Flemington Properties Pty Limited v Alpha Distribution Ministerial Holding... [2024] NSWSC 1631 | Case summary

Supreme Court of NSW|2024-09-05|Before: Williams J, The J

Solicitors: Johnson Winter Slattery (Plaintiff) King & Wood Mallesons (Defendant) File Number(s): 2022/168884 Publication restriction: N/A

The rent provisions of the Lease and their statutory context

The Lease is a deed dated 23 August 1967. In the terms in which it was executed, the first two pages of the deed provided that the lessor leases the Property to the lessee for a term of 99 years commencing on 1 June 1966: "… subject to the covenants conditions and restrictions herein contained or implied YIELDING AND PAYING THEREFOR during the term the yearly rent of TWENTY FOUR THOUSAND EIGHT HUNDRED AND FIFTY DOLLARS ($24,850.00) PROVIDED THAT after the effluxion of the first ten (10) years of the said term if on the first day of June during the continuance of the Lease a sum calculated at the rate of Eight per centum (8%) of the then current Unimproved Value (as determined pursuant to the Valuation of Land Act 1916 or any Act amending or in substitution for the same) of the freehold of the demised premises shall be greater than TWENTY FOUR THOUSAND EIGHT HUNDRED AND FIFTY DOLLARS ($24,850.00) then in the year commencing on such first day of June the rent shall be such greater sum calculated as aforesaid in lieu of TWENTY FOUR THOUSAND EIGHT HUNDRED AND FIFTY DOLLARS ($24,850.00) PROVIDED if at any time there shall be no unimproved value of the freehold of the demised premises (as determined pursuant to the Valuation of Land Act 1916 or any Act amending or in substitution for the same) and the Lessee shall not within one month after being requested in writing by the Lessor agree upon an amount as the Unimproved Value of the freehold of the demised premises then the determination of the said Unimproved Value shall be referred to Arbitration in accordance with the provisions of the Arbitration Act 1902 as amended PAYABLE quarterly in advance at the Office of the Lessor's by equal quarterly payments on the first day of the months of June September December and March in every year during the term the first of such payments having become due and payable on the first day of June One thousand nine hundred and sixty-six AND SUBJECT to the following covenants conditions and restrictions …"
The deed then set out numerous clauses containing covenants, conditions and restrictions, including covenants by the lessee to pay rent and to pay all taxes, impositions and outgoings payable in respect of the Property, covenants as to the lessee's use of the Property, and the lessor's covenant for quiet enjoyment. A clause numbered 29 conferred on the lessor the right to terminate the Lease by re-entry in the event of default, including if rent is in arrears for more than 14 days. The final clause of the deed numbered 37 provided: "THE Lessor for the purpose of determining the rental hereinbefore reserved may at any time but not more frequently than once in every three (3) years require a new valuation of the freehold of the demised premises to be made pursuant to the Valuation of Land Act 1916 as amended or any Act amending or in substitution for the same and the cost of such new valuation shall without limiting in any way any other provision hereof be paid by the Lessee to the Lessor on demand."
By the time Flemington purchased the Property in July 1992, the Valuation Act no longer provided for the Valuer-General to undertake valuations of the "unimproved value" of land. The bases of valuation for which the Act then provided included "land value", which was defined in s 6A, which relevantly provided that: "(1) The land value of land is the capital sum which the fee-simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona-fide seller would require, assuming that the improvements, if any, thereon or appertaining thereto, other than land improvements, and made or acquired by the owner or his predecessor in title had not been made. (2) Notwithstanding anything in subsection (1), in determining the land value of any land it shall be assumed that: (a) the land may be used, or may continue to be used, for any purpose for which it was being used, or for which it could be used, at the date to which the valuation relates; and (b) such improvements may be continued or made on the land as may be required in order to enable the land to continue to be so used, but nothing in this subsection prevents regard being had, in determining that value, to any other purpose for which the land may be used on the assumption that the improvements, if any, other than land improvements, referred to in subsection (1) had not been made."
A Variation of Lease registered in August 1992 replaced the "proviso" to the lessee's obligation to pay annual rent of $24,850 referred to at [13] above with the following (my emphasis): "PROVIDED THAT after the effluxion of the first ten (10) years of the said term if on the first day of June during the continuance of the Lease on a sum calculated at the rate of Eight per centum (8%) of the then current land value as determined pursuant to the Valuation of Land Act 1916 or any Act amending or in substitution for the same ('the Valuation of Land Act') or otherwise pursuant to this Lease ('the Land Value') of the freehold of the demised premises shall be greater than TWENTY FOUR THOUSAND EIGHT HUNDRED AND FIFTY DOLLARS ($24,850) then in the year commencing on such first day of June the rent shall be such greater sum calculated as aforesaid in lieu of TWENTY FOUR THOUSAND EIGHT HUNDRED AND FIFTY DOLLARS ($24,850) AND PROVIDED FURTHER THAT (a) if at any time Land Value is not or cannot be determined under the Valuation of Land Act, or if at any time the Valuer-General is for any reason unable or unwilling to determine the Land Value of the Premises and the Lessee shall not within one month after being requested in writing by the Lessor agree upon an amount as the Land Value of the freehold of the demised premises then the determination of the said Land Value shall be referred to arbitration in accordance with the provisions of the Commercial Arbitration Act 1984 as amended and in making his determination the arbitrator shall determine the Land Value in accordance with the provisions of the Valuation of Land Act as it then is or as it was immediately prior to Land Value ceasing to be determinable under the Valuation of Land Act; (b) for the purposes of determining the rent payable hereunder, the Land Value last determined pursuant to this Lease shall notwithstanding any repeal or amendment of the Valuation of Land Act continue to be applicable until such time as a new determination of Land Value has been made in accordance with this Lease; and (c) the parties may at any time, by written agreement, agree the Land Value or agree that the Land Value should be determined by a person other than the Valuer-General or other than by arbitration and may also agree that rent shall be calculated by reference to the Land Value as at and from a date agreed upon by the parties."
It is convenient to refer to that unnumbered clause as the rent clause.
The substance of the amendments to the first part of the rent clause are highlighted in bold above. The whole of sub-clauses (a) to (c) are new, replacing the earlier provision for the unimproved value to be determined by agreement or arbitration "if at any time there shall be no unimproved value of the freehold of the demised premises (as determined pursuant to the Valuation of Land Act 1916 or any Act amending or in substitution for the same)".
The Variation of Lease also amended clause 37 to read as follows (my emphasis in bold, highlighting the substance of the amendment): "The Lessor for the purpose of determining the rental hereinbefore reserved may at any time but not more frequently than once in every three (3) years require a new determination of the land value of the demised premises to be made pursuant to the Valuation of Land Act and the cost of any such new determination shall without limiting in any way other provision hereof be paid by the Lessee to the Lessor upon demand."
The Valuation Act, as it applied in August 1992, provided for: 1. the valuation by the Valuer-General of all land in each shire and municipality in New South Wales and in the Western Division under the Crown Lands Consolidation Act 1913 (NSW), each of which constituted a "valuation district" (ss 12-14A); 2. the preparation and maintenance of "valuation rolls" for each such district containing specified particulars of each valuation of land in that district, including the name and address of the owner of each freehold estate in the land and the "land value" of the land (s 16), with each valuation of land deemed to be effective for the purpose of the Valuation Act upon being recorded in the valuation roll for the relevant district (s 18); 3. the preparation of new valuations by the Valuer-General for any parcel of land, or for the whole or any portion of any district, at any time and "whenever necessary in order that the valuation rolls shall, as nearly as may be, represent correct values and ownership of all the lands and strata entered therein" (s 19); 4. the preparation by the Valuer-General, and the provision to specified rating or taxing authorities (being each council of a shire or municipality, the Metropolitan Water Sewerage and Drainage Board, the Hunter District Water Board, the Broken Hill Water Board, and the Commissioner of Land Tax), of a "valuation list" giving the particulars known to the Valuer-General of the ownership, occupation, value, title and description of all land and strata within the area of the relevant rating or taxing authority, at least once every six years (ss 47-48); 5. the provision of a "supplementary list" by the Valuer-General to each of those authorities containing information as to all changes of ownership, occupation, and values which have been made in the district valuation roll for that authority's area, with the supplementary list to be provided at a time arranged between the Valuer-General and the relevant authority in each year following the provision of the "valuation list" or at such time as the Valuer-General may decide in the absence of any such arrangement (s 49); 6. the levying and charging of rates and taxes by those rating or taxing authorities on the basis of the valuations entered into the valuation rolls (Part 5, including s 53); and 7. the use of the valuation rolls for certain other statutory purposes (Part 6).
The Valuation Act distinguished between three bases of valuation of land and strata - "improved value of land", "land value", and "assessed annual value". For the purpose of these proceedings, the relevant valuation basis is "land value" as defined in s 6A of the Valuation Act which I have extracted above.
The total of the value of all land and strata within the area of a rating or taxing authority particularised in a valuation list furnished by the Valuer-General pursuant to s 48 of the Valuation Act was treated for the purpose of the Act as a valuation of the area included in that valuation list, which was referred to as a "general valuation" (ss 4 and 7G).
Reading the Valuation Act as it applied in August 1992 as a whole, it is clear that the minimum six yearly intervals at which the Valuer-General was required to provide a valuation list to each rating and taxing authority would not necessarily correlate with the frequency with which the Valuer-General determined the land value of any particular parcel of land within the area of the relevant authority.
As I have already mentioned, section 19 of the Valuation Act conferred a discretion on the Valuer-General to make a new valuation of any parcel of land or stratum, or of the whole or any portion of any district, at any time. However, s 19 went further by providing that "such new valuations shall be so made whenever necessary in order that the valuation rolls shall, as nearly as may be, represent correct values and ownership of all the lands and strata entered therein". Pursuant to s 18, each such new valuation would be effective for the purpose of the Act upon entry into the relevant valuation roll.
The Valuation Act provided for at least three other circumstances in which the Valuer-General might make a new valuation of "land value" as defined in s 6A of the Act, and update the valuation roll accordingly: 1. if the holder of an estate in fee simple made an application in the prescribed form requiring the Valuer-General to make a new valuation of the land (s 20(1)); [1] 2. if the owner of a freehold estate in the land, or a lessee of the land, lodged an objection to a valuation, and if the Valuer-General or the Court upheld the objection by altering the valuation and amending the valuation roll accordingly (ss 29, 34-35, 37-40); and 3. if any public taxing or rating authority or any State or Commonwealth Department objected to a valuation, and if the Valuer-General or the Court upheld the objection by altering the valuation and amending the valuation roll accordingly (ss 31, 34-35, 37-40).
Section 57 of the Valuation Act required the Valuer-General to notify each rating or taxing authority concerned as soon as practicable after making any amendment or alteration to a valuation roll. This obligation is in addition to the requirements for the Valuer-General to provide those authorities with valuation lists at least once every six years and annual supplementary lists to which I have referred above.
Section 53 provided: "A valuation list, together with any supplementary list, shall, except as hereinafter provided, be the valuation roll or valuation book or assessment book of such authority until superseded, in whole or in part, by a subsequent list."
The Valuation Act has been amended many times since 1992. The Valuation of Land Amendment Act 2000 (NSW) introduced a new s 14A, which required the Valuer-General to ascertain the value of each parcel of land in New South Wales [2] each year as at 1 July in that year - referred to as a "general valuation" - and to enter the land value so ascertained into a Register of Land Values. The requirement for the Valuer-General to keep the Register of Land Values replaced the previous statutory obligation to maintain valuation rolls. Section 19, which had conferred a discretion on the Valuer-General to undertake valuations more frequently than the six-yearly intervals previously stipulated for the provision of valuation lists to rating and taxing authorities, and which had obliged the Valuer-General to do so if necessary to ensure that the valuation rolls reflected correct values, was repealed. The repeal of s 19 presumably reflected a legislative intention that the Register of Land Values would be kept sufficiently up to date by the annual general valuations required by the new s 14A, together with any additional determinations of land value that the Valuer-General may be required to make on the application of a holder of an estate in fee simple under s 20 of the Valuation Act or in response to objections. The 2000 amendments retained the requirement in ss 47-49 of the Act for the Valuer-General to provide valuation lists to rating and taxing authorities. Section 48 (as amended) required valuation lists to be provided to each such authority at least once every four years, and annually in the case of the Chief Commissioner of State Revenue, containing all information entered in the Register of Land Values relating to land in the relevant authority's area.
At all times relevant to the rent dispute that is the subject of these proceedings, the Valuer-General has been obliged by ss 14A, 14B, 14CC and 14DD of the Valuation Act to undertake a general valuation to ascertain the land value of the Property each year as at 1 July in that year, and to update the Register of Land Values accordingly.
At the time the rent dispute arose in 2022 and at all times subsequently, the Valuer-General has also been subject to the requirement to make valuations of land when required in accordance with s 20 of the Valuation Act, which provides: "(1) The following persons, that is to say - the holder of an estate in fee simple, the mortgagee in possession, any lessee who is liable to pay rates, may, by notice in or to the effect of a form approved by the Valuer-General and on payment of the fee determined by the Valuer-General require the Valuer-General to make a valuation of that person's land or of that person's interest therein, as the case may be. (2) … (3) A notice under this section may require the Valuer-General to make a valuation of the land - (a) as at the date of the valuation, or (b) as at any specified date occurring before the date of the valuation. (4) If the notice requires the Valuer-General to make a valuation of the land as at the date of the valuation, the Valuer-General is to enter the valuation in the Register of Land Values. (5) On making a valuation of land under this section, the Valuer-General - (a) must make such alterations to the Register of Land Values as are necessary to reflect the valuation, and (b) must issue a certificate to the person on whose application the valuation was made certifying details of the relevant entry in the Register of Land Values, as so altered. (6) … (5) A certificate under this section is conclusive evidence, as at the date specified in the certificate, that the details in the Register of Land Values in relation to a particular matter are as set out in the certificate."
The definition of "land value" has not changed in any way that is relevant to the issues to be determined in these proceedings. There has been no amendment to s 6A(1) and (2), which remain in the same terms as when the Variation of Lease was entered into, as set out at [15] above. As senior counsel for ADMHC accepted, that definition of "land value" applies both to general valuations undertaken in accordance with s 14A and to valuations undertaken on the application of the owner of the fee simple estate under s 20 of the Valuation Act.

