Dee-Tech Pty Limited v Neddam Holdings Pty Limited

CATCHWORDS : EQUITY - General Principles and Maxims of Equity - rectification of lease variation - provision defining outgoings "in the lease commencing 1 February 2006" - lease commenced 1 February 2005 - whether common intention of parties that earlier date applied - whether subsequent oral agreement that later date applied - whether obligation to pay outgoings to be implied and as an essential term - CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - whether change in shareholding of plaintiff lessee without consent of defendant lessor in breach - whether keeping a dog on premises in breach - whether refusal of access to a building inspector in breach - whether failure to take out insurance policies approved by defendant in breach of essential term - LANDLORD AND TENANT - Termination of Tenancy - defendant restrained from re-entry for breach - whether acceptance of rent and outgoings and insistence on taking out insurance policies in accordance with lease a waiver of notice under the Conveyancing Act 1919, s 129 - calculation of rent and outgoings in arrears difficult - whether an account to be taken by an Associate Judge - whether plaintiff should be relieved from forfeiture of lease

Trade Practices Act 1974 (Cth) LEGISLATION CITED : Fair Trading Act 1987 Conveyancing Act 1919

Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; (2007) 69 NSWLR 603 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Codelfa Construction Pty Ltd v State Railway Authority of NSW (1982) 149 CLR 337 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 Honner v Ashton (1979) 1 BPR 9478 Hewitt v Debus [2004] NSWCA 54; (2009) 59 NSWLR 617 CASES CITED : Pioneer Quarries (Sydney) Pty Ltd v Permanent Trustee Co of NSW Ltd (1970) 2 BPR 9562 Shiloh Spinners Ltd v Harding [1973] AC 691 Hayes v Gunbola Pty Ltd (1986) 4 BPR 9247 Sparta Nominees Pty Ltd v Orchard Holdings Pty Ltd [2002] WASC 54 Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315 Stern v McArthur [1988] HCA 51; (1987-1988) 165 CLR 489 Legione v Hateley [1983] HCA 11; (1982-1983) 152 CLR 406 Gregory v Wilson (1852) 9 Hare 683; 68 ER 687

Dee-Tech Pty Limited (First Plaintiff/First Cross-Defendant) Bright Star Laundry Pty Limited (Second Plaintiff/Second Cross-Defendant) Neddam Holdings Pty Limited (Defendant/Cross-Claimant) PARTIES : Rhonda Daily Slattery (Third Cross-Defendant) Bennett Joseph Slattery (Fourth Cross-Defendant) Leon Murray Slattery (Fifth Cross-Defendant) Noela Joyce Streltschenko (Sixth Cross-Defendant) Eugene Streltschenko (Seventh Cross-Defendant)

COUNSEL : M Tyson (Plaintiffs/First to fourth Cross-Defendants) M Moir (Defendant/Cross-Claimant)

SOLICITORS : W Lawyers (Plaintiffs/First to fourth Cross-Defendants) Cameron & Myers Solicitors (Defendant/Cross-Claimant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2447/07 DEE-TECH PTY LIMITED & ANOR v NEDDAM HOLDINGS PTY LIMITED (NO 2) JUDGMENT Synopsis 1 On 23 November 1999, Dee-Tech Pty Limited, as lessee, entered into a lease from Ronald Charles Colmer and Aida Marianne Colmer for a period of two years commencing on 1 February 2000 with an option to renew for a further period of three years. 2 By a variation of lease executed on 28 May 2002, the period of two years was replaced by a period of five years followed by three options to renew, each for three years. 3 On 15 September 2002, Neddam Holdings Pty Limited signed a contract for sale of the land as purchaser that was completed on 21 October 2002. 4 On 5 October 2004, Dee-Tech purported to exercise the option to renew the lease for a period of three years commencing on 1 February 2005. Neddam did not accept the exercise and Dee-Tech commenced other proceedings in the Equity Division of this court against Neddam (1878 of 2005). On 31 May 2005 short minutes of consent orders were filed under which it was declared that Dee-Tech had validly exercised the option to renew and Neddam was ordered to execute all documents and do all things necessary to carry the covenant for renewal into effect. On 9 June 2005 consent orders were filed under which Neddam was ordered to pay Dee-Tech's costs in the agreed amount of $4,000.00. They have not been paid. 5 The current proceedings arise from Neddam's refusal to accept a further exercise of an option to extend the lease for a further period of three years commencing on 1 February 2008. Dee-Tech also claimed relief from forfeiture with respect to alleged breaches of the lease. 6 The second plaintiff, Bright Star Laundry Pty Limited, is the subtenant from Dee-Tech of portion of the demised premises. 7 Neddam brought a cross-claim against Dee-Tech; Bright Star; Rhonda Daily Slattery and her husband Bennett Joseph Slattery, the current shareholders of Dee-Tech; Leon Murray Slattery, the step-son of Mrs Slattery and a former shareholder of Dee Tech; and Noela Joyce Streltschenko and her husband Eugene Streltschenko, the parents of Mrs Slattery and former shareholders of Dee-Tech. By its amended cross-claim Neddam seeks possession of the demised premises, mesne profits, rectification of the variation of lease, and an account of what is due to it under the lease and damages for breach of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987. Rectification 8 It is convenient to deal with this issue first as it will establish whether Dee-Tech was obliged to pay outgoings from a date earlier than that accepted by it. 9 The variation of lease in replacing the two year term with a five year term provided for an initial term of five years ending on 31 January 2005. The option to renew for three further periods of three years gave rise to possible further terms from 1 February 2005 to 31 January 2008, from 1 February 2008 to 31 January 2011 and from 1 February 2011 to 31 January 2014. 10 Item 7 of the lease particulars was as follows: Item 7 Outgoings Percentage: Not applicable

11 There was no specific provision for the payment of the outgoings in the lease. 12 The portion of the variation of lease for which rectification is sought is as follows: "In the lease commencing 1 February 2006 Item 7 delete the words "Not Applicable" and replace with the words "the Lessee shall pay 44.6% of all reasonable outgoings in association with the premises as per Nationwide Realty Ashwell & Carroll Outgoings to be paid by the Lessee Year Ending 30 June 2000. "Outgoings means - the total aggregate amount of the following costs paid or payable by the Lessor in respect of the Land, the improvements to the Land or in connection with the Premises for a year: land tax (on the basis the Land is the only land owned by the Lessor and is not subject to a special trust (within the meaning of the Land Tax Management Act 1956) and the Lessor is not a company classified under section 29 of the Act as a non-concessional company); water, drainage and sewage rates and charges; Local council rates and charges (but not water usage charges - for these charges see 18.3);"

