Harrington & Anor v Harrington Services Pty Ltd

1 The Plaintiffs ("Mr and Mrs Harrington") are the registered proprietors of land in Sydney Street, Willoughby, upon which there is a nursing home known as Trentham Convalescent Home ("Trentham"). Since July 1980, when Mr and Mrs Harrington agreed to purchase the land, the business of the nursing home has been conducted by the First Defendant ("Harrington Services") which, at all material times, was the Trustee of the Harrington Family Trust. The sole directors and shareholders of Harrington Services were Mr and Mrs Harrington. 2 On 18 September 2000, the Second Defendants were appointed as voluntary administrators of Harrington Services pursuant to s.436A of the Corporations Law (Cth), and on 27 March 2001 they were appointed voluntary liquidators. 3 From July 1980 until 1 October 1997 Harrington Services received certain subsidies from the Commonwealth pursuant to the National Health Act, 1953 (Cth), as amended from time to time ("the National Health Act "). On 1 October 1997 the National Health Act was replaced by the Aged Care Act, 1997 (Cth) ("the Aged Care Act ") and subsidies were received thereafter by Harrington Services under that Act. Subsidy rights in respect of nursing homes payable under the Aged Care Act are transferable in certain circumstances. By an agreement made on 26 November 2001, the Second Defendants, as liquidators of Harrington Services, sold to a third party rights to the subsidies payable under the Aged Care Act in respect of nursing home care provided at Trentham. The Second Defendants assert that Harrington Services was the owner of the nursing home business conducted at Trentham and that the subsidy rights were assets of that business. 4 Mr and Mrs Harrington assert that the nursing home business conducted by Harrington Services was, in fact, not owned by it; rather, they say, the business was owned by them and was leased to Harrington Services pursuant to a lease, partly written and partly oral, the terms of which were partly express and partly implied. They claim that the subsidy rights under the Aged Care Act are property derived from the conduct of the nursing home business and are assets of that business; those assets must be returned to them, they say, upon termination of the lease of the business pursuant to terms which are to be implied in that lease, or else by reason of the imposition of a constructive trust, or because a fiduciary relationship existed between Harrington Services and themselves or, finally, by application of the principles of unjust enrichment. 5 The sale of the subsidy rights has now been completed and the Second Defendants have received the purchase price, namely, $2 million. By their Statement of Claim filed on 25 January 2002, Mr and Mrs Harrington claim that they are entitled to the whole of that sum without deduction and they seek declarations and orders accordingly. The issues

was the nursing home business at Trentham owned by Harrington Services or was it leased from Mr and Mrs Harrington;

if the nursing home business was leased, were the subsidy rights under the Aged Care Act leased property;

if the subsidy rights were not assets of the leased business, must Harrington Services nevertheless account for the value of those rights to Mr and Mrs Harrington as a constructive trustee, as a fiduciary or upon the principles of unjust enrichment.

I begin with a consideration of the applicable legal principles. What is a "lease of a business"?

