideline chapters might be resolved by the Latin maxims already quoted. None of those matters arises today. In my view Chapter 1 of the 1998 guidelines applies to these premises or at the very least there is a serious question to be tried as to whether it does.

41. The result of Mr Runting's survey is that the respondents have a bare 44 sq m margin to exclude the operation of the retail tenancies legislation. If the application of the guidelines deletes any more than 44.6 sq m of floor area from the proper count, the premises will be retail premises and the lease of February 1999 will be a retail premises lease.

42. What is the result of the application of Chapter 1 of the 1998 guidelines? According to Clause 1.3.1 of that chapter, toilets are to be excluded. Mr Runting's survey shows three sets of toilets in the premises. The first set are described as "staff toilets" and are 21 sq m; the second set described simply as toilets are 39.8 sq m; the third set described simply as toilets are 8.1 sq m. These deletions in themselves total 60.8 and whilst there may be other areas to be deleted, those in themselves without going further are sufficient to bring the floor area for the purposes of the application of 1,000 sq m test below 1,000 sq m. It follows therefore that there is a serious question to be tried as to whether these premises are retail premises within the meaning of the Retail Tenancies Reform Act 1998. There is therefore also a serious issue to be tried as to whether in the circumstances the 1999 lease does not continue under the terms of Section 18 for the benefit of the first applicant.

The Alleged Lease of the Marble Bar of August 2001

43. In my view there is no serious question to be tried as to any entitlements which Coolstore's Hotels Pty Ltd claims to have as tenant under the letter from RMCO dated 17 August 2001. The inclusion of the note "the above is subject to our solicitors approval to the final terms and conditions" is in my view sufficient to indicate that the letter did not constitute an offer which Coolstore's Hotel could simply accept resulting in a binding contract and hence an agreement to lease. As Dr Croft has submitted, the inclusion of words such as "subject to contract" as to which the note in the present letter is cognate, has generally been regarded as sufficient to deprive any apparent agreement of contractual force or deprive any apparent offer of the character which would allow it simply to be accepted as leading to the formation of a contract. Dr Croft referred to the joint judgment in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353, 360-2 and 363; Darebin Court Properties Pty Ltd v Fortress Pty Ltd and Anor [2001] VSC 256 at [8] and [15] - [24]; Seventh Shar Nominees Pty Ltd and Anor v Hortico Pty Ltd [2000] VSC 155 per Mandie J especially at paragraph [27] and [31]. Moreover the actions of Mr Freeman and his company since the making of the alleged agreement to lease by pursuing a purchase of the entire business from Coolstore's Corporation and seeking to take an assignment of the lease to the entire premises is inconsistent with their having been a binding agreement to lease part of the premises directly to Coolstore's Hotel Pty Ltd. It is however quite consistent with that matter's having been discussed and been the subject of inconclusive negotiations not leading to any binding agreement. The actions of the parties to a contract after the contract is made are generally not admissible as to the proper construction of the contract: see Ryan v Textile, Clothing and Footwear Union of Australia [1996] VicRp 67; [1996] 2 VR 235 and FAI Traders Insurance Co Limited v Savoy Plaza Pty Ltd [1993] VicRp 76; [1993] 2 VR 343. When the question is whether a contract has been made at all the actions of the party after the making of the alleged contract are admissible to assist in determining whether a contract has indeed been made. Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153, 163-4 per Heydon JA and the cases there cited.

44. What in the circumstances is the position of Coolstore's Hotel Pty Ltd? No deed of assignment has been executed in its favour and RMCO has indicated a lack of consent to the assignment to it. The sale of business agreement general condition 5 obliged Coolstore's Corporation to procure either an assignment of the 1999 lease to Coolstore's Hotel or else the grant of a new lease on the same terms. Neither of these events has occurred. Dr Croft submitted that in the circumstances general condition 5 constituted no more than a condition precedent to settlement and did not give Coolstore's Hotel an equitable interest in the lease. He said this point was reinforced by the fact that the clause provided either for an assignment or the grant of a new lease. Accepting that an agreement to sell Blackacre otherwise specifically performable would give the purchaser an equitable interest in Blackacre, he submitted however that a contract which enabled the vendor to convey either Blackacre or Whiteacre would create an equitable interest in neither.