13 Neddam claims that the reference to 1 February 2006 is mistaken and the common intention of the parties was 1 February 2005. Dee-Tech claims that there is no mistake as there was an oral agreement between Mr Colmer and Mrs Slattery in early 2002. Mrs Slattery said she told Mr Colmer that she had spent $27,000 upgrading the electrical supply to the building and she wanted to be compensated. According to Mrs Slattery, Mr Colmer said that was fair and he was happy that outgoings should start on 1 February 2006 and that also he would give $10,000 back when the property was sold. 14 Dee-Tech submitted that the above portion of the variation of lease should be construed as if the words "In the lease" were not present. It would then read: "commencing 1 February 2006 Item 7 delete the words "Not Applicable" and replace with the words "the Lessee shall pay 44.6% of all reasonable outgoings …" 15 That is a tortuous construction of the words used and is unlikely to reflect the common intention of the parties. The variation of lease states that the lease is varied as follows. It is highly unlikely that they meant that a further variation should take place on 1 February 2006. 16 Save for the date, the words used have a natural meaning. Provision is made for a series of leases if the option is exercised. At the time the variation of lease took effect the relevant new lease was that commencing on 1 February 2005 and, judged on its face, there appears to have been a common mistake in attributing 1 February 2006 to the commencement of that lease. If the date 1 February 2005 is substituted, the meaning of the variation of lease is clear. 17 Since proof of the common intention of the parties is essential to the grant of rectification (Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; (2007) 69 NSWLR 603 at 655 [259]), evidence of pre-contractual negotiations is admissible. 18 On 14 November 2000 Nationwide, the estate agents mentioned in the variation of lease, wrote to Dee-Tech setting out what was acceptable to Mr and Mrs Colmer. It contained the following: "1 Add 2 x 3 year option periods to your existing lease, making the total option periods to 9 years. 2 The outgoings to commence on the 1 st day of the second 3 year option period. Your share of the outgoings being 44.66% of the Gosford City Council Rates, Land Tax & Insurance."

The letter went on to deal with a 100% charge to Dee-Tech for water rates. The variation of lease provided that Dee-Tech should pay 100% of all water usage charges over the amount being used prior to commencement. 19 The reference to the second three-year option period in the letter was clearly a reference to the period commencing 1 February 2005 since the nine years to which reference was made must have included the three-year extension of the original lease. It is only by inclusion of that term that one achieves an aggregate of nine years. Thus the second three-year option period addressed in the letter was the period from 1 February 2005 to 31 January 2008. 20 Dee-Tech raised an alternative argument that the first day of the second three-year option period was 1 February 2008 because the extension of the lease did not constitute an option period so that the first day of the first option period was 1 February 2005 and first day of the second option period was 1 February 2008. 21 That technical analysis of the letter does not accord with the obvious intention of Mr and Mrs Colmer for it would mean that the total option periods totalled six years whereas the letter stated that they totalled nine years. And they did total nine years. When the letter was written there was a lease for two years with an option to extend for a further three years. That was the first option period. Mr and Mrs Colmers' intention is clear enough. They were offering two further option periods bringing the total option periods to nine years. The second of those periods clearly commenced on 1 February 2005. 22 It is clear, then, that at an early stage in the negotiations Mr and Mrs Colmer were seeking payment of a percentage of outgoings from 1 February 2005. 23 It was submitted that the outgoings identified in the letter were far narrower than the outgoings ultimately recorded in the variation of lease and the letter should not be taken into account. But the letter is powerful evidence of intention of Mr and Mrs Colmer to require Dee-Tech to pay a percentage of some outgoings. That intention was still present when the variation of lease was executed albeit that the specification of the outgoings and the percentage changed. 24 That this was the intention of Mr and Mrs Colmer also appears from a letter of 4 September 2000 from Mark Francis Cotter, the solicitor of Mr and Mrs Colmer, to Dee-Tech which stated that Mr Cotter understood from Nationwide that Dee-Tech had requested that the lease be varied as follows: "1 Add a further 3 year option period to the current lease, ie two three year option periods making a total of six years in option periods 2 The Lease is now to include 100% of water charges from the date the Variation of Lease is entered, and outgoings @ 44.66% of the whole property for Council Rates, Land Tax and Insurance and 100% water charges from the date of a new Lease pursuant to exercise of the option 3 The permitted use of the premises will be extended to include "Laundry/laundromat and associated usages" 25 Notwithstanding that the option periods in the variation of lease totalled nine years and the precise terms of the obligation on the part of Dee-Tech to pay water rates and outgoings changed, it was clearly the intention of Mr and Mrs Colmer that these charges be met as from the first day of a lease consequent upon the exercise of the option to extend the term. 26 There was no demur to this correspondence by Dee-Tech. From that it may be inferred that it was not only Mr and Mrs Colmer's intention that Dee-Tech should pay a percentage of the outgoings from 1 February 2005 but also that it was the intention of Dee-Tech. 27 Mr Cotter wrote a letter to Dee-Tech wrongly dated 12 July 2001. On the copy of the letter on his file he corrected the date to 25 August 2002. After he checked his file he knew the letter could not have been delivered to Dee-Tech before the date that the variation of lease was registered, 2 August 2002, because the letter contained reference to the registration number. 28 The letter accompanied the return of the original lease together with the original of the variation of the lease to Dee-Tech. Mr Cotter asked John Edward James Allen of Nationwide to deliver the letter personally to Dee-Tech at the demised premises. Mr Allen said he hand delivered the documents at the premises. He could not recall to whom he handed the envelope but he said he did hand it to Mr or Mrs Slattery. 