Analysis
49 As indicated, the appellants have done everything required of them under the Deed and the respondent has obtained the contracted-for benefits in their entirety. The appellants have relinquished to the respondent their control over the eastern part of Jona's Road, by procuring its transfer to him, thereby giving him free access to the rear of his large block. The appellants have procured Brown to do all things necessary to enable registration of the Plan of Subdivision and s88B Instrument involving the enlargement of the respondent's land. And the appellants have effectively committed themselves to sharing in the cost of maintaining the roadway and other works crossing the respondent's land, subject to the registration of the Brooks transfer.
50 The only presently outstanding matter, and the entire goal of this litigation, is the procuring of the respondent's witnessed signature on a piece of paper capable of registration (when accepted) that reflects the current title situation. The concession recorded in the transcript at CB 8 (set out above) discloses that minor amendments to the first substitute Transfer would suffice, if initialled by the respondent; alternatively, the execution of a fresh document in the current Land Titles Office format whose inserted contents are readily ascertainable.
51 The respondent has been willing to sign two previous documents intended to achieve exactly the same as the now proffered document.
52 At one level, this whole case is a storm in a teacup. But viewed from the appellants' perspective, the finding as to unreasonable delay is tantamount to a determination that the Deed has come to an end.
53 The respondent's resistance to signing a further replacement Transfer has not been justified on any basis other than that he no longer wishes to cooperate with the appellants. In other words, nothing in the evidence suggests that performance would entail any hardship to the respondent, including any hardship stemming from the grant of a right of way in favour of Brooks that would replicate the existing right of way in favour of the appellants. This at least is relevant to determining whether, if there is any requirement that something be done within a reasonable time, an unreasonable time has elapsed. Of course, if the respondent is within his rights under the Deed, then his motivation is irrelevant.
54 A futility argument has not been raised by the respondent, so there is no basis for concluding that the appellants have nothing to gain by obtaining a currently registrable "Brooks Transfer".
55 It is vital to understand what, if anything, the respondent was being was being called upon to do in 2005/2006 in order to determine whether he would ever have been obliged to do it, as well as whether an unreasonable time for doing it had by then elapsed (assuming reasonableness of time is the touchstone).
56 The learned primary judge construed the relevant obligation under the Deed as one arising if and only if a request to execute an identical document to the specimen originally annexed to the Deed was made within a reasonable time (J42). The appellants submit that this misconstrued the effect of cl 5.1.3.
57 The respondent supports the reasoning of the trial judge. He contrasts the word "identical" in cl 5.1.3 with the words "in like form, substance and effect" in cl 5.4.1. Somewhat inconsistently in my opinion, he further submits that cl 5.1.3 imposed no more than an obligation to re-execute a transfer that he had already given (Respondent's Written Submissions, para 18) which I take to be a reference to the first substitute Transfer document.
58 There is, with respect to his Honour, a degree of ambiguity as to the contractual event perceived to have set running the clock that the appellants were found to have unreasonably ignored. There is a passing reference to "15 years" in J42, a time interval that commenced in 1992 when the parties first began their discussions. Other passages referring to the lapse of 11 years after the date of the Deed (J48-9, 56) suggest that his Honour viewed entry into the Deed as setting time running. The passage at J24 set out above also appears to contemplate that the right to give a notice in 2006 may turn upon the "invalidity" of the two earlier notices.
59 Another portion of the reasons examined the time lapse from 1995 (see J43, 49, 56), presumably on the basis that the respondent's plan of subdivision and s88B instrument were registered that year. Thus, his Honour records that everything else that was required to be done under the Deed was done by the middle of 1995 (J50).
60 In finding that the demand which the appellants were seeking to have enforced was first made in 2005/2006, his Honour said that attention needed to be focussed upon cl 5.1.3 of the Deed. He held that the document proffered to the respondent in 2006 was not one that he was obliged to execute because it was not "identical to and in substitution for" the document referred to in the Deed as "the Brooks' Transfer" (J63). His Honour construed "identical" to mean "exactly the same", "the very same" or "agreeing entirely in material, constitution, properties, qualities or meanings" (these meanings being derived from United States caselaw) (J59). An earlier passage also shows his Honour to have tested identicality by reference the actual document originally delivered (J57), ie the first Transfer document.
61 I respectfully disagree with this analysis. It has the effect of allowing the respondent to take advantage of the ineffectiveness of the first Transfer document notwithstanding that (a) the document was actually delivered; (b) the form of that document was the product of a misconstruction of cl 5.1; (c) the document was ineffective from the outset; and (d) the respondent was one of the parties to that document. I hasten to add that (a), (b) and (c) would be problems even if (d) were not.