Salient facts

Mr Bryan Weir is a director of Flemington. Mr Weir gave evidence, based on his knowledge and his review of Flemington's records, that Flemington has ascertained the "then current land value" of the Property for the purpose of calculating the annual rent payable under the rent clause from 1 June in each year of the term of the Lease since at least 1997 from a valuation provided by the Valuer-General. Flemington has calculated the annual rent as eight per cent of that land value, and has invoiced ADMHC for quarterly rent accordingly. Until 1 June 2022, ADMHC paid those quarterly rents invoiced by Flemington.
Pursuant to s 14A of the Valuation Act, the Valuer-General ascertained the land value of the Property as at 1 July 2021 to be $62,800,000, and issued a certificate of land value to that effect on 12 August 2021 (the 2021 general valuation).
On 28 April 2022, Flemington issued an invoice to ADMHC for rent for the quarter commencing 1 June 2022 in the amount of $1,381,600, being one quarter of eight per cent of the land value of $62,800,000, plus GST. [3]
On 2 June 2022, Flemington sent an email to ADMHC noting that the "June rent (due yesterday) is not yet in our account", and asking if it had been paid and, if not, when it would be paid.
On 3 June 2022, ADMHC paid Flemington the sum of $930,600, which was the GST-inclusive amount that Flemington had invoiced ADMHC for rent for the quarter commencing on 1 June 2021 based on the Valuer-General's s 14A valuation of $42,300,000 as at 1 July 2020.
Flemington issued an invoice to ADMHC for rent for the quarter commencing on 1 September 2022 in the amount of $1,381,600. On 5 September 2022, ADMHC paid the sum of $930,600. ADMHC's email to Flemington containing the remittance advice stated: "Payment has been made in the amount of $930,600 (being a quarter of 8% of $42,300,000). Ausgrid (on behalf of ADMHC) does not concede that the valuation as at 1 July 2020 in the amount of $42,300,000 is a determination of land value in accordance with or for the purposes of the lease, and reserves its rights."
Flemington issued invoices to ADMHC for payment of quarterly rent in the sum of $1,381,600 including GST for the quarters commencing on 1 December 2022 and 1 March 2023. In response to the issue of each invoice, ADMHC paid Flemington the sum of only $930,600.
Pursuant to s 14A of the Valuation Act, the Valuer-General ascertained the land value of the Property as at 1 July 2022 to be $82,700,000, and issued a certificate of land value to that effect on 9 September 2022 (the 2022 general valuation).
On 11 April 2023, Flemington submitted to the Valuer-General an application for a new valuation pursuant to s 20 of the Valuation Act as at 1 March 2023. The application was signed on behalf of Flemington by one of its directors, Mr Richard Pearson.
Mr Pearson sent the s 20 application by email to Mr Kieran Newton, who was the Principal Valuer - Government Assets in the New South Wales Department of Planning and Environment - Valuation Services.
Mr Newton forwarded Mr Pearson's email and the attached application to Mr Derek Hill of Valustate Pty Ltd, a private company offering valuation services. Mr Newton's email to Mr Hill stated: "Hi Derek, See attached request for Valuation under Section 20 of the Valuation of Land Act. I note you have done objections in the past on this. So think you may be the best to do the valuation. Full report required in accordance with Valuation of Land Act. Vg to approve. Call to discuss. Kieran"
Mr Hill inspected the Property on 6 May 2023 for the purpose of preparing a valuation report.
On 14 May 2023, Mr Hill sent Mr Newton a draft version of his valuation report for review.
On 22 May 2023, Mr Newton sent an email to Mr Pearson attaching Valustate's report dated 22 May 2023 signed by Mr Hill, together with a letter to Mr Pearson which stated (my emphasis): "Dear Richard, Certificate of Valuation Please find enclosed Certificate of Valuation for the following property: 38-50 Weeroona Road, Strathfield NSW 2135 The Certificate advises the fair market value Under Section 20 of the Valuation of Land Act and is prepared by a contract valuer authorised to make the valuation on my behalf. Yours faithfully Kieran Newton Under delegation for the Valuer General 22 May 2023"
The cover page of the valuation report described it as having been prepared for the Department of Planning & Environment - Valuation New South Wales on behalf of the Valuer-General pursuant to ss 6A and 20 of the Valuation Act. The report valued the freehold interest in the Property with vacant possession as $79,890,000 as at 1 March 2023. The report described the valuation basis as: "The value of the land in accordance with the Valuation of Land Act".
Shortly after receiving the valuation report by email, Mr Pearson enquired of Mr Newton whether there was any certificate of land value as referred to in the letter. Mr Newton replied that: "[t]he report and letter I attached satisfies this".
On 24 May 2023, Flemington wrote to ADMHC enclosing a copy of the valuation report and stating: "A dispute has arisen between Flemington Properties Pty Limited as the Lessor and Ausgrid (representing Alpha Distribution Ministerial Holding Corporation) as the Lessee. As you know, Flemington's view is that a valuation of the Land by the Valuer-General pursuant to Section 14A is a determination of the then current land value whilst Ausgrid's view, to the extent that it has been disclosed, is that a valuation by the V-G has to be specifically 'for the purposes of the Lease' in order to constitute a relevant determination. In order to introduce rental certainty for both parties for the rent year beginning on June 1, 2023 and in no way resiling from its position, Flemington has on March 1, 2023 requested the Valuer-General to determine the Land Value of the Land pursuant to Section 20 of the Valuation of Land Act ("the Valuation"). A copy of the request is attached - as you can see, the Valuer-General was specifically informed that the purpose of the valuation was rent determination and was provided a copy of the Lease. A copy of the resultant Valuation is also attached. The Valuer General determined that the Land Value of the Land, as at March 1, 2023, was $79,890,000. As this Valuation provides the current land value as at 1 June, 2023, the rent for the rental year beginning on June 1, 2023 is $6,391,200 + GST."
On 7 June 2023, ADMHC's solicitors wrote to the Valuer-General referring to Flemington's application to the Valuer-General and to the Valustate report, and seeking confirmation as to the following matters: "(a) whether the Application is in or to the effect of a form approved by the Valuer-General at the time, as referred to in section 20(1) of the Act; (b) whether, as referred to in section 20(5) of the Act, the alternations [sic] necessary to reflect the valuation set out in the Valustate Report have been made to the Register of Land Values; and (c) whether there is any instrument of delegation signed by the Valuer-General at the time which authorises Valustate to make valuations under section 20 of the Act on behalf of the Valuer-General at the time. If such an instrument does exist, our client respectfully seeks that a copy of that instrument be provided."
On 13 June 2023, Mr Stewart McLachlan, CEO of the New South Wales Department of Planning and Environment, responded on behalf of the Valuer-General, enclosing a copy of Flemington's application form and confirming that it was in an acceptable form and had been accepted by the Valuer-General. Mr McLachlan's letter then stated (my emphasis): "I also confirm on making of the valuation under section 20 of the Valuation of Land act (the Act), appropriate alterations have been made to the Register of Land Values as are necessary to reflect the valuation. Further, a certificate to Flemington Properties Pty Ltd was made certifying details of the relevant entry in the Register of Land Values, as so altered. A copy is provided at (attachment B). The value determined is a valid valuation pursuant to section 20 of the Act, with Mr Newton appropriately delegated. VNSW however, do not supply delegation instruments. For absolute clarity, I have asked Mr Newton and attached an updated letter (attachment C) confirming that it is Mr Newton who has determined the value as $79,890,000 (Seventy-Nine Million Eight Hundred and Ninety Thousand Dollars) following the review of our engaged contractor's valuation (attachment D)."
Attachment B comprised a valuation certificate dated 8 June 2023 ascribing a land value of $79,890,000.
The Register of Land Values was updated with the new valuation for the purposes of s 20(5) of the Valuation Act, but only on 8 June 2023.
Attachment C comprised the updated letter from Mr Newton dated 13 June 2023, which read (my emphasis): "Dear Richard, Certificate of Valuation Please find enclosed Certificate of Valuation for the following property: 38-50 Weeroona Road, Strathfield NSW 2135 The Certificate advises the fair market value that I have determined as $79,890,000 (Seventy-Nine Million Eight Hundred and Ninety Thousand Dollars) under Section 20 of the Valuation of Land Act 1916 as delegate of the Valuer General. I have enclosed the contract valuer's valuation report that I have relied on in making my valuation determination. Yours faithfully Kieran Newton"
It is convenient to describe the valuation referred to at [40]-[53] above as the s 20 valuation.
Flemington issued invoices to ADMHC for rent for the quarters commencing on 1 June 2023, 1 September 2023, 1 December 2023 and 1 March 2024 in the amount of $1,757,580, being one quarter of eight per cent of the land value determined by the s 20 valuation, plus GST. ADMHC continued to pay quarterly amounts of only $930,600.