29 In re-examination, Mr Cotter said that Mr Allen telephoned him after he had delivered the letter and told him that he had handed it to Mrs Streltschenko. The letter was in the following terms: "We refer to previous correspondence and now return original Lease 6399422Q, together with original Variation of Lease which has been registered 8858556L. Kindly acknowledge receipt of the enclosed duplicate letter. We note that on the second last line of page 4 of the Variation the document refers to a Lease commencing on 1 February 2006. That reference should in fact be to a Lease commencing 1 February 2005. As you know, the clause in the Variation (clause 9) dealt with what the terms and conditions of the new Lease were to be. There are no outgoings payable for the first five years, that is, for the Lease beginning 1 February 2000 and ending 31 January 2005. There are outgoings payable thereafter and the date from which you become liable for outgoings is 1 February 2005. Please confirm your acceptance of this letter and your obligation to pay outgoings from 1 February 2005 by signing the duplicate of this letter and returning it to us." 30 Mr Cotter failed to obtain the written acknowledgements. It was submitted that his answers in cross-examination that he relied on delivery by Mr Allen should not be accepted and the failure to obtain the acknowledgments was unsatisfactory. Be that as it may, I do not doubt that Mr Allen delivered the documents to Mrs Streltschenko. In August 2002 she and Mr Streltschenko and Leon Slattery were the directors of Dee-Tech. But I have no doubt that documents so important would have been brought to the attention of Mrs Slattery who was the driving force behind Dee-Tech. 31 There was no demur to the letter and I conclude that that was so because it was the continuing intention of Dee-Tech that it should contribute to outgoings from 1 February 2005. Had Mr Colmer and Mr Slattery come to the agreement she says they did, there would have been an immediate response taking issue with the suggestion that 1 February 2006 in the variation of lease was a mistake. 32 In making this finding I reject Mrs Slattery's evidence of the oral agreement she said she entered with Mr Colmer early in 2002. Mr Colmer was not called to confirm the agreement and there are aspects of Mrs Slattery's evidence that do not do her credit. 33 On 16 December 2002, $10,910.50 was deposited to Dee-Tech's bank account. It was submitted that this constituted corroboration of Mrs Slattery's evidence of her agreement with Mr Colmer. But there were other deposits in the thousands of dollars and the deposit in question was from five cheques the amounts of which and the drawers of which were not identified. 34 On 22 September 2005 the conveyancer acting for Neddam wrote to Mr Cotter drawing attention to the date 1 February 2006 in the variation of lease and asking whether the literal version was correct or whether there was a mistake and the reference was to the lease that commenced on 1 February 2005. 35 It was submitted that there being such a gap before this letter was written during which contributions to outgoings were not made by Dee-Tech, it was suggestive of a common view that the 1 February 2006 date was correct. But this delay only showed that the assignee had not adverted to the issue earlier. The issue was not the position of the assignee. It was the common intention of Dee-Tech and Mr and Mrs Colmer in May 2002. 36 The letter drew an immediate response from the solicitors for Dee-Tech on 23 September 2005 alleging that it was agreed between Dee-Tech and Mr and Mrs Colmer that outgoings would not commence until 1 February 2006 which they thought, mistakenly, was the first day of the second three-year option period: "It was always agreed between our client and the original lessors, Mr. and Mrs. Colmer, that outgoings would not commence until 1 February 2006. In this regard we enclose* copy of a letter from Ashwell & Carroll dated 14 November 2000. As you can see, at that time it was agreed that there would be 2 x 3 year option periods after termination of the lease on 28 May 2002 and outgoings would not commence until the first day of the second three year option period which would have been 1 February 2006." 37 It was submitted that this response supported Mrs Slattery's evidence. I do not accept that submission. The letter says nothing about an agreement early in 2002. On the contrary, it asserts a longstanding agreement and one that required the payment of portion of the outgoings from the beginning of the second three-year option period. It supports the conclusion that the common intention of Dee-Tech and Mr and Mrs Colmer was that contributions to outgoings should commence on 1 February 2005, the first day of the second three-year option period. Credit 38 Not only do I reject Mrs Slattery's evidence for the reasons set forth above, I do so in light of evidence damaging her credit. 39 In the extensive correspondence between the solicitors for the parties there was no allegation of an oral agreement with Mr Colmer early in 2002. That allegation emerged for the first time in an affidavit sworn on 8 October 2009, shortly before the commencement of the trial 40 Mr and Mrs Slattery were involved in a protracted dispute with a former landlord, Lend Lease Corporation Limited. It resulted in their bankruptcy from 1999 to 2004. 41 From 1998, Mrs Streltschenko was the sole shareholder of Dee-Tech. The shares were subsequently transferred to Leon Slattery who held them until 15 May 2004 when they were transferred to Mr and Mrs Slattery, presumably after their discharge from bankruptcy. 42 It was opportunistic of Mrs Slattery as the driving force behind Dee-Tech to ensure that the shares remained out of the property divisible amongst her creditors. 43 I find it improbable that Mr and Mrs Slattery were not aware that if they revealed they were bankrupt they were unlikely to have been offered a lease by Mr and Mrs Colmer. If the shares in Dee-Tech were held by Mrs Streltschenko, Mr and Mrs Colmer and their agents were unlikely to have made any connection between her and Mr and Mrs Slattery. I find it improbable that Mr and Mrs Slattery did not engineer the shareholding in Dee-Tech for these reasons. 44 On 10 July 2008, a notice of breach of covenant under the Conveyancing Act 1919, s 129 was served on Dee-Tech alleging that a dog was being kept on the premises and should be removed. 45 Mrs Slattery swore that the dog had died and it had not been an issue for some time. She noted that the dog had accompanied she and her husband to work every day since 1999 and the matter only became an issue in 2007. 46 But a complaint about the dog was made to Gosford City Council on 29 October 2003 and a representative of the Council inspected the premises on 7 November 2003 and told Mr Slattery that dogs were not permitted on food premises. The Council records contained the statement that Mr Slattery had agreed not to have the dog on the premises in the future. 47 That undertaking was not honoured as the dog continued to be brought on the premises from 2003 to 2007. 48 On 11 August 2006, Neddam's agent LJ Hooker Commercial wrote to Mrs Slattery advising her that they had received a complaint regarding her dog being brought onto the premises. On 4 October 2007 Neddam's solicitors wrote to the solicitors for Dee-Tech referring to a continuing breach of the lease by bringing the dog onto the premises. The solicitors for Dee-Tech wrote to the solicitors for Neddam on 26 October 2007 asking them to specify the clause of the lease allegedly prohibiting Dee-Tech from bringing a dog onto the premises. On 19 November 2007 Neddam's solicitors again referred to the presence of the dog and identified the particular provision of the lease that prohibited dogs on the premises. The solicitors for Dee-Tech responded on 21 December 2007 alleging the provision did not apply. 