7 Throughout the case both parties have used the expression "lease of the nursing home business". I do not think that there is any difference between the parties as to what is meant by that concept although, as a concept, it sounds a little strange to a black-letter property lawyer. In strict legal usage, the subject matter of a lease is confined to land and interests in land, in the earlier cases referred to as corporeal and incorporeal hereditaments: see e.g. The Sheffield Wagon Company Limited v Stratton (1878) 40 LT(NS) 86, at 87; Jones v Commissioner of Inland Revenue [1895] 1 QB 484, at 493. But there had been even earlier cases in which the Courts saw nothing remarkable in speaking of "leases" of chattels or "reversionary interests" in chattels: see e.g. Spencer's Case (1583) 5 Co. Rep. 16a, at 16b; Gordon v Harper (1796) 7 TR 9 (101 ER 828) per Lord Kenyon at 11, and per Ashurst J ibid; Jenkins v Cooke 1 Ad&E 372, at 374 (110 ER 1248, at 1250). 8 The later cases recognise that in popular and commercial parlance what might be more properly called a bailment or a hiring of chattels is sometimes referred to as "a lease": see e.g. Halsbury's Laws of England Vol.27(1) para.17 fn.11. A "lease" of a business, however, would encompass more than a bailment of the chattels used in the conduct of that business. It would often include a lease of the premises in which the business is conducted, and it would always include a lease of the goodwill attached to the business since the goodwill of a business is inseverable from the business itself: Geraghty v Minter (1979) 142 CLR 177, at 193; Hepples v Federal Commissioner of Taxation (1992) 173 CLR 492, at 542; Federal Commissioner of Taxation v Murry (1998) 193 CLR 605, paras.23 and 30. I do not see why the term "lease" should not be applied to an agreement the subject matter of which is a business rather than a corporeal or incorporeal hereditament if all the essential hallmarks of a lease are to be found in that agreement. The essential hallmarks are well known: the lessee is granted exclusive possession of the subject property for a term certain or capable of being made certain; the lessee pays rent during the term and at its expiration is required to redeliver possession of the property to the lessor. 9 So, in the present case what Mr and Mrs Harrington claim as "a lease of the nursing home business" would have to be an agreement whereby the "lessors", i.e. Mr and Mrs Harrington, grant to the "lessee", i.e. Harrington Services, the exclusive possession of all that bundle of rights and interests called "the nursing home business" for a term certain or capable of being made certain by the giving of notice, the "lessee" during the term of "the lease" being entitled to retain the profits of the business while paying a "rent" to the "lessors", and the "lessors" having during that time a "reversionary interest" in the business. 10 The "bundle of rights and interests" which constituted the nursing home business, and of which Mr and Mrs Harrington would have to grant exclusive possession and enjoyment to Harrington Services, would have to include: possession of the Sydney Street land and the improvements thereon, use of the name "Trentham", use of all chattels, fixtures, fitting, plant and equipment owned by Mr and Mrs Harrington and used in the conduct of the nursing home business and, most importantly, the goodwill of the nursing home business. Was such an agreement made? Whether the nursing home business was leased