Overview of the parties' contentions

Flemington contends that general valuations made under s 14A of the Valuation Act prior to 1 June in each year of the term of the Lease are determinations of "the then current land value as determined pursuant to the Valuation of Land Act 1916" within the meaning of the rent clause.
Flemington seeks a declaration to the effect that the determination of the land value of the Property made under the Valuation Act that is most current as at 1 June in each year of the term of the Lease is the "Land Value" for the purpose of calculating the annual rent payable for the year commencing on that 1 June in accordance with the rent clause, irrespective of whether that determination has been made under s 14A or s 20 of the Valuation Act as then in force, or otherwise under the Valuation Act as then in force, or under any Act that has been passed in substitution for the Valuation Act, unless the "Land Value" has more recently been determined by arbitration or agreement in accordance with sub-clause (a) or sub-clause (c) of the rent clause.
Flemington also seeks judgment against ADMHC in the sum of $5,111,920, calculated as the difference between: (1) the quarterly amounts of $930,600 paid by ADMHC in respect of rent for the quarters commencing on 1 June 2022 until and including the quarter commencing on 1 March 2024; and (2) the quarterly rental amounts of $1,381,600 (including GST) that Flemington invoiced to ADMHC for the quarters commencing on 1 June 2022 until and the quarter commencing 1 March 2023 on the basis of the 2021 general valuation, and $1,757,580 (including GST) for the quarters commencing on 1 June 2023 until and including the quarter commencing on 1 March 2024 on the basis of the s 20 valuation.
ADMHC opposes the declaration and judgment sought by Flemington. ADMHC contends that a determination of the land value of the Property made under s 14A of the Valuation Act is not "Land Value" within the meaning of the rent clause and the Lease, properly construed.
Referring to clause 37 of the Lease, ADMHC submits that s 20 is the only provision of the Valuation Act by which the lessor, as the owner of the fee simple estate, can require the Valuer-General to make a new determination of the land value of the Property. The Valuer-General's obligation to do so annually under s 14A of the Valuation Act does not stem from any requirement of the lessor. Accordingly, ADMHC submits that a s 20 valuation is the only means by which the Lease provides for a new "Land Value" to be determined under the Valuation Act, and that clause 37 permits the lessor to apply for a new determination under s 20 only once every three years. This submission emphasises the words "pursuant to this Lease" in the phrase in the rent clause "the then current land value as determined by the Valuation of Land Act 1916 … or otherwise pursuant to this Lease", and interprets sub-clauses (a) to (c) of the rent clause as "true provisos" which limit or qualify the preceding part of the rent clause. ADMHC submits that the effect of clause 37 together with those provisos in the rent clause is to permit "Land Value" to be determined for the purpose of the Lease in only one of three ways: (1) by a land value determination by the Valuer-General under s 20 of the Valuation Act once every three years (clause 37); (2) if that is not possible, by agreement or arbitration (rent clause sub-paragraph(a)); or (3) by written agreement (rent cause sub-paragraph (c)). ADMHC contends that sub-paragraph (b) of the rent clause confirms that a s 20 determination made in accordance with clause 37 of the Lease continues to serve as the "Land Value" for the purpose of the rent clause from year to year for at least three years until the lessor next applies to the Valuer-General pursuant to clause 37 to make a new determination of land value under s 20 of the Valuation Act. To put it another way, on each first day of June during the term of the Lease, the most recent s 20 determination of land value made in accordance with clause 37 of the Lease is, for the purpose of the first paragraph of the rent clause, "the then current land value as determined pursuant to the Valuation of Land Act 1916 … or otherwise pursuant to this Lease".
ADMHC submits that this construction is consistent with the scheme of the Valuation Act because s 14A general valuations are made for the purpose of the Valuer-General complying with their statutory obligations, not for the purpose of any private agreement between the land owner and a third party, such as the Lease.