49 Mrs Slattery agreed in cross-examination that she had asked Mr Colmer if she could place a shipping container in the carpark for a maximum period of six months. 50 In April 2003 a complaint was lodged with Gosford City Council. It was claimed that the container had been there for at least two years and was a traffic hazard. It was said that there had been many near misses because passing traffic could not see properly. 51 Mrs Slattery accepted in cross-examination that the Council had prepared a brief of documents for prosecution of Dee-Tech. She agreed that it was only when Dee-Tech was threatened with prosecution that she had the shipping container removed in about October 2004. 52 Mrs Slattery said that notwithstanding that, initially, the container was to be placed for no longer than six months, she was entitled to have it there indefinitely once the variation of lease was executed. It inserted a new cl 18.2 in the lease in the following terms: "The lessee may place a 20-foot container in the car parking area, the container should not occupy more than one (1) car space." 53 Mrs Slattery also agreed in cross-examination that there had been complaints of excessive noise and fumes in relation to the laundry going back as far as 2003. The Council spoke with her at various times including 20 April 2007 when another tenant, in complaining to the Council, said that he had been promised rectification on several occasions but nothing had happened. 54 In cross-examination, Mrs Slattery recalled a discussion with another tenant on one occasion and she said she took measures with respect to the header tank for the boiler. She said that in the last conversation she had with the tenant he said there was no noise issue. She denied that she had promised rectification on a number of occasions and nothing had eventuated. 55 I do not accept that there was but one complaint of noise and vibration which was then rectified. The documentation supports the view that complaints were made on a number of occasions and promises of rectification were made on more than one occasion and the problem was not rectified. 56 The evidence establishes that Mrs Slattery caused Dee-Tech intentionally to take advantage of situations to its benefit notwithstanding its understanding of detriment being caused to others. This opportunist approach permeated Dee-Tech's conduct. It continued to act to the detriment of others until forced to capitulate. 57 Mrs Slattery's evidence as a whole persuades me that I should reject her last minute claim of an oral agreement with Mr Colmer with respect to the date upon which Dee-Tech was to commence paying a portion of the outgoings. 58 That takes me back to the correspondence evidencing Mr and Mrs Colmer's intention that Dee-Tech should commence making these payments on 1 February 2005 and the lack of argument against this proposition by Dee-Tech from which I have inferred that the intention was a common one. 59 Neddam has made out its claim to rectification of the variation of lease and I will substitute for 1 February 2006 in cl 9 of the variation of lease the date 1 February 2005. Obligation to pay outgoings 60 There was no provision in the lease for the lessee to pay outgoings. As indicated above the lease contained a reference to "Outgoings Percentage" in Item 7 of the lease particulars but that phrase was neither defined nor used elsewhere in the document. 61 There was an obligation to pay rent but that was defined in Item 4 of the lease particulars as $35,000 per annum. 62 Clause 4.10 provided that the lessee should pay other moneys such as reasonable legal costs with respect to certain events, but the clause did not contain an obligation to pay outgoings. 63 The variation of lease did not mention outgoings beyond that portion of cl 9 set out above. 64 It was submitted that Dee-Tech had no obligation to pay any percentage of any outgoings. On the other hand, it was submitted that a provision for payment should be implied. 65 In BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283 the Privy Council held that: "… for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) It must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract."

See, also, Codelfa Construction Pty Ltd v State Railway Authority of NSW (1982) 149 CLR 337 and Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41. 66 Each of the above conditions applies in the instant circumstances. The implication of a term that the lessee should pay the outgoings percentage of all reasonable outgoings specified in Item 7 of the lease particulars and that it should be defined as an essential term in the lease is reasonable and equitable. In agreeing to the variation of Item 7 the parties intended that Dee-Tech would pay the prescribed percentage of reasonable outgoings and like the payment of rent, it should be an essential term. The implication of the implied term is necessary to give business efficacy to the lease as varied. The lease is ineffective without the implication. The implication of the term "goes without saying". It is capable of clear expression and it does not contradict any express term of the lease. 1 February 2008 67 The variation of lease replaced Item 14 as follows: "Item 14 Number of times this and successive leases can be renewed: Three (3) Total number of Leases (including the present Lease): Four (4) New Lease Particulars: Term: Three (3) years Commencing Day: 1 February 2005 Terminating Day: 31 January 2008 Further Lease Particulars: Term: Three (3) years Commencing Day: 1 February 2008 Terminating Day: 31 January 2011 Further Lease Particulars: Term: Three (3) years Commencing Day: 1 February 2011 Terminating Day: 31 January 2014 Rent Adjustment Days: Manner of Rent Adjustment The first anniversary of the Commencing Day: CPI The second anniversary of the Commencing Day: CPI"

68 Item 6 of the lease was as follows: "Item 6 Rent Adjustment Days Manner of rent adjustment The first anniversary of the Commencing Day: $35,000 per annum - fixed amount"

69 The variation of lease added following to that Item: The second anniversary of the Commencing Day: $40,000 per annum The third anniversary of the Commencing Day: CPI The fourth anniversary of the Commencing Day: CPI"