45. The argument did not descend to any particularity as to precisely what interests if any a person having an entitlement to an assignment of lease enforceable against the existing lessee might be regarded as having in the leasehold. In circumstances where either no consent to assignment (one being required by the terms of the lease) had been forthcoming or where it had actually been refused, according to Dr Croft, (in his scholarly capacity) and Professor Bradbrook in their work Commercial Tenancy Law in Australia (Second Edition) 1997:

"An assignment or sub-letting without consent (where such consent was required by the terms of the lease) is a once and for all breach and is incapable of remedy: ... but such an assignment or sub-letting is not void, although it may be avoided if the lessor chooses to re-enter under a proviso for re-entry" paragraph [15.16] page 310

46. In my view Dr Croft's analogy of the contract to sell either Blackacre or Whiteacre is not apposite. Here what is required is either the existing lease or one on identical terms. In my view it is more likely than not that so long as the contract of sale of business remains on foot, the second respondent enjoys some sort of equitable interest in the lease, of course as long as the lease remains in existence. These matters were not touched upon in any detail in argument and it would be inappropriate to say more. What I have said already indicates that I believe there is a serious issue to be tried as to whether assuming the 1999 lease remains in force by way of statutory extension, the second applicant Coolstore's Hotel Pty Ltd has an equitable interest in it and an enforceable entitlement, at least as against the first applicant Coolstore Corporation to an assignment of it.

47. The issue of assignment was treated by RMCO on the basis that the 1999 lease was unregulated; certainly a number of references were furnished to RMCO. I was not taken to those references in any detail, though they are exhibited to the affidavits. In the circumstances I believe I should conclude that there is a serious issue to be tried as to whether in the circumstances RMCO has acted reasonably and in accordance with the Retail Tenancies Reform Act in refusing to consent to the assignment of the lease to the second applicant.

48. Even in the absence of any findings as to the entitlements of the second applicant, I believe the matters that I have referred to already with respect to the first applicant's entitlements are sufficient to demonstrate as to the first limb necessary to make out a claim for interlocutory relief, namely that there is a serious issue to be tried, as to the relief it seeks. This conclusion is subject to issues of balance of convenience and a number of discretionary issues relied upon by Dr Croft to which I will now turn.

49. Dr Croft observed that RMCO took possession of the premises on 5 March 2002. Thereafter, the applicants engaged in a course of conduct "the effect of which was to acquiesce in the re-entry. The conduct is evidenced by the extensive steps taken to remove ... stock, plant and equipment from the property without making reservations as to their rights and without making application for orders to recover possession of the premises." Dr Croft concluded "in light of this conduct, it is submitted that the granting of an urgent interlocutory injunction would be inequitable and unreasonable". He referred to Orr v Ford [1989] HCA 4; (1989) 167 CLR 316; ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474; (1992) 110 ALR 47; Nature's World (Chadstone) Pty Ltd v Perpetual Trustees Limited [2000] VCAT 396 at paragraphs [17] and following.

50. I accept that the doctrines of laches and acquiescence apply to injunctions in this Tribunal as much as they do to court injunctions whether under the general equitable power or under statutory authority. Here the delay was only for a period of weeks. As Dr Croft candidly conceded it could not be shown that this delay had led to any distinct prejudice to the respondents. Cases like Orr v Ford referred to periods of acquiescence extending over years. In my view there has been no delay in acquiescence sufficient in all the circumstances to render it inappropriate to grant the relief sought by the applicants on an interlocutory basis.

51. Dr Croft also complained as to the inadequacy of the undertakings which were offered, namely from the two corporations. He submitted that the principals of the company, Mr Brian McAnallen, Ms Lynette Costello and Mr Blair Freeman and a bank guarantee in the sum of $50,00 should be furnished as securities for the undertaking. In that respect he referred to affidavit material from Mr Schaedler to the effect that he was negotiating with a potential new tenant who would pay rental of $80,000 per annum. Dr Croft referred to well known authorities establishing the importance of the undertaking as to damages. He submitted that the requirement of the undertaking and an undertaking of substance was "both a settled practice and an essential condition to the grant of an interim injunction". I accept that as a statement of the general position, though consultation of the standard texts on the subject will show that in exceptional circumstances the undertaking can be dispensed with. Mr Strang was given the opportunity in the course of argument to seek instructions or offer a personal undertaking from one or more of the individuals behind the applicant company, but he made no such offer. I must proceed therefore on the basis that no such undertaking either by individuals or in the form of a bank guarantee is available. I will have more to say as to this matter under the balance of convenience.