Consideration and determination

The principles applicable to be applied in construing the rent clause are well established, and were not the subject of any dispute between the parties. The clause is to be construed objectively according to what a reasonable businessperson placed in the position of the parties would have understood the clause to mean having regard to the circumstances surrounding the Lease and Variation of Lease, and the commercial purpose and objects to be achieved by the Lease as varied (ascertained by reference to the genesis of the Lease and the Variation of Lease, the background, the context and market in which the parties are operating, and the terms of the Lease as varied). [4]
The Lease, as varied by the Variation of Lease, is a commercial contract. The Court is therefore entitled to approach the task of construing the rent clause on the basis that the parties intended to produce a result which makes commercial sense. This requires that the clause be construed in a manner that is consistent with the commercial object of the Lease and the Variation of Lease, objectively ascertained. However, that commercial object cannot be used to give the words of the rent clause a meaning that they cannot reasonably bear. [5] Caution is required when resort is had to assertions of commercial sense (or, conversely, commercial inconvenience) as a reason for construing a commercial contract in a manner that departs from the ordinary meaning of the language that the parties have in fact used. [6] There is "no licence for 'judicial rewriting' of an agreement". [7] The Court is not permitted to depart from the ordinary meaning of the words used by the parties merely because it regards the result as inconvenient or unjust. [8]
Applying those principles, I reject ADMHC's construction of the rent clause which I have summarised at [60]-[61] above.
ADMHC's construction relies heavily on clause 37 as a "fundamental part of the context in which [the rent clause] must be construed" because, according to ADMHC, clause 37 "provides for the circumstances of rent review, by way of request, under s 20, not more frequently than once every three years".
I reject ADMHC's characterisation of clause 37 as providing for "rent review". It is the rent clause itself which provides for annual rent review by stipulating the manner in which the yearly rent is to be calculated at 1 June in each year of the 99 year term of the Lease after the effluxion of the first ten years.
According to the ordinary meaning of the words used by the parties in the rent clause, yearly rent is to be calculated as eight per cent of the "Land Value", as defined in the rent clause, as at 1 June in each year of the term of the Lease after the first ten years.
The rent clause defines the term "Land Value" as "the then current land value as determined pursuant to the Valuation of Land Act 1916 or any Act amending or in substitution for the same ('the Valuation of Land Act') or otherwise pursuant to this Lease". The ordinary meaning of those words picks up any determination of "land value" pursuant to the Valuation Act (as amended from time to time, or pursuant to any substitute legislation in the event of a repeal) "or otherwise" pursuant to the Lease. The ordinary meaning of the words "or otherwise" convey a method of determining "land value" that is provided for in the Lease and that does not involve a determination pursuant to the Valuation Act.
Under s 20 of the Valuation Act as it applied when the parties entered into the Variation of Lease, and as it applies now, the lessor, as owner of the estate in fee simple, is entitled to require the Valuer-General to make a new valuation of the land at any time by giving notice to the Valuer-General in the prescribed form, and by paying the prescribed fee. As Flemington submitted, clause 37 of the Lease merely records the agreement between the lessee and lessor to limit to once every three years the frequency with which the lessor may require the Valuer-General to make new valuations of the land under s 20 for the purpose of determining the yearly rent, at the lessee's cost. I do not consider that clause 37 supports a construction of the words in the rent clause - "the then current land value as determined pursuant to the Valuation of Land Act 1916 or any Act amending or in substitution for the same ('the Valuation of Land Act') or otherwise pursuant to this Lease" - as limiting the determinations made pursuant to the Valuation Act that are to be applied in calculating the yearly rent to s 20 determinations made in accordance with clause 37. Such a construction would exclude s 14A general valuations. As Flemington submitted, that would be contrary to the ordinary meaning of those words in the rent clause which clearly encompass valuations of "land value" as defined in s 6A of the Valuation Act in accordance with the Valuer-General's statutory obligations under the Valuation Act, including under s 14A as in force at all relevant times since 2000. ADMHC's construction becomes arguable only if the words "or otherwise" are ignored and the word "and" is inserted in their place. That is the unarticulated basis of ADMHC's submission that s 20 valuations once every three years are the only valuation determinations made under the Valuation Act that are "pursuant to this Lease" and therefore the only valuations made pursuant to the Valuation Act that can be applied in any yearly rental calculation. I do not consider that the reasonable businessperson would have understood the words "or otherwise" (connoting an alternative determination of "land value" outside the Valuation Act but "pursuant to this Lease") to mean "and" (connoting a determination of "land value" pursuant to the Valuation Act in a manner that is also specifically provided for in the Lease).
Accepting that a valuation made under s 20 of the Valuation Act is not made "otherwise" than pursuant to the Valuation Act, clause 37 is not picked up at all by the words in the rent clause "or otherwise pursuant to this Lease". As I have explained above, clause 37 merely precludes the lessor from relying on s 20 valuations procured at the lessee's cost more frequently than once every three years for the purpose of rent review under the rent clause.
As I have explained at [60] above, the construction of the rent clause propounded by ADMHC also turns on its submission that sub-clauses (a) to (c) of the rent clause are "true provisos" which limit or qualify the whole of the preceding part of the rent clause. I reject that submission. Sub-clauses (a) to (c) are a "proviso" because they are preceded by the words "AND PROVIDED FURTHER THAT". As ADMHC accepted, the question is whether, applying the principles of contractual construction to which I have referred above, sub-clauses (a) to (c) merely qualify the part of the rent clause that precedes them, or whether sub-clauses (a) to (c) make some fresh provision.
Reading the rent clause as a whole, it contains two provisos.
The first proviso is directed to the calculation of the yearly rent payable in each year after the first ten years of the 99-year term of the Lease. As a matter of substance, that first proviso makes a fresh provision for rent in the period after the first ten years, adding to the preceding part of the rent clause which stipulates a fixed sum as the yearly rent. It is not a "true proviso".
The second proviso comprises sub-clauses (a) to (c). I accept Flemington's submission that the ordinary meaning of the words used in those sub-clauses is that the second proviso makes additional provision for three particular scenarios that the parties have foreseen as potentially arising in connection with ascertaining "Land Value" for the purpose of the rent clause, and which have not been specifically addressed in the first proviso. As Flemington submitted, a determination of "Land Value" in accordance with one of sub-clauses (a) to (c) would be a determination "or otherwise pursuant to this Lease" within the meaning of the definition of "Land Value" in the rent clause. That is to say, sub-clauses (a) to (c) are each alternative means of ascertaining "Land Value" for the purpose of the rent clause that do not require reference to a current determination of land value under the Valuation Act. Contrary to ADMHC's submissions, the second proviso has nothing to say about the means by which land value may be determined in accordance with the Valuation Act in order to be applied as the "Land Value" in calculating the yearly rent in accordance with the rent clause. The reasonable businessperson placed in the position of the parties would understand the use of the words "AND PROVIDED FURTHER THAT" as reflecting the structure of the rent clause which sets out a straightforward starting point for the rent payable for the first ten years of the very long term of the Lease, followed by a somewhat more complex process of determining yearly rent thereafter by a calculation based on a statutory valuation (the first proviso), subject to the alternatives in the second proviso if no statutory determination is available as at 1 June in any given year or if the statutory determination becomes invalid or ceases to exist by reason of repeal or amendment during that year (sub-clauses (a) and (b)) or if the parties agree the "Land Value" or agree to have it determined by arbitration (sub-clause (c)).
I reject ADMHC's submission that sub-clause (b) of the second proviso is not restricted to circumstances in which there has been a statutory amendment or repeal affecting the "Land Value" integer most recently applied in the determination of yearly rent. Sub-clause (b) has no work to do outside of those circumstances because the rent clause requires rent to be calculated annually with effect from 1 June and the sum so calculated then applies for that year commencing on 1 June. A statutory amendment or repeal calling into question the validity or existence of the determination of "land value" under the Valuation Act that the parties have applied as the "Land Value" for the purpose of calculating the yearly rent is the only circumstance in which the lessee's obligation to pay, and the lessor's obligation to accept, the yearly rent so calculated, might be the subject of uncertainty or dispute. Contrary to ADMHC's submissions, sub-clause (b) does not operate together with clause 37 to perpetuate a s 20 determination made in one year as the "then current land value as determined pursuant to the Valuation of Land Act 1916" within the meaning of the rent clause for the following three years despite the existence of more current s 14A general valuations made under the Valuation Act.
Contrary to ADMHC's submissions, I do not consider that it is relevant to the construction of the rent clause that s 14A general valuations are not required or instigated by the land owner, but are made for the purpose of the Valuer-General complying with their statutory obligations. As Flemington submitted, s 14A general valuations are no less a valuation of "land value" as defined in s 6A of the Valuation Act for that reason. As I have already stated, s 14A general valuations are therefore within the ordinary meaning of the words "the then current land value as determined pursuant to the Valuation of Land Act 1916 or any Act amending or in substitution for the same ('the Valuation of Land Act')" in the rent clause. Senior counsel for ADMHC accepted during the hearing that there is no difference in the valuation method applied by the Valuer-General for a s 14A general valuation and for a s 20 valuation.
My construction of the words in the rent clause "the then current land value as determined pursuant to the Valuation of Land Act 1916" as including a general valuation made under s 14A of the Valuation Act - if it is the most current valuation of "land value" made under the Act as at 1 June in the relevant year of the term of the Lease - does not render clause 37 of the Lease otiose. I reject ADMHC's submission to the contrary. As Flemington submitted, subject to one qualification, clause 37 permits the lessor at any time prior to 1 June in any given year of the term of the Lease to require the Valuer-General to make an even more current determination of "land value" than the general valuation made under s 14A as at 1 July in the preceding year. The qualification is that clause 37 precludes the lessor from doing so more often than once in every three years.
I reject ADMHC's submission that this construction of the rent clause would subvert the commercial purpose of clause 37, which ADMHC characterises as being to protect the lessee from unduly frequent changes to the rent payable under the Lease. That submission erroneously focusses on the words of clause 37 while ignoring the provisions of the rent clause, which requires an annual calculation of the yearly rent based on the determination of land value under the Valuation Act that is current as at 1 June in that year. The parties entered into the Variation of Lease containing that rent clause in circumstances where the Valuation Act then in force obliged the Valuer-General to value the Property as frequently as may be necessary to ensure that the valuation rolls represented, as closely as possible, the correct values of all lands entered therein. [9] There is no basis for attributing to the parties an intention that the rent should not change more than once every three years. The reasonable businessperson would have understood from the words of the rent clause that the parties intended that the rent would be calculated separately for each year, and that the rent may therefore change on a yearly basis. ADMHC's submission is tantamount to asking the Court to judicially re-write the parties' agreement by reference to the words of clause 37 viewed in isolation from the rent clause. This would undoubtedly be convenient for ADMHC having regard to the significant increase year-on-year since 2021 in the amount of the Valuer-General's s 14A valuations in respect of the Property. However, the Court has no licence to re-write the Lease, and the construction that I prefer is wholly consistent with the commercial object of the rent clause as ascertained from the ordinary meaning of the words of the clause, being the payment of a yearly rent calculated on the basis of the current determination of "land value" under the Valuation Act as at 1 June in each year, subject to sub-clauses (a) to (c) construed in the manner that I have explained above.
Finally, I reject ADMHC's submission that this construction gives rise to commercial inconvenience because it creates the potential for an "annual fight" about the rent payable under the Lease by facilitating the lessee exercising its statutory right under s 29 of the Valuation Act to object to the relevant annual s 14A valuation to be applied as the "Land Value" in the calculation of the yearly rent under the rent clause. I do not regard this as commercial inconvenience. It is common place for the rent under commercial leases to be reviewed on an annual basis, and for the lessor and lessee to have a different view about the fair or appropriate outcome of such reviews. In the present case, the selection of a statutory valuation as the objective basis for the annual review reduces the scope for such disputes.
For all of those reasons, I accept Flemington's submission that general valuations made under s 14A of the Valuation Act prior to 1 June in each year of the term of the Lease are determinations of "the then current land value as determined pursuant to the Valuation of Land Act 1916" within the meaning of the rent clause.
In coming to that conclusion, I have paid no regard to the manner in which yearly rent was calculated and invoiced by Flemington, and paid by ADMHC, in quarterly instalments in the period from 1997 until the current dispute arose in 2022. [10] As senior counsel for Flemington acknowledged, the conduct of ADMHC in paying rent calculated and invoiced by Flemington by reference to valuations undertaken by the Valuer-General in the period since 1997 is post-contractual conduct that is not relevant to the construction of the rent clause. The rent clause must be interpreted according to how the hypothetical reasonable businessperson placed in the position of the parties in August 1992 would have understood the rent clause inserted into the Lease by the registration of the Variation of Lease at that time. [11]
Flemington is entitled to a declaration substantially in the terms sought to the effect that the determination of the land value of the Property made under the Valuation Act that is most current as at 1 June in each year of the term of the Lease is the "Land Value" for the purpose of calculating the annual rent payable for the year commencing on that 1 June in accordance with the rent clause, irrespective of whether that determination has been made under s 14A or s 20 of the Valuation Act as then in force, or otherwise under the Valuation Act as then in force, or under any Act that has been passed in substitution for the Valuation Act, unless the "Land Value" has more recently been determined by arbitration or agreement in accordance with sub-clause (a) or sub-clause (c) of the rent clause.
Flemington is also entitled to judgment against ADMHC in a sum equivalent to the difference between: (1) the quarterly amounts of $930,600 paid by ADMHC in respect of rent for the quarters commencing on 1 June 2022 until and including the quarter commencing on 1 March 2024; and (2) the quarterly rental amounts payable by ADMHC in respect of those quarters under the rent clause, properly construed. On my construction of the rent clause, ADMHC was required to pay quarterly rent of $1,381,600 (including GST) for each of the quarters from and including 1 June 2022 up to and including the quarter commencing on 1 March 2023 on the basis of the 2021 general valuation. The amount of the quarterly rent payable by ADMHC for each of the quarters from and including 1 June 2023 up to and including the quarter commencing on 1 March 2024 depends on whether "the then current land value as determined pursuant to the Valuation of Land Act 1916" as at 1 June 2023 was the 2022 general valuation or the s 20 valuation. That is the subject of Issue 2, which I address immediately below.

Issue 2

The question raised by Issue 2 is whether the valuation report prepared on 22 May 2023 by Mr Hill of Valustate as a contract valuer engaged by the Valuer-General pursuant to Part 1A of the Valuation Act resulted in the Valuer-General making a valuation pursuant to s 20 of the Valuation Act on 22 May 2023 when the Valuer-General's delegate wrote to Flemington in the terms reproduced at [45] above, or on 8 June 2023 when the Department of Planning and Environment issued the certificate of land value and updated the Register of Land Values following which the Valuer-General's delegate first advised that the valuation had been made by him (as opposed to having been made by the contract valuer "on my behalf"), as referred to at [50]-[53] above.

Relevant statutory provisions

Section 13H of the Valuation Act relevantly provides (emphasis added): "(1) Any valuation for which the Valuer-General is required under section 13C to invite tenders for contested valuation service contracts must, and any other valuation under this Act may, be made by the Valuer-General on the recommendation of a contract valuer. (2) For the purpose of formulating recommendations in connection with a valuation, a contract valuer may exercise any relevant functions or discretions that expressly or impliedly belong to the Valuer-General … (3) The Valuer-General may make a valuation on the basis of such a recommendation - (a) without independently exercising relevant functions or discretions referred to in subsection (2), and (b) without independently assessing the accuracy of the recommendation. …"
Section 4 defines "contract valuer" as a person or body with whom the Valuer-General has a valuation service contract, and "valuation service" as a service involving the provision of valuation recommendations to the Valuer-General.
There is no dispute that Valustate was, at the time of the preparation of its valuation report on 22 May 2023, a contract valuer within the meaning of the Valuation Act.
Section 13A(3) of the Valuation Act provides that contract valuers "are not agents of and do not represent the Valuer-General", except where expressly provided by or under the Valuation Act, any other Act, or the valuation service contract. Neither party identified any provision of the Valuation Act, or any other Act, that expressly provides for Valustate, or for any contract valuer, to act as the agent for the Valuer-General, or to represent, the Valuer-General, for the purpose of making a valuation under s 20. There is no evidence of the terms of the relevant valuation service contract. There is no dispute that Mr Newton was a delegate of the Valuer-General, but s 8(5) of the Valuation Act does not authorise Mr Newton to delegate to Valustate or any other contract valuer any of the Valuer-General's statutory functions that had been delegated to him.
The Valuer-General's statutory functions include: 1. keeping the Register of Land Values, and issuing certificates to any person certifying details of an entry in the Register, with each such certificate being "conclusive evidence, as at the date specified in the certificate, that the details in the Register of Land Values in relation to a particular matter are as set out in the certificate" (ss 14CC and 14EE); and 2. making valuations of land under s 20 of the Valuation Act on the application of, relevantly, the land owner, as at the date of the valuation or as at an earlier date specified by the applicant (s 20(1) and (3)), following which the Valuer-General must make such alterations as are necessary to the Register of Land Values to reflect the valuation and issue a certificate to the person on whose application the valuation was made certifying details of the relevant entry in the Register so altered (s 20(5)). [12] Each such certificate is "conclusive evidence, as at the date specified in the certificate, that the details in the Register of Land Values in relation to a particular matter are as set out in the certificate" (s 20(5)). [13]