70 The variation of lease deleted cl 16.3 to cl 16.10 and replaced them with a provision in the following terms: "16.3 The new lease shall have the same terms as this Lease except that: 16.3.1 as the Lessee may renew this and successive leases the number of times specified in Item 14, so that the Lessee may have the total number of leases (including this lease) specified in Item 14, each successive lease except the last will provide an option for a further term. The numbers in Item 14 will be reduced by one in each successive lease; 16.3.2 any variation agreed shall be included; 16.3.3 the day to be inserted in Item 2 of the new lease shall be the day immediately following the day specified in Item 3 of this Lease; 16.3.4 the day to be inserted in Item 3 of the new lease shall be the last day of the term of the new lease; 16.3.5 the days when and the manner in which rent shall be adjusted under the new lease shall be those specified in Item 14; and 16.3.6 the rent payable for the first year of the term of the new lease shall be the greater of the rent payable during the last year of the term multiplied by the current CPI divided by the previous CPI OR the rent payable during the last year of the term of this Lease." 71 Dee-Tech made a submission in the alternative to its submission that there was an agreement that its payment of outgoings should commence on 1 February 2006. It claimed that the effect of cl 16.3.3 was that the date specified in the provision amending Item 7 should have been 1 February 2008. It was submitted that the variation of Item 7 only applied where there was a renewal of the lease consequent upon the giving of notice exercising the option. It was submitted that the first time Dee-Tech would seek to obtain a new lease would be in the period leading up to 1 February 2008. 72 I reject that submission. Dee-Tech exercised the option to renew and obtained a new lease commencing on 1 February 2005 consequent upon the order of the court. Equity regards as done that which ought to have been done. Clause 16.3.3 required the date in Item 2 of the new lease to be the day immediately following the date in Item 3 of the original lease. Item 3 of the original as varied stated the terminating day as 31 January 2005. Clause 16.3.3 required the commencing date of the new lease to be 1 February 2005. 73 Dee-Tech submitted that the provision should be construed with respect to the first occasion after 31 May 2005 that Dee-Tech would seek to exercise the option by a notice. 31 May 2005 was the date upon which orders for specific performance of the term for renewal were made. And the court declared that there had been a valid exercise of the option in October 2004. It is with respect to that exercise that the appropriate date in the variation of lease with respect to Item 7 is to be determined. Transfer of shares 74 Clause 9.9 of the lease was in the following terms: "9.9 If: 9.9.1 the Lessee is a company which is neither listed nor wholly owned by a company which is listed on the Australia Stock Exchange; and 9.9.2 there is a proposed change in the shareholding of the Lessee which would result in all of the persons who are shareholders at the Commencing Day beneficially holding less than 51% of the shares in the Lessee then the Lessee may not make that change unless the Lessee obtains the Lessor's consent and complies with this Part as if the new shareholder or shareholders were the proposed transferee." 75 On 1 February 2000, the commencing day of the lease, Mrs Streltschenko held the two shares on issue in Dee-Tech. They were transferred to Leon Slattery without seeking the consent of Mr and Mrs Colmer some time before 17 May 2001. 76 The transfers by Leon Slattery of one share to each of Mr and Mrs Slattery on 15 May 2004 were without the consent of Neddam. 77 On 21 July 2004 there was an allotment of one share to each of Mr and Mrs Streltschenko, again without the consent of Neddam. And on 1 November 2005 Mr and Mrs Streltschenko transferred their shares to Mr and Mrs Slattery without the consent of Neddam. 78 Neddam submitted that the transfers before 17 May 2001 and on 15 May 2004, the allotments on 21 July 2004 and the transfers on 1 November 2005 infringed cl 9.9. I do not agree. 79 The effect of the order for specific performance was that consequent upon the valid exercise of the option the lease was renewed for a further period of three years. That meant that the commencing day for the purposes of cl 9.9 was 1 February 2005. On that day Mr and Mrs Slattery and Mr and Mrs Streltschenko held one share each in Dee-Tech. The transfer on 1 November 2005 increased the 50% holding by Mr and Mrs Slattery to 100%. There was, in my view, no infringement of cl 9.9.2. Conveyancing Act notices 80 Neddam gave a number of notices under the Conveyancing Act, s 129. The first was on 22 September 2006 and alleged arrears of rent and outgoings. In light of my finding that Dee-Tech was obliged to pay its proportion of outgoings from 1 February 2005, the notice was good. 81 On 21 February 2007, a notice was sent alleging the share transfers and allotments of 15 May 2004, 21 July 2004 and 1 November 2005 infringed cl 9.9 of the lease. For the reasons above that notice was ineffective. 82 A further notice relating to the changes in shareholding was sent on 10 July 2008. It was ineffective. 83 On 10 July 2008 a notice was sent with respect to the presence of the dog. 84 Clause 6.1.7, so far as is relevant for present purposes was as follows: "6.1 The Lessee must, at the Lessee's expense where these obligations require the expenditure of money: … 6.1.7 keep the Premises free from rodents, insects, pests, birds and animals…" 85 The letter of 21 December 2007 alleging that the provision did not apply stated: "We submit that Part 6.1.7 of the Lease deals with animals in the context of uninvited pests and not a dog which is kept on the premises for security purposes." 86 The provision is not so limited. It is of general application and requires animals to be kept off the premises. 87 Dee-Tech submitted that there was no breach of the lease because the requirement to keep the premises free from animals only arose if it involved a requirement for the expenditure of money. 88 I reject that submission. The words "at the Lessee's expense where these obligations require the expenditure of money" are in parenthesis. The provision requires the lessee to do the specified things and, if that requires the expenditure of money, it is at the lessee's expense. Thus, the lessee must keep the premises free from animals and if that requires the expenditure of money the lessee must pay. 89 The notice was good but the breach was remedied when the dog died. 90 On 14 July 2008 a notice was sent alleging a breach of cl 7.2.1 to cl 7.2.4 in failing to allow entry to the premises by a building inspector. The provisions in question were as follows: "7.2 After giving the Lessee reasonable notice, the Lessor is entitled to enter the Premises: 7.2.1 to determine if the Lessee is performing and observing the terms of this Lease; 7.2.2 to inspect the state of repair and condition of the Premises; 7.2.3 to inspect the Lessor's property; 7.2.4 for the purposes of complying with the terms of any present or future legislation affecting the Premises or of a notice served by an Authority upon the Lessor, Lessee, or a sublessee, licensee, or other occupier provided that in complying with the terms of such legislation or notice the Lessor shall cause as little inconvenience and disturbance to the occupation and use of the Premises by the Lessee, or other occupier having possession of the Premises with the consent of the Lessor, as the circumstances and nature of the works required to comply with the legislation or notice reasonably demand." 