52. Dr Croft said that this case was just about money and therefore damages were an adequate remedy for that reason alone. This was a reason, either jurisdictional or discretionary, why no relief of the sort which the applicants seek should be granted. The first applicant as testified by the terms of its deed of company arrangement has no interest in the premises beyond a desire to complete the sale of its undertaking to the second applicant Coolstore's Hotel Pty Ltd, therefore its interest in the premises is purely monetary.

53. In my view these considerations should not stand in the way of the grant of injunctive relief. First, in a real sense every commercial dispute is ultimately about money. Nevertheless at least for the purposes of the conceived jurisdictional issue as to the availability of injunctive relief, courts have regarded the protection of proprietary interests in real estate as justifying equitable intervention with specific relief. Here the claims made by both applicants are proprietary and the fact that the proprietary claims are made for no purpose other than ultimately to make money does not change this. Moreover, if Coolstore's Hotel was left to a remedy in damages, presumably the damages would have to be recovered against the present respondent and not against its co-applicant which as we know is insolvent. The recovery of such damages would be difficult indeed because the financial outcome of its conduct of a business on the premises would be difficult in the extreme to prove. To put it another way, the second applicant is seeking possession and ownership of the business, not a lawsuit.

54. The injunction sought by the applicants will preserve the status quo. There is every reason to think that a very early trial date can be appointed. Obviously the inability, if this injunction is granted, of RMCO to cut a deal with the proposed new tenant weighs heavily in the balance against the Tribunal's intervention. Nevertheless, the Court of Appeal has observed that in considering the balance of convenience it is proper to have regard to the strength of the applicant or plaintiff's case accepted as a serious issued to be tried. See Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318. Mr Strang relied upon a judgment of Batt J as he then was, sitting in the Practice Court in the matter of Hession and Anor v Rowson unreported 21 September 1995, Butterworths Unreported Series BC950 6609. His Honour was troubled, as I myself am troubled by the frailty of the undertakings which are offered. At page 6 of the Butterworths formatted version of the judgment he said:

"The other matter that has caused me concern is the question of the strength or reliability of the plaintiffs' undertaking as to damages. Whilst I do not wish to embarrass the trial judge, I have to consider for this purpose the strength of the plaintiffs' case on the merits, and I must say that I consider it a strong case; and although the undertaking may be frail, I do not think, having regard to the view that I take as to the strength of the plaintiffs' case, I should in my discretion withhold an injunction on the ground of the frankly conceded frailty of the undertaking. Particularly do I say that because I propose, with concurrence - or, at any rate, without the opposition - of the parties, to fix a trail for the first week in October."

55. The situation which confronted His Honour is in many respects similar to the one which confronts me. I believe that the case made by the applicants based upon the 1998 guidelines is a strong one as His Honour felt the plaintiff; before him had a strong case. Throwing that into the balance I believe the balance of convenience comes down in favour of making the order sought by Mr Strang. Even if I allow for the fact that Dr Croft has reserved the right, if the matter goes to trial, to contend that the 1998 guidelines are void as being ultra vires, the applicants' case remains in my view, relatively strong and the balance is not reversed.

56. Mr Cameron relied upon a number of other matters, including allegations of unconscionable conduct, estoppel and so forth. In the event it is unnecessary for me to say anything with respect to these matters.

57. Dr Croft submitted that his clients should be released from the undertaking given on 12 April and extended to 26 April. He said that the applicants should either obtain interlocutory relief upon the present application or be left to any remedy in damages. The undertakings were given upon the assumption of an early final hearing which has not in the event taken place. The respondents' undertaking was unsupported by a cross undertaking as to damages. In my view it is just that the applicants should be protected only by the injunction which I am now granting. The respondents are released from their undertaking.

58. I have heard no argument as to costs and so I will reserve them.

59. After dictating the above the Registrar received by facsimile transmission a set of "supplementary submissions" from Mr Strang. I granted no leave for later written submissions when I reserved my decision. Mr Hanak, junior counsel for the respondents foreshadowed written submissions from that quarter. Generally the Tribunal should not entertain post hearing submissions where no leave for this filing has been given. Runyef v Mornington Peninsula Shire Council [2000] VSC 311; (2000) 2 VR 69, 91-4 [61] - [78]. I directed the Registrar to advise the parties that neither the actual nor foreshadowed submissions would be considered.