Overview of the parties' contentions

It is common ground that the Valuer-General may make a valuation under s 20 of the Valuation Act on the recommendation of a contract valuer in accordance with s 13H of the Valuation Act. Indeed, it is common ground that the Valuer-General did so in 2023. The only dispute between the parties is whether the Valuer-General did so on 22 May 2023 or on 8 June 2023.
Flemington contends, and ADMHC denies, that the s 20 valuation was made on 22 May 2023 when the Valuer-General's delegate sent the contract valuer's report to Flemington under cover of a letter enclosing the report, describing the report as a "Certificate of Valuation", and stating that the "Certificate" had been prepared by a contract valuer "authorised to make the valuation on my behalf". ADMHC contends that the s 20 valuation was first made by the Valuer-General on 8 June 2023, when the Valuer-General's delegate accepted the contract valuer's recommendation as to the value of the Property and issued a certificate accordingly pursuant to s 20(5) of the Valuation Act.
Flemington submits that the contemporaneous email communications between Mr Newton and Mr Hill support a finding that both the Valuer-General and his delegate Mr Newton reviewed and accepted Mr Hill's valuation report and that, read in the context of those communications, Mr Newton's 22 May 2023 letter to Flemington should be understood as meaning that Mr Newton, as the Valuer-General's delegate, had accepted Mr Hill's recommendation in accordance with s 13H of the Valuation Act. Flemington relies on either the 22 May 2023 letter, or the enclosed valuation report of Mr Hill, as a certificate of valuation. ADMHC submits that it is plain from the terms of the 22 May 2023 letter that Mr Newton understood that Mr Hill had made the valuation on his behalf, and that Mr Newton had not taken the distinct step required to decide to make a valuation on the basis of the recommendation in Mr Hill's report. ADMHC submits that, as the Valuer-General's delegate, Mr Newton had no power under the Valuation Act to delegate to Mr Hill his power to make a valuation on the basis of Mr Hill's report. Relying on s 13A of the Valuation Act, ADMHC submits that Mr Hill was not acting as the agent or on behalf of the Valuer-General, or the Valuer-General's delegate, in making his valuation report.
Both Flemington and ADMHC rely on the letter dated 13 June 2023 from Mr McLachlan, CEO of the New South Wales Department of Planning and Environment, on behalf of the Valuer-General, which stated that "it is Mr Newton who has determined the value as $79,890,000…following the review of our engaged contractor's valuation". Flemington relies on the letter as confirming that Mr Newton made the s 20 valuation on 22 May 2023. ADMHC relies on the letter, together with the enclosed certificate dated 8 June 2023 and the evidence that the Register of Land Values was not updated to reflect the s 20 valuation until 8 June 2023, as demonstrating that Mr Newton first made the s 20 valuation on 8 June 2023. Flemington contends that the certificate enclosed with the 13 June 2023 letter merely bears a print date of 8 June 2023, and that this does not derogate from the 22 May 2023 letter and enclosed valuation report which Flemington contends comprised a certificate of valuation as I have mentioned above.
Flemington further submits that it is not relevant that the details of the s 20 valuation were not entered into the Register of Land Values until 8 June 2023. Senior counsel for Flemington submitted that s 14CC(3) of the Valuation Act provides that an entry in the Register is conclusive evidence of the ascertaining of the land value, but does not require that a new valuation must be entered into the Register before it can be treated as being the then current value of the land.
Flemington relies on s 49(5) and s 49(6) of the Interpretation Act 1987 (NSW), which provide that: "(5) A delegated function that purports to have been exercised by a delegate shall, until the contrary is proved, be taken to have been duly exercised by the delegate. (6) A delegated function that is duly exercised by a delegate shall be taken to have been exercised by the delegator."

Consideration and determination

If the s 20 valuation was made on 22 May 2023, as Flemington contends, then it was the most recent determination of the land value of the Property pursuant to the Valuation Act as at 1 June 2023. On that basis, Flemington seeks a declaration that the "then current land value" of the Property within the meaning of the rent clause as at 1 June 2023 was $79,890,000 (being the amount of the s 20 valuation). Alternatively, if the Court accepts ADMHC's contention that the s 20 valuation was made on 8 June 2023, then Flemington seeks a declaration that "then current land value" of the Property within the meaning of the rent clause as at 1 June 2023 was $82,700,000 (being the amount of the 2022 general valuation made on 9 September 2022 referred to at [39] above).
I have determined that the s 20 valuation was made on 8 June 2023 for the following reasons.
As ADMHC submitted, there is a conceptual distinction reflected in the terms of s 13H of the Valuation Act between the recommendation of a contract valuer, and any subsequent valuation made by the Valuer-General (or his delegate) on the basis of such a recommendation. That is to say, the Valuer-General (or his delegate) does not make a valuation merely by engaging a contract valuer to make a recommendation as to land value. By reason of s 13A(3) of the Valuation Act, a contract valuer's report is not made by the contract valuer as the agent or representative of the Valuer-General. It follows that the Valuer-General (or his delegate) must take the distinct step of deciding whether or not to make a valuation on the basis of the contract valuer's recommendation (s 13H(3)).
I accept ADMHC's submission that Mr Newton's statement in his 22 May 2023 letter that the enclosed valuation report had been "prepared by a contract valuer authorised to make the valuation on my behalf" demonstrates that Mr Newton was proceeding on an erroneous understanding of the role of the contract valuer, and that he did not appreciate that Mr Hill's report was not a valuation made under s 20 of the Valuation Act. There was no legal basis on which Mr Hill could make a valuation on behalf of the Valuer-General or his delegate. The valuation would be made pursuant to s 20 only if and when the Valuer-General, or his delegate Mr Newton, decided to accept the recommendation in Mr Hill's report. Such a decision does not follow as a matter of course on receipt of a contract valuer's report. The Valuer-General or delegate may request the contract valuer to revise their recommendation pursuant to s 13H(5) of the Valuation Act. Even then, there is no obligation for the Valuer-General or delegate to make a valuation on the basis of that revised recommendation. The terms of the 22 May 2023 letter give rise to an overwhelming inference that neither the Valuer-General nor Mr Newton had made any decision at that time to make a valuation on the basis of Mr Hill's recommendation. Contrary to Flemington's submissions, the contemporaneous email correspondence does not suggest otherwise.
The fact that no alteration was made to the Register, and no certificate was issued, until 8 June 2023 further supports the conclusion that the s 20 valuation was made on that date and not on 22 May 2023. Section 20(5) of the Valuation Act [14] requires the Valuer-General to make such alterations to the Register as are necessary to reflect a valuation made under s 20, and to issue a certificate certifying the details of the relevant entry in the Register so altered, "[o]n making a valuation of land under this section". I reject Flemington's submission that the date on which the Register was altered is irrelevant. Contrary to Flemington's submission, neither the 22 May 2023 letter nor the enclosed valuation report of Mr Hill was a certificate. I accept that s 20(6) permits the Valuer-General to determine the form of a certificate, but the 22 May 2023 letter did not even purport to be a certificate. It merely referred to an enclosed certificate, which was not in fact enclosed. Mr Hill's valuation report was not a certificate because it did not certify details of the relevant entry in the Register altered in accordance with s 20(5). The Register was not altered until 8 June 2023. Mr Newton's assertion on 22 May 2023 that his letter together with the report constituted a certificate was simply wrong. [15]
Contrary to Flemington's submissions, the 13 June 2023 letter sent by Mr McLachlan, CEO of the New South Wales Department of Planning and Environment, on behalf of the Valuer-General, does not confirm that Mr Newton made the s 20 valuation on 22 May 2023. The letter has been drafted in terms that obfuscate the timing of Mr Newton's decision to accept Mr Hill's recommendation.
Sections 49(5) and 49(6) of the Interpretation Act do not assist Flemington. For all of the reasons I have explained above, Mr Newton's letter of 22 May 2023 evidences his purported reliance on Mr Hill's valuation as one made on his behalf, contrary to s 13A(3) of the Valuation Act. Mr Newton's 22 May 2023 letter is not evidence of a purported exercise of the delegated function of making a valuation of land under s 20 of the Valuation Act on the basis of a recommendation of a contract valuer.
It follows that the s 20 valuation in the amount of $79,890,000 was not the "then current land value" of the Property within the meaning of the rent clause as at 1 June 2023, and Flemington's claim for a declaration to that effect must be dismissed. However, Flemington is entitled to the alternative declaration sought to the effect that the "then current land value" of the Property within the meaning of the rent clause as at 1 June 2023 was $82,700,000 (being the amount of the 2022 general valuation made on 9 September 2022). The amount of the monetary judgment to be entered in favour of Flemington against ADMHC to which I have referred at [83] above is to be calculated accordingly.

The context in which Issues 3 and 4 arise

As I have explained earlier in these reasons, determinations of land value made by the Valuer-General under the Valuation Act are entered into the Register of Land Values maintained by the Valuer-General under that Act.
As the owner of the Property, Flemington is liable to pay land tax assessed annually pursuant to ss 9 and 9AA of the Land Tax Act on the basis of the average of the land values entered in the Register of Land Values for the Property for the relevant land tax year (from 1 January to 31 December) and for the two preceding land tax years. The Chief Commissioner of State Revenue issues Land Tax Assessment Notices in a form which identifies the land value of those three years, and the average land value applied in the assessment of the land tax levied on the owner.
The Lease requires ADMHC to pay the land tax pursuant to the covenant to "pay taxes and all impositions and outgoings of whatsoever nature which are at any time during the term payable in respect of the demised premises or the user or occupation thereof or any service or supply thereto" (the outgoings covenant). There is no dispute that this includes land tax.
The higher the land value determined by the Valuer-General, the higher the amount of yearly rent payable by ADMHC pursuant to the rent clause in the Lease, and the higher the amount of land tax for which Flemington is liable and which ADMHC is obliged to pay under the outgoings covenant in the Lease.
Section 29(1) of the Valuation Act requires the Valuer-General to give notice to specified persons of the valuations contained in the valuation lists provided to local councils, including the owner of the freehold estate in the land, and any lessee of the land under a written lease for a term exceeding three years who is liable under the lease to pay the whole or any part of any rate or tax to a rating or taxing authority in respect of the land. The Valuer-General has power under s 15 of the Valuation Act to gather information concerning tenancies of land, and is required to include in the Register of Land Values information concerning the occupation of land. These provisions facilitate the Valuer-General giving notice of valuations to the owner of the land and also to any lessee to whom such notice is required to be given under s 29(1).
Pursuant to s 29(3A) of the Valuation Act, each person to whom notice of a valuation is given under s 29(1) has a right to lodge a written objection to the valuation with the Valuer-General on any ground stipulated in s 34, including that the values assigned are too high or too low. Section 33 requires the objection to be in a form approved by the Valuer-General.
Section 29(3B) of the Valuation Act requires the objector to give notice of the objection, and the reasons for the objection, to each other person who is entitled to receive notice of the land valuations under s 29(1).
Sections 35B and 35C of the Valuation Act require the Valuer-General to consider an objection duly made, and to either allow or disallow the objection, and to notify the objector accordingly. To the extent that the objection is disallowed, the Valuer-General is required to give reasons for that decision.
Thus, the Valuation Act confers on both Flemington and ADMHC a right of objection to determinations of land value made under that Act. Each of them is required to notify the other of any such objection and the reasons for the objection. Whilst there is no express statutory right for either of them to be heard in opposition to an objection lodged by the other, I infer that notice of the objection affords them an opportunity to make written representations or submissions to the Valuer-General which are then taken into account in the determination of the objection.
As the "taxpayer" liable to pay land tax, Flemington also has a right of objection to land tax assessments under s 86 of the Taxation Administration Act 1996 (NSW) (the TA Act), including by objecting to the land values entered in the Register of Land Values on which land tax assessments are based,. ADMHC has no right of objection under the TA Act as the lessee of the land. The TA Act does not require Flemington to give notice of its objection to any other person, including ADMHC.
The evidence tendered in these proceedings includes objection forms lodged by Flemington with the Valuer-General on 18 March 2020 and 10 March 2021. As will become apparent below, those objections are the subject of Issue 3. Each of those forms requires the objector to specify: (1) the property and the landholder; (2) the objector and whether they are making the objection as the landholder or as the authorised agent of the landholder; (3) whether the objector is "objecting to the land value or property information on my" notice of valuation or land tax assessment; (4) the land value to which the objection relates; and (5) the ground of the objection (e.g. that the value is too low or too high). The form requires the objector to confirm, by signing the form, that "I have told all the other landholder/s that I am requesting a review".
I infer from the information fields in that form that the Valuer-General has adopted a practice of receiving directly from taxpayers any objections to land tax assessments - which are in substance an objection to one or more of the land valuations underpinning the "average value" that is the basis of the land tax assessment - and that the Valuer-General has one prescribed form that is required to be completed in order to initiate either an objection to a valuation by a person who is entitled to receive notice of that valuation under s 29 of the Valuation Act, or an objection by a taxpayer to a land tax assessment under s 86 of the TA Act. That form requires the objector to specify which type of objection they are making. The type of objection is relevant to the Valuer-General's determination process because s 35 of the Valuation Act specifies different time periods within which each type of objection may be made, and because s 35AA of the Valuation Act precludes a taxpayer from objecting to a valuation used as the basis of a land tax assessment if the valuation has previously been the subject of an objection under s 29 of the Valuation Act. Those provisions in ss 35 and 35AA of the Valuation Act implicitly contemplate that taxpayer objections to land tax assessments will be made directly to the Valuer-General, consistently with the practice indicated by the Valuer-General's form.