91 On 7 August 2008, Naomi Anne Neilson from LJ Hooker went to the premises with Ross Hemsworth, a development and building and environmental consultant. Ms Neilson was given access to the premises. Mr Hemsworth was not. 92 On 27 May 2008, the solicitors for Dee-Tech wrote to the solicitors for Neddam saying, as indicated in earlier correspondence, Dee-Tech had no issue with reasonable and lawful entry consistent with the lease and that they would arrange a convenient time for a representative of LJ Hooker to attend the premises and carry out an inspection. The letter went on to say: "In relation to the building inspector, however, your client places a reliance on a broad breadth of provisions, with no specific details as to the identity, office and actual intended purpose of the visit. Your client has provided no indication of the building permits or approvals that you are seeking to check of the occupier or staff or to the extent to which your client believes that these are in some way deficient. Please provide these and our clients may be able to further facilitate the process and provide the necessary approval." 93 The response was that Neddam regarded the correspondence "to be merely a time wasting exercise." 94 Maybe it was. But, nevertheless, Mr Hemsworth's inspection was not needed to determine if Dee-Tech was performing and observing the terms of the lease. His inspection was not needed to inspect the state of repair and condition of the premises, nor to inspect the lessor's property and no indication had been given of the need for his inspection with respect to present or future legislation affecting the premises or a notice served by an authority. 95 Neddam has not established that in this regard Dee-Tech was in breach of the lease. The notice was ineffective. 96 On 1 February 2007, a notice was given alleging a breach of Pt 5 of the lease, it being alleged that Dee-Tech had failed to take out, keep current and provide evidence of policies of insurance. 97 LJ Hooker wrote to Dee-Tech on 19 January 2006 saying they did not have a current copy of an insurance policy and asked for one within seven days. There was no response. 98 On 22 May 2006, LJ Hooker wrote that they had spoken to Mrs Slattery on various occasions regarding up to date copies of insurance and compliance certificates and had not received them. They were requested within a further seven days. 99 On 29 May 2006, LJ Hooker wrote again stating they had not received copies of insurance or compliances. 100 A certificate of currency of a business insurance policy relating to fire was provided on or about 6 June 2006. 101 On 27 June 2006, LJ Hooker wrote to Dee-Tech saying that with respect to cl 5.4 - cl 5.8 of the lease they had been requesting copies of insurance policies since 28 November 2005 and were yet to receive them, and asserting that due to the nature of the business conducted by Dee-Tech it was in the landlord's best interest and also part of the lease that they be supplied. 102 Clause 5.1 of the lease was in the following terms: "5.1 The lessee must take out and keep current in the names of the Lessee and the Lessor at the Lessee's cost insurance policies for: 5.1.1 public liability insurance for at least the amount in Item 9 (or as varied by notice from the Lessor to the Lessee) for each accident or event; and 5.1.2 plate glass insurance against damage or destruction from any cause if there is plate glass in the Premises; 5.1.3 damage or destruction from any cause to the Lessee's Property to its full insurable value; 5.1.4 other insurance which is required by law or which, in the Lessor's reasonable opinion, a prudent Lessee would take out." 103 Clause 5.4 provided that on each anniversary of the commencing day the lessee was obliged to give the lessor a copy of each insurance policy required by cl 5.1 and a certificate of currency for each such policy. 104 On 30 June 2006 the solicitors for Dee-Tech wrote to LJ Hooker stating that they had already been provided with certificates of currency for insurance policies under the lease. And they would forthwith provide full copies of the relevant policy documents. Contrary to these assertions, relevant insurance policies were not provided. And the certificate provided on or about 6 June 2006 indicated that the policy was not in the names of Dee-Tech and Neddam. Nor was Neddam named as an interested party. 105 Clause 5.2 of the lease was in the following terms: " 5.2 All insurance policies under clause 5.1 must: 5.2.1 be on terms approved by the Lessor (which approval shall not be unreasonably withheld); and 5.2.2 be taken out with an insurance company approved by the Lessor (which approval shall not be unreasonably withheld); and 5.2.3 be endorsed to note the interest of any person designated by the Lessor as mortgagee or otherwise; and 5.2.4 contain a term that the insurer must not cancel, change or alter any of the terms of the insurance policy without having given the Lessor ten days prior written notice; and 5.2.5 contain a term providing that each insured person will be treated as if each has a separate policy, and that the acts of one will not affect the rights of another, and a term providing that the insurer gives up any rights the insurer may have, because the insurer has paid a claim, to stand in the place of an insured person to take action against another insured person." 106 The certificate provided on or about 6 June 2006 gave no indication of compliance with these requirements. 107 There was no response by Dee-Tech to the notice of 1 February 2007. The notice was effective. Dee-Tech was in breach of Pt 5 of the lease. 108 The lease contained a termination provision. Clause 11.5 was as follows: "11.5 The Lessor is entitled to terminate this Lease by giving the Lessee notice or by re-entry, with force, if necessary, if: 11.5.1 the Lessee has repudiated this Lease, or is in breach of an essential term of this Lease; or 11.5.2 Rent or any other money due to the Lessor under this Lease is not paid within fourteen (14) days of the due day; or 11.5.3 the Lessee has failed to comply with a notice given by the Lessor to the Lessee under Section 129 of the Conveyancing Act 1919 as provided in that section." 109 Clause 11.6 of the lease defined essential terms of the lease to include Pt 5. The stipulation by the parties of what are the essential terms of the lease should be respected (Honner v Ashton (1979) 1 BPR 9478 at 9483; Hewitt v Debus [2004] NSWCA 54; (2004) 59 NSWLR 617 at 636 [93]). 110 Thus, Neddam, irrespective of any common law right, was entitled to exercise its contractual right to terminate the lease by re-entry or notice for breach of an essential term upon compliance with the Conveyancing Act, s 129, or for Dee-Tech's failure to comply with the notice. 111 On 30 April 2007, however, Neddam was restrained from taking, or attempting to take, possession of the premises; or otherwise re-entering the premises; or terminating either Neddam's lease or Bright Star's sub-lease or any part thereof; or in any way inferring with the rights to use and enjoyment of the premises. Neddam did not waive its right to act on Dee-Tech's breach of contract. 112 Bruce Graham Madden with his brothers and his father were the directors of Neddam. He remained concerned about the question of insurance and instructed Neddam's solicitors to pursue the matter with Dee-Tech during 2007 and 2008. They did so. They wrote on 4 October 2007 asking for compliance certificates forwarded to LJ Hooker to be forwarded to them. On 19 October 2007 they informed the solicitors for Dee-Tech that LJ Hooker had not received a compliance certificate and copy of the insurance policy. On 26 October 2007 Dee-Tech's solicitors forwarded a certificate of currency for the business insurance in the name of Dee-Tech alone. 