11 Mrs Harrington is a Registered Nurse. From June 1973 onwards she and Mr Harrington worked as managers in the private nursing home business conducted at Trentham. That business was owned by a company called Trentham Nursing Home Pty Ltd, which also owned the land in Sydney Street, Willoughby on which the nursing home business was conducted. Trentham Nursing Home Pty Ltd was controlled by a Mr and Mrs Carter. 12 Mr and Mrs Harrington say that in late June 1980 they made an oral agreement with Mr and Mrs Carter that they would buy from Trentham Nursing Home Pty Ltd the Sydney Street land together with the nursing home business conducted thereon and all plant, fittings, fixtures, stock and equipment of that business. They say that pursuant to that oral agreement they went into possession of the land and the nursing home business on 1 July 1980. There is in evidence an application for the transfer from Trentham Nursing Home Pty Ltd to Mr and Mrs Harrington of a Nursing Home Licence under the Private Hospitals Act, 1908 (NSW) dated 27 June 1980. 13 Disputes arose soon afterwards between the Harringtons and the Carters, and proceedings were commenced to enforce the oral agreement. The disputes were resolved and on 17 September 1981 Trentham Nursing Home Pty Ltd as vendor and Mr and Mrs Harrington as purchasers entered into a Contract for Sale of the Sydney Street land in the form which was then approved by the Law Society and the Real Institute of New South Wales. The total purchase price payable under the Contract was $385,000. 14 Special Condition 41 of the Contract provided as follows: "41. Included in the sale is the business of a nursing home previously carried on by the Vendor at 71 Sydney Street, Willoughby and all the Vendor's right title and interest in the same together with the goodwill of the said business and all plant fixtures fittings and chattels used by the Vendor in connection therewith as are now in the possession of the Purchasers, free from all encumbrances, charges and liens together with all stock in trade of the said business without additional consideration." 15 Special Condition 42 contained an acknowledgement by Mr and Mrs Harrington that they would be responsible for holiday pay and long service leave due to any employee of Trentham Nursing Home Pty Ltd whether occurring before or after 30 June 1980. By Special Condition 43, Mr and Mrs Harrington agreed to indemnify Trentham Nursing Home Pty Ltd against all claims arising out of or in connection with the nursing home business on and from 1 July 1980. By Special Condition 44 it was provided that Trentham Nursing Home Pty Ltd would be responsible for all debts incurred in respect of the nursing home business up to 30 June 1980, and by Special Condition 45 it was provided that Mr and Mrs Harrington would be entitled to the takings and profits of the nursing home business from 1 July 1980 onwards. 16 By Special Condition 39, Mr and Mrs Harrington agreed to charge, inter alia, the Nursing Home Licence for Trentham and the stock, plant and equipment therein as at the date of the Contract as security for payment to Trentham Nursing Home Pty Ltd of $40,000 left outstanding as the balance of the purchase price under the Contract. 17 The Contract for Sale was apparently completed on 20 November 1981, that being the date on the Memorandum of Transfer of the Sydney Street land. The Memorandum of Transfer shows as the consideration for the transfer of the land the sum of $385,000. 18 As at the date of the Contract for Sale, Trentham was "an approved nursing home" under s.40 AA of the National Health Act, 1953 (Cth). It had fifty beds available for qualified nursing home patients in respect of whom benefits were payable by the Commonwealth under that Act. 19 On 24 June 1982, Mr and Mrs Harrington executed a Memorandum of Lease under the Real Property Act, 1900 (NSW) under which they leased the Sydney Street land to Harrington Services for a term of one year commencing on 1 July 1981. By a further Memorandum of Lease, executed but undated, Mr and Mrs Harrington leased the Sydney Street land to Harrington Services for a term of six months expiring on 31 December 1982. An annexure to another lease has been adduced in evidence, which refers to a lease "dated ___ 1984" . The execution page of the lease has not been produced but I am prepared to infer that a third lease was executed some time in 1984 since the rent specified in the annexure seems to have been paid thereafter by Harrington Services. Clause 11 of that annexure provided for a rent of $30,000 per half year and for a holding-over at the expiration of the term, upon the same terms and conditions except that rent would be paid monthly in such amounts as the parties might agree. 20 No further memorandum of lease seems to have been executed. It is not in dispute, however, that Harrington Services has continued to occupy the Sydney Street land under the holding-over clause in the lease and that it has paid rent to Mr and Mrs Harrington during its occupation. 21 None of the Memoranda of Lease in evidence contains any reference to the nursing home business conducted at Trentham. The covenants in the lease on the part of the lessee may be described as standard-form 'boiler-plate' covenants. 22 Mrs Harrington clearly took the leading role in the management of Mr and Mrs Harrington's business affairs. She gave evidence that prior to a meeting with Mrs Carter at which the oral agreement for the purchase of Trentham and the nursing home business was made, she had a meeting with her accountant, Mr Byron, in his office. Mr Harrington was also present. Mrs Harrington said that Mr Byron gave them advice that they should own everything, that is, the land and the business to be purchased, and that Harrington Services should own nothing. She said that Mr Byron advised that the land, the nursing home business and its plant and equipment should all be leased by them to Harrington Services, and that Harrington Services should run the business. 23 Mrs Harrington said that she and Mr Harrington accepted Mr Byron's advice, that the advice "was finalised later on" , i.e. implemented, and that she and Mr Harrington never afterwards departed from it. Mrs Harrington said that it was her understanding at all times after the purchase of Trentham and the nursing home business that both the land and the business continued to be owned by herself and her husband and was leased by them to Harrington Services, in accordance with the advice given to them by Mr Byron. 24 Mr Harrington gave evidence to the same effect. Mr Byron himself was not called by either party, although the evidence suggests that he is still in practice. 25 There was no evidence given as to any further detail in the discussions between Mr and Mrs Harrington and Mr Byron. In particular, there was no evidence as to the precise content of the business to be leased. However, bearing in mind that the discussions are said to have taken place before the agreement for the purchase of Trentham and its business was concluded with Mr and Mrs Carter, I would infer that, if the discussions did in fact occur, the parties intended that everything which was to be purchased by Mr and Mrs Harrington from Trentham Nursing Home Pty Ltd, as described in the Contract for Sale which later came into existence, was to be the subject of the lease to Harrington Services. In so far as the business to be leased was concerned, its description would be as eventually set out in Special Condition 41 of the Contract for Sale: see paragraph 14. 26 Mr Wheelhouse, who appears for the Defendants, submitted that the Court should find that the nursing home business was owned by Harrington Services, not leased by it, for the following reasons:

a) there is no written record of such a lease or of its terms. If there were such a lease, one would have expected to find some reference to it in the Memorandum of Lease of the Sydney Street land which the parties executed in 1982, but there is no such reference;

b) a letter dated 6 August 1982 from Mr Byron to Mr O'Shea, a consultant retained by Mr and Mrs Harrington and Harrington Services for many years, gave information to Mr O'Shea to assist him in preparing an application under the National Health Act . The letter contained the statement: "Ownership of the business commenced on the 1st July, 1980. The business is operated by Harrington Services Pty Limited as Trustee for the Harrington Family Trust, however, the freehold property at 71 Sydney Street, Willoughby is owned by Kenneth & Jacqueline Harrington."

The letter contains no statement to the effect that the nursing home business was leased to Harrington Services;

c) the 30 June 1985 profit and loss statement of the Harrington Family Trust, of which Harrington Services was the Trustee, shows as "rent" for the 1984 and 1985 years the sum of $60,000 which was the amount of rent fixed by the lease apparently executed in 1984, to which I have referred above. The profit and loss statement does not show any separate expenditure for rent or lease payments under a lease of the nursing home business;

d) on a fairly regular basis from 1981 onwards Harrington Services submitted applications to the Commonwealth for variations of approved fees payable to Harrington Services under the National Health Act . The applications were signed by Mrs Harrington although they were prepared by Mr O'Shea from information supplied to him by Mrs Harrington. The applications are required to list expenditure incurred in the nursing home business. In the application made in respect of the 1983/84 year, under a section headed "Premises" - "annual monthly rent at 30 June 1984" - there appears the sum of $5,000, suggesting that $60,000 per annum which was fixed by the lease executed apparently in 1984 was rent for the land only and contained no component in respect of the alleged lease of the business;

e) in many of the various application forms under the National Health Act submitted to the Commonwealth in respect of Trentham, the name of Harrington Services was inserted in the space provided for details of "The proprietor" and Harrington Services was otherwise described as "The proprietor" in those forms. By s.4(1) of the National Health Act "proprietor" means "in relation to [a private] nursing home - the owner of the business or undertaking carried on at the nursing home" . The description of Harrington Services as "proprietor" in National Health Act forms signed by Mrs Harrington or Mr Harrington should be taken as an admission by them that Harrington Services was the owner of the nursing home business, not the lessee;

f) as at May 1993, the licensees of Trentham under the NSW Nursing Homes Act, 1988 were Mr and Mrs Harrington. Pursuant to an application dated 26 May 1993, Mr and Mrs Harrington transferred the licence under that Act to Harrington Services;

g) in a letter dated 26 December 1996, Super Business Loans Pty Ltd offered a loan of $1.6M to Harrington Services "as Trustee for the Harrington Family Trust" . The offer required the loan to be secured by a first mortgage over the Sydney Street land and over another property owned by Mr and Mrs Harrington, who were guarantors, by an assignment of the Nursing Home Licence for Trentham and by a fixed and floating charge over Harrington Services "as Trustee for the Harrington Family Trust" . There is no reference in the offer to Harrington Services being the lessee of the nursing home business, indicating at the least an implied representation by Mr and Mrs Harrington that Harrington Services was the owner of the business;

h) the evidence of Mr O'Shea was that he could not recall being advised that Harrington Services had leased the nursing home business; he said that he was instructed that Harrington Services owned the business;