Issue 3

Issue 3 arises out of: (1) an objection made by Flemington on 18 March 2020 to the land value of the Property in the land tax assessment notice issued to Flemington for the 2020 land tax year; and (2) an objection made by Flemington on 10 March 2021 to the land value of the Property in the land tax assessment notice issued to Flemington for the 2021 land tax year. In each instance, Flemington's ground of objection was that the land value was too low. It is common ground that Flemington did not notify ADMHC of the objections. The Valuer-General allowed each objection by increasing the land value, which resulted in the Chief Commissioner of State Revenue charging additional land tax to Flemington in respect of the 2020 and 2021 years. Relying on the outgoings covenant in the Lease, Flemington passed those additional land tax charges on to ADMHC, and the additional charges were subsequently paid by the Ausgrid Operator Partnership (the sublessee under the operating sublease) directly to Flemington.
ADMHC complains that: "Flemington took the highly unorthodox step of objecting (without ADMHC's knowledge) that it had been assessed for too little land tax, and seeking that an assessment for a greater amount be made. That conduct was liable to increase the amount of land tax assessed on the Land and therefore the amount required to be indemnified by ADMHC under cl 2(3) of the Lease."
The reference to clause 2(3) of the Lease is a reference to what I have called the outgoings covenant.
In furtherance of its complaint that Flemington did not notify it of the objections to the 2020 and 2021 land tax assessments, ADMHC contends that Flemington made those objections under s 29 of the Valuation Act and that it was therefore required by s 29(3B) to give notice of the objections to ADMHC. Flemington disputes this, and says that it lodged those objections as the taxpayer pursuant to s 86 of the TA Act and that it had no statutory obligation to notify ADMHC of the objections. Flemington's objections were lodged using the Valuer-General's objection form to which I have referred at [114]-[115] above. Flemington has completed each form so as to clearly indicate that it is objecting to the land value on its land tax assessment. I find that each objection form initiated an objection to land tax assessment under s 86 of the TA Act and that Flemington had no statutory obligation to notify ADMHC of the objection.
ADMHC submits that its obligation under the outgoings covenant to discharge Flemington's liability in respect of taxes, impositions and outgoings, including land tax, is an obligation in the nature of an indemnity.
ADMHC contends that it is an implied term of the Lease that: "Flemington will not do any act which is liable to increase the amount of any taxes, impositions or other outgoings which ADMHC is obliged to pay under [the outgoings covenant]."
ADMHC submits that it is a fundamental principle of insurance law that the insured is precluded by an implied term from recovering on the policy if the insured intentionally caused the loss or event upon which the insurance moneys were expressed to be payable. Drawing an analogy between a contract of insurance and ADMHC's obligation to indemnify Flemington under the outgoings covenant, ADMHC submits that an implied term to the effect set out above should be accepted as either a legal incident of its obligation under the outgoings covenant, or as being implied in fact in order to give business efficacy to the Lease in accordance with the well-established principles in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (BP Refinery). [16]
ADMHC submits that Flemington's past conduct in making objections to land tax assessments in breach of the alleged implied term gives rise to a reasonable apprehension that it will breach the alleged implied term in the future. By prayer 6 of its cross-claim, ADMHC seeks an injunction restraining such apprehended breaches in the following terms: "An injunction, for so long as [Flemington] remains the registered proprietor of the Property and [ADMHC] remains the lessee of the Property under the Lease, restraining [Flemington], without the express prior written consent of [ADMHC], from lodging an objection with the Valuer-General and/or Commissioner of State Revenue in respect of land tax assessments for the Property."
As Flemington submitted, the outgoings covenant in the Lease is not analogous to a contract of insurance. ADMHC's obligation to indemnify Flemington in respect of taxes, impositions and outgoings, including land tax, is but one element of their legal relationship as lessee and lessor under the Lease. Flemington, as the lessor to whom rent is paid under the Lease, has a legitimate economic interest in ensuring that valuations made under the Valuation Act, which affect the calculation of the yearly rent as well as the assessment of land tax, are an accurate reflection of the "land value" of the Property as defined in s 6A of the Valuation Act. The implied term for which ADMHC contends would preclude Flemington from making any objection to a valuation made under the Valuation Act which Flemington considered to be inaccurate, including any objection pursuant to s 29 of the Valuation Act in addition to objections pursuant to s 86 of the TA Act, except with the prior written consent of ADMHC. That consent would be unlikely to be given, as it would be contrary to ADMHC's economic interest in minimising its liability for rent and land tax to consent to an objection that might result in an increase in the valuation of the Property. Bona fide objections to land value determinations by Flemington are not similar or comparable to an insured's intentional damage to insured property or other intentional act causing loss for which it is indemnified under a policy of insurance. I reject ADMHC's submission that the term for which it contends should be implied as a "legal incident" of the obligation of indemnity under the outgoings covenant.
I also reject ADMHC's submission that the term should be implied in fact. In my opinion, the proposed implied term fails several elements of the five point test in BP Refinery - particularly the requirements that it be reasonable and equitable, and so obvious that "it goes without saying" - because it would deprive Flemington of its statutory right of objection under s 29 of the Valuation Act which is an important right for the protection of Flemington's legitimate economic interests as the owner of the Property and the lessor to whom yearly rent is payable under the Lease calculated in accordance with the rent clause.
As the Lease is not subject to the implied term propounded by ADMHC, there is no basis for the Court to grant the injunction sought to restrain apprehended breaches of that alleged term. ADMHC's claim for that injunction must be dismissed.