62 Clause 5.1.3 needs to be interpreted in context and in light of the Deed as a whole, including the entirety of clause 5 itself.
63 The context was that the Deed was the means chosen by the parties to give effect to their mutual and individual interests in subdividing their respective blocks and thereby maximising the value of them. The respondent needed to obtain title to the original Jona's Road in order to secure his preferred access to Malton Road and the ideal means of becoming able to subdivide his land and sell off its rear portion as a separate lot. The appellants wanted access to a westward extension of Jona's Road for similar reasons.
64 Recital F captured the mutual aims. For convenience I repeat it:
F Both Gunner and Handley wish to develop and to subdivide Gunner's Land and Handley's Land respectively and Gunner and Handley have agreed to assist each other to develop and subdivide their respective properties.
65 Both parties knew that if and when Jona's Road extended across the Gunner land there would be costs incurred in building and maintaining it. The Deed and the Brooks Transfer that it contemplated sought to share those costs as between the Gunner, Handley and Brooks interests.
66 The parties to the Deed knew that "Handley" needed to bring the reluctant "Brooks" to the party if the appellants were to realise their longer term goals. Both parties also knew that Mr and Mrs Brooks were reluctant to commit in 1994, hence the "carrot" and "stick" provisions in the Deed. In truth, everyone recognised that there would be an element of "wait and see" as far as concerned the Brooks response. It may also be inferred that part of the intended strategy was that the Brookses might warm to the project as it developed through its earlier stages, including the subdivision of the Gunner land and the registration of the s88B instrument that would define the legal incidents of the various easements.
67 The parties contemplated that steps needed to be taken that would take time and were not entirely within their control. These included procuring the consent of the Council to the subdivision embodied in the Plan of Subdivision and s88B Instrument that were registered in 1995.
68 The suggestion raised by Mr Gunner in correspondence and apparently also through his counsel at first instance to the effect that the appellants should have embarked upon the construction of the extension of Jona's Road across the Gunner land prior to securing Mr and Mrs Brooks' acceptance of the Transfer in their favour is both unrealistic and contrary to the spirit of the written agreement. That agreement contemplated that it was to be the respondent who bore the cost of constructing the road across his land, something that would have been both burdensome and pointless (at least so far as the parties were concerned) without the Brooks' consent to the westward extension of the right of way. It does not lie in the respondent's mouth to complain that this expenditure has been delayed.
69 The Deed might come to an end by performance, frustration, rescission, or termination for breach. But none of these events have occurred.
70 The Deed bears many signs of having been designed as an enduring obligation. In this regard I include the stipulations that references to any party extend to the successors and permitted assigns of that party (cl 1.1(e)) and that references to any document or agreement include references to such document or agreement as amended novated supplemented varied or replaced from time to time (cl 1.1(f)). Clause 5 itself contemplates substitute transfers (see 5.1.3, 5.2 and also cl 1.1(a)) as well as obligations falling on the respondent (or his successors or assigns) to execute substitute Deeds and transfers on various contingencies likely to happen well after the date of the Deed (see cl 5.4). Clause 4 binds "Gunner" not to do things in Brooks' favour for an indefinite future period. Clause 8 addresses the burden of contributing to the "maintenance, repair or restoration" of the yet to be constructed works defined in the draft s88B Instrument over an indefinite period prior to the registration of "the Brooks transfer".
71 As I have indicated, cl 5.1 of the Deed spelt out the respondent's primary obligation, namely to do all things necessary to create the relevant rights over Gunner's land for the benefit of Brooks' land (see also Recital F). Obviously this meant all things that were within the respondent's power. The content of those easement rights was identified in cl 5.1 as being "substantially in the same form as the Transfer comprised in Schedule Five hereto ('the Brooks transfer')". This did not lock the parties into a situation where execution of the very Transfer in Schedule Five was the only means of achieving the relevant goal. Unfortunately, the use of the specimen document as the means of defining the scope of the obligation appears to have triggered confusion that has continued to this day.
72 When cl 5.1 is seen for what it truly is, and when the word "substantially" in that subclause is given the operation that the word demands, then it can be seen at once that some of the arguments raised by the respondent are quite untenable. The simple fact is that the respondent's execution of the first Transfer document did nothing to advance the scheme of the Deed. It may have been identical in form to the transfer found in Schedule Five. But that transfer was deficient from the outset in effectuating the contractual scheme. No one suggests that an unreasonable time elapsed before the first Transfer document was executed.
73 In 1995 the parties sensibly, and in my view correctly, recognised the appellants' entitlement to have at least one further transfer executed. The document I have described as the first substitute Transfer document, executed by the respondent in about that year, contained amendments necessary to accommodate the very dealings touching the Brown land and the Gunner land that the parties had arranged to happen in accordance with the Deed.