113 On 19 November 2007, Neddam's solicitors wrote saying a certificate of currency was not in compliance with Pt 5 of the lease. Dee-Tech's solicitors responded on 21 December 2007 asking in what respects the certificate did not comply with Pt 5 of the lease and enclosing a renewal notice in relation to the business insurance policy then in the name of Dee-Tech and Bright Star and a renewal notice for a machinery breakdown policy also in the name of Dee-Tech and Bright Star. 114 A year elapsed. On 22 December 2008 the solicitors for Neddam wrote specifying the breaches of Pt 5. The policies were not in the names of Dee-Tech and Neddam; Dee-Tech had failed to seek Neddam's approval of any policy; Dee-Tech had failed to take out any policy with an insurance company approved by Neddam; Dee-Tech had failed to endorse any policy to note the interest of any person designated by Neddam as mortgagee; and Dee-Tech had failed to ensure that any policy contained the provisions specified in cl 5.2.4 and cl 5.2.5 of the lease. That drew a response from the solicitors for Dee-Tech on 6 January 2009 enclosing a certificate of currency endorsed to note the interest of Neddam. 115 The solicitors for Neddam wrote again on 19 January 2009 repeating their assertion that the policies did not comply with Pt 5 of the lease, and adding further alleged infringements. The certificate of currency for the public liability insurance policy did not specify whether the amount insured was for each accident or event as required by cl 5.1.1 or whether it was a cumulative amount. In terms of cl 5.1.3. the certificate did not contain any details about the valuation to be covered and contained no details of what else was covered for the purpose of cl 5.1.4. 116 On 6 February 2009 the solicitors for Neddam wrote saying they had received no response to their letter of 19 January 2009. On 13 February 2009 the solicitors for Dee-Tech forwarded a coverage summary of the business insurance still in the name of Dee-Tech and Bright Star with no attempt having being made to remedy the matters raised by the solicitors for Neddam. 117 These attempts following the giving of notice under the Conveyancing Act did not constitute a waiver of Neddam's rights. They were its attempt to have remedied Dee-Tech's breach of important provisions of the lease while it was prevented from enforcing its rights of termination. Waiver 118 Dee-Tech points to the lack of an unequivocal act on the part of Neddam, inconsistent with the continued subsistence of the lease, as an act of terminating it. Neddam continues to receive rent and a contribution towards outgoings. Its correspondence continued to assert its entitlement to insurance in conformity with Pt 5 of the lease. Dee-Tech submitted that by calling for compliance with the lease with full knowledge of previous breaches, Neddam is to be taken to have waived those breaches. 119 But this is not the ordinary case of a party free to take an unequivocal step inconsistent with the continuation of a contract. Neddam has been prevented from terminating the lease. If the injunction is lifted, and subject to the question of relief from forfeiture, Neddam will be in a position to terminate the lease by re-entry. Arrears of rent and outgoings 120 There is a constant flow of correspondence alleging that Neddam was in arrears of rent and its contribution to outgoings. For example, on 2 April 2007, LJ Hooker gave notice of intention to lock out for arrears of $17,846.42. 121 Dee-Tech is in arrears of outgoing contributions from 1 February 2005 to 31 January 2006. It is not apparent how much, if any, is presently owed. Mrs Slattery has pointed to deficiencies in the accounting system of LJ Hooker. For example, on 22 May 2006, LJ Hooker issued an invoice to Dee-Tech for $897.39 for water consumption from 2 February 2005 to 19 June 2005 that appears to have been paid. LJ Hooker then issued a revised invoice with the same number and date for $713.61 that also appears to have been paid. Then on 14 November 2007 LJ Hooker issued yet another revised invoice reverting to the amount of $897.39. 122 In view of these apparent discrepancies, the appropriate course is to order the taking of an account of the moneys due to Neddam under the lease by an Associate Judge. Non-payment of costs 123 Neddam argued that the $4,000 it was ordered to pay for costs in the other proceedings should be set off against any arrears due to it under the lease. 124 This non-payment should be brought into the account to be taken by the Associate Judge. Relief from forfeiture 125 Where relief from forfeiture is sought with respect to non-payment of rent, the court generally regards the power to re-enter or forfeit for non-payment as security for the rent and, provided the lessor and other persons concerned can be put in the same position as before the forfeiture or re-entry, the lessee is entitled to be relieved against forfeiture upon payment of rent, costs and other expenses. In these circumstances, however, the lessee is not entitled to relief as of right. The court has a discretion in the matter even though it may be only in special circumstances that relief is refused (Pioneer Quarries (Sydney) Pty Ltd v Permanent Trustee Co of NSW Ltd (1970) 2 BPR 9562 at 9571-9572). 126 Were it not for the breach of the essential provision requiring insurance cover and Neddam was limited to breaches for non-payment of rent and non-payment of outgoings, Dee-Tech might have expected the court's discretion to be exercised in its favour. 127 But Neddam relies upon the breach of the insurance clause, a wilful default of an essential provision. There is no suggestion that the breach arose from ignorance or inadvertence. When its attention was drawn to its breaches, Dee-Tech deliberately decided not to remedy the situation. 128 In Shiloh Spinners Ltd v Harding [1973] AC 691 at 723, Lord Wilberforce said that no case supported the view that there was a general power in courts exercising equitable jurisdiction to relieve against men's bargains apart from the special heads of fraud, accident, mistake or surprise. His Lordship went on to say at 723-724: "But it is consistent with these principles that we should reaffirm the right of courts of equity in appropriate and limited cases to relieve against forfeiture for breach of covenant or condition where the primary object of the bargain is to secure a stated result which can effectively be attained when the matter comes before the court, and where the forfeiture provision is added by way of security for the production of that result. The word "appropriate" involves consideration of the conduct of the applicant for relief, in particular whether his default was wilful, of the gravity of the breaches, and of the disparity between the value of the property of which forfeiture is claimed as compared with the damage caused by the breach." 