Issue 4

As I explained earlier in these reasons, ADMHC subleased its leasehold interest in the Property to the Ausgrid Asset Partnership entities on 1 December 2016 (which I refer to as the asset sublease), and the Ausgrid Asset Partnership entities then entered into a sub-sublease with the Ausgrid Operator Partnership entities (which I refer to as the operator sublease). ADMHC neither sought nor obtained Flemington's consent for those subleases, but Flemington now accepts that the Lease is an "electricity network asset" within the meaning of the ENA Act, that the subleases were therefore "authorised transactions" under Part 2 of the ENA Act, and that ADMHC's conduct in entering into the asset sublease and permitting the Ausgrid Asset Partnership entities to immediately enter into the operator sublease was not a breach of the Lease by reason of s 48 of the ENA Act.
Clause 2.3(b)(i) of the asset sublease contains an acknowledgement by ADMHC (as sublessor) and the Ausgrid Asset Partnership entities (as sublessee) that the grant of the sublease is subject to "all reservations contained in the applicable Head Lease" (referring to the Lease between Flemington and ADMHC), and that the rights of the Ausgrid Asset Partnership entities under the asset sublease are "subordinate to the rights of the lessor under the Head Lease".
Clause 2.3(d) of the asset sublease provides: "To the extent it is not permissible under a Head Lease for the Lessee to exercise (or procure the exercise of) or to perform (or procure the performance of) the Lessor's rights and obligations under or in relation to the Head Lease, the Lessor must exercise those rights and perform those obligations in accordance with the reasonable directions of the Lessee. For the avoidance of doubt, a direction will not be reasonable if compliance with it would cause the Lessor to breach any Law or any provision of the Head Lease."
That is to say, ADMHC must comply with reasonable directions of the Ausgrid Asset Partnership entities to exercise ADMHC's rights and perform ADMHC's obligations under the Lease, provided that this would not cause ADMHC to breach any law or to breach the Lease.
Clause 6.7(c) of the asset sublease provides (emphasis added): "If requested by the Lessee [the Ausgrid Asset Partnership entities], the Lessor [ADMHC] must apply to the relevant Government Agency for a reduction in, or deduction from, the liability of the Lessee or any Permitted Sublessee (or the Lessor's liability, where that liability is passed onto the Lessee under this Lease) to pay land tax in respect of the Leased Land or the Network Land or a reduction in, or deduction from, any valuation relevant to the calculation of such land tax, but only to the extent the Lessor [ADMHC] is permitted by Law to apply for such reduction or deduction. The application will be at the cost of the Lessee. For these purposes the Lessee will pay all of the costs incurred by the Lessor including its reasonable internal costs such as of time spent."
Clause 5.8(c) of the operator sublease provides (emphasis added): "(c) If requested by the Sublessee [the Ausgrid Operator Partnership entities]: (i) the Sublessor [the Ausgrid Asset Partnership entities] must apply to the relevant Government Agency for a reduction in, or deduction from, the Sublessee's liability (or the Lessor's or Sublessor's liability, where that liability is passed onto the Sublessee under this Sublease) to pay land tax in respect of the Leased Land or the Network Land or a reduction in, or deduction from, any valuation relevant to the calculation of such land tax, but only to the extent the Sublessor is permitted by Law to apply for such reduction or deduction; and (ii) the Sublessor must exercise its rights under clause 6.7(c) of the Distribution Network Lease in accordance with the Sublessee's directions (except to the extent such directions are inconsistent with clause 6.7(c) of the Distribution Network Lease), in which case such application and costs incurred by the Lessor (as referred to in clause 5.8(c)(i) or in clause 6.7(c) of the Distribution Network Lease) will be at the cost of the Sublessee."
Under the applicable laws to which I have referred at [104]-[115] above, ADMHC, the Ausgrid Asset Partnership entities and the Ausgrid Operator Partnership entities are not permitted to apply for a reduction in or deduction from land tax assessed under the Land Tax Act. Section 86 of the TA Act confers that right of objection only on Flemington, as the taxpayer liable to pay the land tax.
However, each of ADMHC, the Ausgrid Asset Partnership entities (collectively) and the Ausgrid Operator Partnership entities (collectively) is a person described in s 29(1)(c) of the Valuation Act - namely, a "lessee of the land under a written lease for a term exceeding three years who, under the lease, is liable to pay the whole or any part of any rate or tax to a rating or taxing authority in respect of the land" . It follows that the Valuer-General is obliged by s 29(1) to notify each of ADMHC, the Ausgrid Asset Partnership entities (collectively) and the Ausgrid Operator Partnership entities (collectively) of each valuation of the Property that is contained in a valuation list furnished to the council of the relevant local government area, and that each of them has a right under s 29(3A) of the Valuation Act to lodge with the Valuer-General a written objection to any such valuation. As I have already mentioned, s 29(3B) requires the objector to notify each other person who is entitled to be notified of the valuation under s 29(1), including Flemington.
Contrary to Flemington's submissions, neither clause 6.7(c) of the asset sublease nor clause 5.8(c) of the operator sublease provides for ADMHC, the Ausgrid Asset Partnership entities (or any of them) or the Ausgrid Operator Partnership entities (or any of them), to make objections to land tax assessments or land valuations that they are not permitted by law to make. Under the laws currently in force, the effect of which I have summarised at [104]-[115] and [133]-[134] above, those clauses of the subleases do not operate to permit or require ADMHC, the Ausgrid Asset Partnership entities (or any of them) or the Ausgrid Operator Partnership entities (or any of them) to do anything other than lodge objections with the Valuer-General to land value determinations in accordance with s 29 of the Valuation Act. Those objections must be notified to Flemington pursuant to s 29(3B).
Issue 4 arises out of two objections lodged by a Mr John Avery with the Valuer-General on 20 February 2023 to the 2021 and 2022 land values identified in the land tax assessment notice issued to Flemington on 10 January 2023 as the basis for the calculation of the "average value" of the Property underpinning the 2023 land tax assessment.
Mr Avery was the "Key Person" nominated to perform specialist land tax consulting services for the Ausgrid Operator Partnership entities under a consulting agreement between those entities and Firetail Consulting Pty Limited dated 14 September 2022. The consulting agreement described the scope of those services in the following terms (emphasis added): "The Services (description and requirements): The Key Person providing Comprehensive review of 2017 to 2022 land tax assessments and unimproved land valuations underlying the calculation of the land tax liability. Including: 1. Valuations - Review valuation successes to date and potential application to other years - Look at the viability of applying the same process to other Ausgrid assets - Consult externally with agreed valuers regarding the valuation methodology being applied to Ausgrid assets and whether this is open to challenge - Review the valuations of heritage listed and conservation land and any other assets with potential concessions or exemptions - Lodge valuation objections as necessary and manage the process to completion - Liaise with Property NSW as necessary - Track and update status of all objections as necessary - Report status to Ausgrid on regular basis 2. Land Tax Assessments - Review 2017 to 2020 assessments for potential errors and other savings. - Review 2021 and 2022 assessments as they issue. - Consider application of concessions and exemptions in the Land Tax Management Act to Ausgrid assets. - Lodge amendment requests and objections and manage the process to completion. - Liaise with Revenue NSW as necessary. - Track and update status of all amendments and objections as necessary - Reconcile amended assessments as they issue - Report status to Ausgrid on regular basis and The Key Person working with Ausgrid Strategy Property team in an effort to reduce overall opex undertake a comprehensive review of our land tax assessments and unimproved land valuations underlying the calculations of the land tax liability."
The requirement for Firetail Consulting, through Mr Avery as the Key Person, to lodge "valuation objections as necessary" is not inconsistent with the applicable laws. As I have explained above, as the sublessee under the operator sublease, the Ausgrid Operating Partnership entities (collectively) have a statutory right of objection to land valuations under s 29 of the Valuation Act. In my opinion, a reasonable businessperson in the position of the parties to the consulting agreement and with knowledge of the provisions of clause 5.8(c) of the operator sublease which limited valuation objections to those permitted by law, would not have understood the inclusion of lodging "valuation objections as necessary" in the scope of the services under the consulting agreement as permitting, authorising, or requiring Firetail Consulting or Mr Avery to lodge other objections that the Ausgrid Operator Partnership entities were not permitted by law to make.
On 10 January 2023, the Chief Commissioner of State Revenue issued a land tax assessment notice to Flemington, assessing Flemington's land tax liability in respect of the Property for the 2023 land tax year as $1,242,766.65, based on the average of land values of the Property for the 2021, 2022 and 2023 years, being $63,323,333.
On 17 January 2023, Flemington issued an invoice to ADMHC for the land tax so assessed, plus GST. That invoice was promptly paid by the Ausgrid Operator Partnership entities directly.
On 20 February 2023, Mr Avery lodged two objections with the Valuer-General. The first related to the land value of the Property determined as at 1 July 2021 and objected that the value was too high. The second related to the land value of the Property determined as at 1 July 2022 and objected that the value was too high. The documents entitled "Valuation Objection Form" that were tendered in evidence appear on the face of them to be compilations of information extracted from the objection forms lodged by Mr Avery that has been saved in the Valuer-General's information systems, rather than copies of the forms in the precise form in which Mr Avery completed and lodged them. I say that because those documents do not contain any field in which Mr Avery has been required to sign the document. I will nevertheless refer to those documents as the Avery objections.
The Avery objections stated that: 1. the owner of the Property was "Flemington Properties Pty Ltd, Ausgrid"; 2. the objector was John Avery, as agent; 3. the "objection type" was "land tax assessment"; and 4. the client ID was 2154163.
The client ID number recorded on the Avery objections is Flemington's taxpayer ID which appears on land tax assessment notices issued to Flemington and forwarded by Flemington to ADMHC in the process of seeking payment of the land tax pursuant to the outgoings covenant under the Lease. I infer that ADMHC provided copies of those assessment notices to the Ausgrid Asset Partnership entities and the Ausgrid Operator Partnership entities as and when the land tax charges for the Property were passed down the line for payment or reimbursement. I further infer that the Ausgrid Operator Partnership entities provided copies of those notices to Mr Avery for the purpose of his performance of the land tax consulting services under the consulting agreement. I do not consider that there is any basis to infer that ADMHC or the Ausgrid Operator Partnership entities knew or intended that Mr Avery would use that client ID number for the purpose of making any objection to the Valuer-General purportedly on behalf of Flemington.
In my opinion, it is tolerably clear from the description of the "objection type" as "land tax assessment" that Mr Avery was purporting to object to the land tax assessment, which necessarily involved an objection to land valuations underpinning the assessment. As I have already explained, the statutory right to make such an objection is found in s 86 of the TA Act and is available only to Flemington as the taxpayer. It is inherently probable that, as a specialist land tax consultant, Mr Avery knew this. For that reason, and because the Avery objections describe the "owner" as "Flemington Properties Pty Ltd, Ausgrid" and cite Flemington's client ID number, I find that Mr Avery purported to lodge the objections under s 86 of the TA Act, inaccurately describing himself as the agent of both Flemington and "Ausgrid", using the Valuer-General's prescribed form to which I have referred at [114]-[115] above. It is somewhat unclear whether the reference to "Ausgrid" in the Avery objections was intended to refer to ADMHC or to the Ausgrid Operator Partnership entities, but the latter is more probable in circumstances where it was the Ausgrid Operator Partnership entities that had engaged Firetail Consulting to provide Mr Avery's land tax consultancy services. I therefore find that Mr Avery represented that he was making the objection under s 86 as the agent of both Flemington (which was the land owner and taxpayer) and the Ausgrid Operator Partnership entities (which were the ultimate sublessee of the Property under the operator sublease). I reject ADMHC's submission that the Avery objections were made under s 29 of the Valuation Act.
Flemington was not notified of the Avery objections, both of which were disallowed by the Valuer-General on 2 May 2023 on the basis that the Valuer-General decided to accept the recommendation of its own valuer. The Avery objections therefore did not result in any change to the land value of the Property in the Register of Land Values as at 1 July 2021 or 1 July 2022.
Flemington submits that ADMHC made, or permitted the lodgement of, the Avery objections, and that it did so in breach of an implied duty of good faith in the Lease. Flemington submits that there are reasonable grounds to apprehend future similar breaches of the alleged implied duty of good faith over the remaining 41 years of the term of the Lease, and seeks injunctive relief in the following terms: "9 An injunction, for as long as [Flemington] remains the registered proprietor of the Property, restraining [ADMHC], without the express prior written consent of [Flemington], from dealing with or making representations, or permitting or authorising any dealings or representations, to the Valuer General or Commissioner of State Revenue, local council or any other government or regulatory authority, objecting to, or with a purpose of lowering or affecting, land tax in relation to the Property, other than any objection or representation which [ADMHC] may be permitted to make pursuant to s 29 of the VOL Act. 10 Further or in the alternative to 9, an injunction, for as long as [Flemington] remains the registered proprietor of the Property, restraining [ADMHC], without the express prior written consent of the [Flemington], from making representations, or permitting or authorising representations by or on behalf of any party to the [asset sublease and the operator sublease], to the Valuer General or Commissioner of State Revenue, local council or any other government or regulatory authority, to the effect that [ADMHC] or that party: a. is the registered proprietor of the Property; b. represents or acts for [Flemington] or the registered proprietor of the Property; or c. conveys the opinion(s) or view(s) of [Flemington] or the registered proprietor of the Property. 11 An order requiring [ADMHC] to immediately provide, upon [ADMHC's] receipt or notification of same to [Flemington] a copy of any application, objection, or other communication to the Valuer General or Commissioner of State Revenue, local council or any other government or regulatory authority from [ADMHC] or any party to the Subleases relating to the Property."
I reject Flemington's submission. As ADMHC submitted, the evidence does not support a finding that it made or permitted the lodgement of the Avery objections. As senior counsel for Flemington emphasised, the consulting agreement was signed by Mr Nigel Lowry under power of attorney for the Ausgrid Operator Partnership entities. Mr Lowry is also the General Counsel of the Ausgrid Group, which includes ADMHC. However, as I have explained above, the terms of the asset sublease that ADMHC entered into with the Ausgrid Asset Partnership entities, and the terms of the operator sublease that those entities then entered into with the Ausgrid Operator Partnership entities, do not entitle those sublessees to make objections to valuations underpinning land tax assessments, or to require the sublessors to do so, except to the extent that they are permitted by law to make such objections. As I have found above, the terms of the consulting agreement that the Ausgrid Operator Partnership entities entered into with Firetail Consulting did not authorise or purport to authorise it or Mr Avery, acting on behalf of the Ausgrid Operator Partnership entities, to lodge objections to land valuations underpinning land tax assessments contrary to law.
Assuming (without deciding) that Mr Lowry's knowledge of the terms of the consulting agreement obtained in his capacity as power of attorney for the Ausgrid Operating Partnership entities is attributable to ADMHC through Mr Lowry as its General Counsel, [17] ADMHC's knowledge of the terms of the asset sublease, the operating sublease, and the consulting agreement does not amount to knowledge that Mr Avery would lodge objections to valuations underpinning land tax assessments in respect of the Property contrary to s 86 of the TA Act, wrongly representing to the Valuer-General that he was acting on behalf of Flemington in doing so. Mr Avery's conduct was not permitted or contemplated by the terms of the asset sublease or the operator sublease. Contrary to Flemington's submissions, Mr Avery's conduct has nothing to do with ADMHC failing to treat the rights of the sublessees under the subleases as subordinate to the rights and obligations subsisting between Flemington and ADMHC under the Lease. Nor was Mr Avery's conduct permitted or authorised by the terms of the consulting agreement between Firetail Consulting and the Ausgrid Operator Partnership entities.
Assuming (without deciding) that an obligation of good faith is implied in the Lease, Mr Avery's conduct did not involve or flow from any conduct on the part of ADMHC that was capable of constituting a breach of that implied obligation. It is not necessary to address the parties' submissions about whether s 48 of the ENA Act would have provided a defence to any such breach.
For all of those reasons, Flemington's claim for prohibitive and mandatory injunctions against ADMHC in the terms set out at [146] above, must be dismissed.