i) the failure of Mr and Mrs Harrington to call Mr Byron as a witness or to explain his absence should lead to the inference that his evidence would not have assisted their case;

j) the fact that Harrington Services commenced to operate the business on 1 July 1980 but the Contract for the sale of the Sydney Street land and the nursing home business was entered into on 17 September 1981 should lead to the inference that there was no sale of the nursing home business by Trentham Nursing Home Pty Ltd to Mr and Mrs Harrington at all; rather, what happened was merely that Trentham Nursing Home Pty Ltd ceased to operate a nursing home business on 30 June 1980 and Harrington Services commenced to operate a nursing home business on 1 July 1980. 27 Despite these arguments I am satisfied that:

a) at all times since 1 July 1980 the nursing home business conducted at Trentham has been owned by Mr and Mrs Harrington and leased by them to Harrington Services;

c) the oral part was constituted by the discussions between Mr and Mrs Harrington, in their personal capacities, and as directors of Harrington Services, in the presence of Mr Byron prior to 1 July 1980 in which discussions they agreed to follow his advice that both the Sydney Street land and the nursing home business should be owned by them and leased to Harrington Services;

d) the written part of the agreement was constituted by the terms of the Memoranda of Lease executed by the parties;

e) the oral part of the lease related to all the subject matter of the lease other than the land, while the written part related to the land itself;

f) the subject matter of the lease was the nursing home business as described in Special Condition 41 of the Contract for Sale: see para.14;

g) one of the assets of this business was the right to exclusive possession of the nursing home premises at Trentham, which premises were to be leased for a time commensurate with the lease of the business itself;

h) the rent payable under the lease was not apportioned between rent for the land and rent for the other assets of the business.