129 In Hayes v Gunbola Pty Ltd (1986) 4 BPR 9247 at 9250, Young J said that with a breach of a lease other than non-payment of rent, it was clear from the authorities that formerly one could never get relief against forfeiture where the breach was wilful and even nowadays it is difficult to get such relief. 130 In Sparta Nominees Pty Ltd v Orchard Holdings Pty Ltd [2002] WASC 54 at [253], Murray J said that the court, on occasions, displays a rather punitive attitude and may refuse relief in the exercise of discretion where the applicant for relief is a recidivist, in breach of the lessee's covenants on numerous occasions, or where the breach is wilful or deliberate, unless the lessee can be seen to recognise the error of his ways. 131 In Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2004) 217 CLR 315 the court considered relief from forfeiture under a contract for sale of land where the purchaser was unable to complete for lack of finance but obtained that finance on the day following the completion date. It was held that since the vendors had not caused or contributed in any way to the purchaser's breach and it was not unconscientious for them to exercise their contractual right to terminate the contract, relief from forfeiture was not available. At 335 [58], the majority referred to what Lord Wilberforce had said in Shiloh and said that where accident and mistake were not involved it would be necessary to point to the conduct of the vendor as having in some significant respect caused or contributed to the breach of the essential time stipulation. Their Honours endorsed what was said by Deane and Dawson JJ in Stern v McArthur [1988] HCA 51; (1987-1988) 165 CLR 489 at 526 about what was said in Legione v Hateley [1983] HCA 11; (1982-1983) 152 CLR 406 at 449: "Mason and Deane JJ were not saying that there must be unconscionable conduct of an exceptional kind before a case for relief can be made out. Rather, what was being said was that a court would be reluctant to interfere with the contractual rights of parties who have chosen to make time of the essence of the contract. Circumstances must be such as to make it plain that it is necessary to intervene to avoid injustice or, what is the same thing, to relieve against unconscionable - or, more accurately, unconscientious - conduct." 132 Counsel for Dee-Tech cited Gregory v Wilson (1852) 9 Hare 683; 68 ER 687 as authority for the proposition that where there was a breach of an insurance provision in a lease the court could give relief against forfeiture in respect of such a breach. 133 The authority is to the contrary effect. A decree for specific performance of an agreement for a lease was sought and it was argued that there had been such defaults as should prevent a decree being made. There had been for many years non-compliance with an insurance covenant and waiver and acquiescence was argued. But Turner VC concluded that the covenant was a continuing one and there was no ground for waiver beyond the period in which it was not sought to be enforced. The Vice Chancellor then said at [688], 690: "The landlord may, no doubt, have so dealt with the tenant as to have created an equity against himself sufficiently strong to control his legal right; but it cannot, I think, be disputed that a strong case would be required for the purpose."

The conclusion was that if the lease had been executed there would have been a forfeiture against which the court would not have relieved. 134 The history of persistent breaches of the terms of this lease; the wilful nature of the refusal to comply with Pt 5 of the lease; the absence of any explanation for the failure such as ignorance, inadvertence, accident or mistake; the absence of any action on the part of Neddam contributing to the failure; and the absence of Dee-Tech's recognition of the error of its ways lead me to the view that it is not unconscientious for Neddam to exercise its contractual right of re-entry and there is no need to intervene to avoid injustice. 135 I reject the claim for relief from forfeiture. Misleading and deceptive conduct 136 Neddam seeks damages for misleading and deceptive conduct by Mrs Streltschenko in breach of the Fair Trading Act, s 42. The representation is said to be her silence when she executed the lease and when she executed the variation of the lease that she was not the sole director and shareholder of Dee-Tech. 137 Apart from the question whether Mrs Streltschenko's silence arose in trade and commence, I do not see how the representation is made out by her execution of the documents. All she was representing was that she had the authority of Dee-Tech to do so, and she had. In 1999 she was the sole director of Dee-Tech and in May 2002 she and her husband and Leon Slattery were the directors. 138 Furthermore, the question of reliance arises. Neddam did not execute the contract for sale of the land until September 2002, well after the alleged representations by silence were made to Mr and Mrs Colmer and there was no evidence of its reliance upon an assumption that Mrs Streltschenko was the sole shareholder and director of Dee-Tech. 139 Representations to the contrary were contained in the returns made to the Australian Securities and Investments Commission and a search of its records would have revealed the actual position to Neddam before it executed the contract for sale or settled it. 140 I reject the claim of misleading and deceptive conduct. Conclusion 141 I will vacate the injunction granted against Neddam on 30 April 2007 and extended from time to time. 142 I will make an order for rectification of the variation of lease by the substitution of "1 February 2005" for "1 February 2006" in cl 9. 143 I will imply into the lease a new clause as follows or to that effect: " PART NINETEEN - OUTGOINGS 19.1 The Lessee must pay the Outgoings Percentage of all reasonable outgoings in association with the premises as specified in Item 7." 144 I will imply into the lease in substitution for clause 11.6 the following clause or to that effect: "11.6 Essential terms of this Lease include the Lessee's obligations in clauses 4.3, 6.1.1, 6.1.2, 19.1 and Parts 5 and 9." 145 I will order that an account be taken by an Associate Judge of the moneys due to Neddam under the lease as varied by the above implications and as varied by the variation of lease as rectified. 146 I will order that Neddam's failure to pay $4,000 by way of costs as ordered in proceedings numbered 1878 of 2005 on 9 June 2005 be taken into the account by the Associate Judge. I will otherwise dismiss the statement of claim. 147 I will order that Dee-Tech pay the amount determined by the Associate Judge together with interest at prescribed rates. 148 I will order Dee-Tech and Bright Star to give possession of the demised premises to Neddam. 149 I will order that Neddam have leave to issue a writ of possession forthwith upon the making of the above order. 150 I will order that mesne profits be paid from service of the writ to delivery of possession. 151 I will hear the parties on the appropriate terms of the orders and I will hear the parties on costs. 152 I direct the parties to bring in short minutes of order reflecting these reasons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.