Issue 5

Relying on clauses 28 and 31 of the Lease, Flemington seeks an order that ADMHC pay its costs of these proceedings on an indemnity basis.
Clause 28 of the Lease provides: "THE Lessee shall save harmless and keep indemnified the Lessor from and against all loss liability costs charges and expenses and all manner of actions suits proceedings controversies claims and demands of whatsoever nature or kind and howsoever sustained or occasioned which the Lessor may suffer or incur or to which the Lessor now is or may hereafter become subject or liable and which arise from or are in any way connected with or incidental to the occupation and use by the Lessee of the demised premises during the term or subsequently thereto or the proximity of the demised premises to the railway or the presence upon the demised premises or the leakage issue or flow therefrom or thereinto of rain flood or other water gas electricity fire or any harmful agent whatsoever AND the Lessee shall accept all responsibility in connection therewith PROVIDED that the Lessee shall not be liable to indemnify the Lessor under this clause in any case where the negligence of the Lessor his servants or agents is the sole cause of such loss liability costs charges expenses actions suits proceedings claims and demands."
Clause 31 of the Lease provides (emphasis added): "31 WITHOUT in any manner limiting any other provisions in this Lease in relation to the costs and expenses hereinafter mentioned:- (a) The Lessee shall pay to the Lessor on demand all costs and expenses of the Lessor of any nature whatsoever in relation to the creation and determination of the Lease or of any dealing therewith or otherwise arising out of this Lease AND all costs and expenses in relation to the carrying out of surveys and the preparation of plans of the demised premises the supervision of work the provision of watchmen and flagmen where any work affecting the demised premises is in progress in the vicinity of railway property the relocation of any service of the Lessor in the opinion of the Lessor rendered necessary by the Lessee's use or proposed use of the demised premises or otherwise arising out of the performance of any work or the provision of any labour materials or any other matter or thing by the Lessor in pursuance of this Lease AND all the abovementioned costs and expenses shall be recoverable by the Lessor from the Lessee as a debt or liquidated demand…"
It was submitted on behalf of Flemington that clauses 28 and 31 provide a broad entitlement to Flemington to be indemnified "from and against all loss, liability, costs, charges and expenses and all manner of actions, suits, proceedings…" and that the grounds for not providing indemnity are limited to situations where Flemington's negligence is the sole cause of the loss.
I accept the submissions made on behalf of ADMHC that the terms of clause 28 read as a whole, and read in the context of the Lease as a whole, do not entitle Flemington to recover its costs of these proceedings on an indemnity basis. I accept ADMHC's submission that clause 28 is directed to the lessee's occupation and manner of use of the premises, and liabilities that may arise out of hazards thereby created, including from the leakage of water or gas, or fire, on the premises.
However, I consider that the ordinary meaning of the words used in clause 31(a), particularly those which I have emphasised above, render ADMHC liable to indemnify Flemington for its legal costs of these proceedings which have arisen out of the Lease, excluding the costs of Flemington's claims for injunctive relief against ADMHC which did not arise out of the Lease for the reasons that I have explained above. I reject ADMHC's submission that clause 31(a) is directed only to "transactional costs" associated with the creation, determination and dealing of the Lease. There is nothing in the terms of the Lease as a whole that warrants such a narrow reading of the wide words of clause 31(a). [18] ADMHC also submitted that the construction of clause 31(a) as encompassing the costs of these proceedings would render otiose other indemnities and provisions in the Lease about payment of costs. That submission cannot be accepted having regard to the words of the chapeau to clause 31.
Flemington's unsuccessful claims for injunctive relief against ADMHC were a separable issue in the proceedings in respect of which it is my opinion that costs should follow the event.

Conclusion

For all of the foregoing reasons, the orders of the Court are as follows: 1. DECLARE that the determination of the land value of the property comprised in Folio Identifier 1/XXXXXX (the Property) made pursuant to s 14A or s 20 of the Valuation of Land Act 1916 (NSW), or otherwise pursuant to that Act as amended from time to time or under any Act in substitution for that Act, that is most current as at 1 June in each year of the term of the Lease No. 391 Book 2858 (the Lease) is the "Land Value" for the purpose of calculating the yearly rent under the Lease, unless the "Land Value" has otherwise been more recently determined pursuant to sub-clause (a) or sub-clause (c) of the rent clause in the Lease. 2. DECLARE that the "then current land value as determined pursuant to the Valuation of Land Act 1916" within the meaning of the Lease as at 1 June 2023 was $82,700,000. 3. JUDGMENT for the plaintiff against the defendant in the sum of $5,359,200, being the difference between: 1. the amount of $930,600 paid by the defendant to the plaintiff in respect of quarterly instalments of yearly rent under the Lease for the quarter commencing on 1 June 2022 until and including the quarter commencing on 1 March 2024; and 2. the amount payable by the defendant to the plaintiff in respect of quarterly instalments of yearly rent under the Lease, properly construed, being: 1. $1,381,600 (including GST) per quarter for the quarter commencing on 1 June 2022 up to and including the quarter commencing on 1 March 2023; and 2. $1,819,400 (including GST) per quarter for the quarter commencing on 1 June 2023 up to and including the quarter commencing on 1 March 2024. 1. ORDER that interest is payable pursuant to s 100 of the Civil Procedure Act 2005 (NSW) on the judgment sum in order 3 above, calculated in respect of each quarterly component of that judgment sum from the first day of the relevant quarter up to the date of judgment. 2. RESERVE for further consideration the plaintiff's claim for damages in prayer 3 of the Amended Statement of Claim. 3. ORDER pursuant to clause 31(a) of the Lease that the defendant is to pay the plaintiff's costs of the proceedings on an indemnity basis, as agreed or assessed, save for the costs of the plaintiff's claims for relief in prayers 9 to 11 of the Amended Statement of Claim (as further amended during the hearing). 4. ORDER that the plaintiff is to pay the defendant's costs of the plaintiff's claims for relief in prayers 9 to 11 of the Amended Statement of Claim (as further amended during the hearing) on the ordinary basis, as agreed or assessed. 5. ORDER that the plaintiff's claims for relief in the Amended Statement of Claim are otherwise dismissed. 6. ORDER that the Cross-Claim is dismissed. 7. List the matter for directions before Williams J at 9.30am on 14 February 2025 in respect of the plaintiff's claim for damages in prayer 3 of the Amended Statement of Claim

Endnotes

Section 20(1) also provided for applications to be made by mortgagees in possession and lessee's liable to pay rates for a new valuation of their estate or interest in the land, but that would not require a determination of land value as defined in s 6A of the Act.
With the exception of Crown lands and land within the Western Division. Those exceptions are not relevant to the present case.
Eight per cent of $62,800,000 amounts to $5,024,000, one quarter of which is $1,256,000, which is increased to $1,381,600 after adding GST of $125,600.
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35] (French CJ, Hayne, Crennan and Kiefel JJ); Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 at [16]-[18] (Kiefel, Bell and Gordon JJ); Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd (2023) 276 CLR 500; [2023] HCA 6 at [27] (Kiefel CJ, Gageler , Gordon, Gleeson and Jagot JJ).
The J & P Marlow (No. 2) Pty Ltd v Hayes and McCabe (2023) 112 NSWLR 29; [2023] NSWCA 117 at [79] (Bell CJ), citing Australian Casualty Co Ltd v Federico (1986) 160 CLR 513 at 520; [1986] HCA 32 (Gibbs CJ) and Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 388 (Mustill LJ).
Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd (2019) 101 NSWLR 679; [2019] NSWCA 185 at [58] (Bell P, as the Chief Justice then was); XL Insurance Co SE v BNY Trust Company of Australia Ltd [2019] NSWCA 215 at [78]-[79] (Gleeson JA, Bell P and Emmett AJA agreeing).
Newey v Westpac Banking Corporation [2014] NSWCA 319 at [91] (Gleeson JA, Basten and Meagher JJA agreeing); Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 at [72]-[73] (Leeming JA, Gleeson and White JJA agreeing).
McGrath v Sturesteps (2011) 81 NSWLR 690; [2011] NSWCA 315 at [17] (Bathurst CJ, Macfarlan JA and Sackville AJA agreeing), referred to with approval in Cherry v Steele-Park at [74] (Leeming JA, Gleeson and White JJA agreeing).
Section 19 of the Valuation Act as in force in August 1992: see [24] above.
See [32] above.
Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57 at [35] (Gummow, Hayne and Kiefel JJ); MetLife Insurance Ltd v RGA Reinsurance Company of Australia Ltd [2017] NSWCA 56 at [98] (Leeming JA, McColl JA and Emmett AJA agreeing).
The first sub-clause (5) in s 20.
The second sub-clause (5) in s 20.
The first numbered sub-section (5) of section 20.
See [47] above.
(1977) 180 CLR 266 at 282-283 (Lord Simon, Viscount Dilhorne and Lord Keith).
Neither of the parties addressed this issue.
Central Coast Council v Norcross Pictorial Calendars Pty Ltd (2021) 391 ALR 157; [2021] NSWCA 75 at [123] (Bathurst CJ, Macfarlan and Gleeson JJA agreeing). 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. Decision last updated: 20 December 2024

Crown Lands Consolidation Act 1913(NSW)

Valuation of Land Amendment Act 2000(NSW)

Valuation of Land Act 1916(NSW)ss 4, 6A, 8, 13A, 13H, 14A, 14CC, 14EE, 19, 20, 29, 48

(2019) 101 NSWLR 679

Flemington Properties Pty Limited v Alpha Distribution Ministerial Holding Corporation

At a glance

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Catchwords

Judgment (16 paragraphs)

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Legislation Cited (8)

Cases Cited (24)