74 By 1995 the appellants had done all that they were then required to do under the Deed. And the respondent had obtained every benefit contracted for.
75 Mr and Mrs Brooks were still unwilling to come to the party.
76 Clause 5.1 may have used the term "the Brooks Transfer" to refer to the specimen in Schedule Five. But cl 5.1.2 used the same term to refer to an executed instrument. Clause 1.1(f) recognised that documents required in performance of the Deed may be "amended novated supplemented or replaced from time to time". Clause 8 expressly contemplated a "substitute [Brooks] transfer pursuant to Clause 5".
77 In this context, the respondent's submission that cl 5.1.3 should be read as arming the appellants with a single opportunity to call for a replacement "Brooks' Transfer" identical in form to the Transfer in Schedule Five must be rejected. Clause 5.1.3 should be given its plain meaning of enabling "Handley" to require "Gunner" to tender a substitute Transfer whenever the existing (executed) Brooks Transfer has been lost or destroyed or "any other reason" called for this to happen. The appellants could not use this power capriciously and oppressively. But a request for a replacement document to accommodate changes to the forms approved by the Land Titles Office occurring after the provision of the first substitute Transfer document was eminently reasonable.
78 It is unnecessary to determine whether more than one notice was permissible under cl 5.1 because that aspect of the clause is not directly applicable in the present case.
79 Since the respondent's obligations under the Deed in this regard were not spent by virtue of the events of 1995 and since the Transfer proffered in 2006 described the easement and title details in appropriate terms then, subject to the question of delay addressed below, the respondent should have complied.
80 This leaves the questions whether (a) there is an implication that the rights under cl 5.1.3 could only be exercised within "a reasonable time"; (b) when that time started to run; and (c) whether an unreasonable time had in fact elapsed.
81 The Deed contains no time stipulation and it remains in force. No time bars stemming from the Limitation Act 1969 or the principles of equity are engaged.
82 The appellants draw attention to the fact that cl 5.1.3 stipulates a reasonable time for "Gunner" to respond to a notice in writing requiring him to deliver a substitute transfer. There is no time stipulation governing when "Handley" may call for the substitute. And there is certainly no stipulation that set time running from the date of the Deed.
83 These are all valid propositions, although they do not necessarily get the appellants home.
84 Furthermore, cl 5.1.3 conditions "Handley's" right to call for a substitute Brooks Transfer upon "the Brooks' Transfer" being lost or destroyed or some other reason occurring. Such events are obviously capable of occurring more than once and at no particular interval of time after execution of the Deed. The analogy of a covenant for further assurance is at least suggested.
85 It follows that I cannot accept a submission that would draw from the terms of the Deed an affirmative implication that the right conferred by cl 5.1.3 was exercisable once only or even within a reasonable time from the date of the Deed. I have yet to address whether such a time requirement enters because of other considerations and this will entail analysis of this Court's decision in Ellmore (Maitland) Pty Ltd v Tull (1995) 7 BPR 14,305.
86 The respondent placed particular reliance on Ellmore. A contract for the sale of land entered into more than 12 years prior to the proceedings contained a condition that, following completion, the purchasers or their successors and assigns would, upon the written request of the vendor, lodge a plan of resubdivision in relation to a lot transferred so as to create two lots, and that upon registration of the plan one of the "new lots" would be transferred to the vendor without consideration.
87 It was held that the vendor's contractual right to request the purchasers to seek a resubdivision enured only for a reasonable time after the date of completion of that contract; and that the vendor did not make this request within such a time.
88 The Court rejected the vendor's submission that the request could be made at any time in the indefinite future. The implication of a reasonable time was derived from the terms of the contract considered in context (applying Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 345-356). That context included the fact that the relevant council was unable, unwilling and unlikely to consent to the further subdivision as at the date of contract (see p14,307).
89 Mahoney JA, with whose reasons Priestley JA and Sheller JA agreed, said (at pp14,307-8):
Where power is given to a party to a transaction to exercise a particular right and no time is specified for its exercise, it will commonly be implied that the right must be exercised within a reasonable time: see Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1 at 13 et seq; Amalgated Television Services Pty Ltd v Television Corporation Ltd (1969) 123 CLR 648 at 654, 655. As Dixon J said in Reid, "an implication of a reasonable time when none is expressly limited is, in general, to be made unless there are indications to the contrary". The reason for this is plain. It was referred to by Dixon J: otherwise "the land must be sterile in the hands of the owner in fee simple awaiting the pleasure of" the party who may give the notice but need not do so. The practical difficulties involved in the continued existence indefinitely of rights of the present kind suggest that the intention of the parties was, or is best to be effected by accepting, that the right must be exercised within a reasonable time.