My reasons for these findings are as follows. 28 First, I accept as truthful the evidence of Mr and Mrs Harrington as to the advice given to them by Mr Byron shortly before 1 July 1980. I accept their evidence that they accepted that advice, acted upon it and did not thereafter depart from it. Despite skilful cross examination, both Mr and Mrs Harrington remained unshaken in this evidence. Notwithstanding the unexplained absence from the witness box of Mr Byron, the firm evidence of Mr and Mrs Harrington, coupled with the corroborating circumstances to which I refer below, convince me that their account should be accepted. 29 Second, the Contract for Sale executed by the parties makes plain that both sides to the transaction were fully aware that the Sydney Street land and the nursing home business were two distinct assets and that both assets were included in the sale to Mr and Mrs Harrington, although the consideration was not apportioned between those assets. I cannot accept the submission of the Defendants that what happened was merely that Trentham Nursing Home Pty Ltd ceased conducting its nursing home business on 30 June 1980 and Harrington Services commenced to conduct a similar business on the following day. The submission is contrary to the express and careful terms of the Contract for Sale, and is contrary to commercial common sense. Trentham Nursing Home Pty Ltd clearly recognised that its business, as distinct from the land, had a value, as evidenced by the fact that the Nursing Home Licence, inter alia, was charged by Mr and Mrs Harrington pursuant to the Contract for Sale as security for the balance of the purchase price left outstanding to the vendor on completion. 30 Third, it is clear not only from the terms of the Contract itself but from the Transfer of the Nursing Home Licence dated 27 June 1980 that the nursing home business was sold to Mr and Mrs Harrington, not to Harrington Services. 31 Fourth, there is no indication whatsoever in the accounts of the Harrington Family Trust, of which Harrington Services was Trustee, that Harrington Services ever paid to Mr and Mrs Harrington any amount in consideration of a sale to Harrington Services of the goodwill or other assets of the nursing home business, or that Harrington Services itself treated the goodwill of the nursing home business as an asset of the Trust. Mr O'Shea, who was called by the Defendants, admitted in cross examination that he could not recall seeing anything in any of the balance sheets of the Trust which indicated to him that the Trust owned the nursing home business. 32 Fifth, Mr and Mrs Harrington personally, rather than Harrington Services, borrowed substantial money for the purpose of improving the nursing home business. Those borrowings would make no commercial sense if they had no further interest in the business itself. One such borrowing is evidenced by a letter from Westpac to Mr and Mrs Harrington dated 9 May 1988, approving a bill acceptance line of $780,000. Another such borrowing from Westpac was made in about June 1989 "to assist with working capital requirements" and "completion of renovations" to the nursing home. Further, the security given by Mr and Mrs Harrington for the Westpac borrowing shows that they regarded themselves as the owners of the business. The security included a "Registered Bill of Sale by K. & J.D. Harrington over goodwill, plant and equipment at Trentham Nursing Home" . A further borrowing by Mr and Mrs Harrington from Westpac was made in about September 1990. 33 Sixth, when Mr and Mrs Harrington applied to the National Australia Bank in March 1993 to refinance their borrowings from Westpac, they included in their application a statement of their personal financial position which showed amongst their assets: "Freehold and business of Trentham Nursing Home" at a market value of $2,150,000. This value is derived from a valuation made in September 1991 by Colliers Jardine, which valued "Trentham Nursing Home" not as real estate alone but as a going concern with fifty beds valued at $42,000 per bed. 34 Seventh, as at 1980 it was evidently recognised in the nursing home industry that there were financial advantages in a nursing home business being leased by the operator rather than owned. Mr O'Shea, who was until 1979 an officer in the Commonwealth Department of Health, Fees Determination Section, gave evidence that by 1979 there was an issue between the nursing home industry and the Department of Health as to the proper scale of fees to be allowed to operators of nursing homes who leased the premises from owners who were not at arm's length. 35 Mr O'Shea said that at that time he was aware of cases in which the facts were the same as those alleged in the present case by Mr and Mrs Harrington, namely, that certain proprietors owned the premises upon which a nursing home business was conducted and leased the premises and the nursing home business to an entity controlled by themselves. Mr O'Shea said that such a structure would be adopted "for reasons of taxation" . Although he did not state those reasons, they are not hard to divine. Leasing the land and the nursing home business itself to a controlled entity, such as the trustee of a family trust, would be a common way of income-splitting. Rather than Mr and Mrs Harrington deriving the whole of the assessable income from the nursing home business as sole proprietors, they could receive a fixed annual rent and the substantial profits of the business could be split amongst the discretionary beneficiaries of the Harrington Family Trust, who were then Mr and Mrs Harrington's two children. 36 Mrs Harrington said that Mr Byron advised her and Mr Harrington that the Sydney Street land and the nursing home business should be owned by them but leased to Harrington Services "for taxation purposes" . In my opinion, that evidence is inherently probable in the light of the evidence given by Mr O'Shea to which I have referred. 37 I now deal with the matters referred to in paragraph 26 and urged by Mr Wheelhouse as indicating that the nursing home business was not leased to Harrington Services. 38 As to paragraph 26(a): the absence of express reference in the Memoranda of Lease executed by the parties to the business as well as the premises is not surprising. If premises are exclusively used and extensively fitted out for the carrying on of an established, specialised kind of business such as that of an hotel or motel, then it may be necessarily implicit in a sale or mortgage of the premises that the goodwill of the business conducted therein is being sold or mortgaged as well, even if there is no explicit term to that effect in the contract or mortgage: see e.g. Ex parte Punnett; in Re Kitchin (1880) 16 Ch D 226, at 233; Cooper v Metropolitan Board of Works (1883) 25 Ch D 472, at 479-480; Re Millar; Burns v ES&A Bank Ltd (1952) 16 ABC 49; Federal Commissioner of Taxation v Murry at 618. There is no reason why that proposition cannot apply equally to the lease of such premises. 39 In the present case, it would have been commercially absurd to have leased the nursing home premises to Harrington Services and not the nursing home business which was conducted therein. What could Harrington Services do with premises fitted out as a nursing home without being able to conduct a nursing home business, and what could Mr and Mrs Harrington as owners of the business do without the premises in which to conduct the business? In my view, it was necessarily implicit in the lease of the premises to Harrington Services that the nursing home business and its goodwill was included in the lease. Those who drew up the lease may very well have thought likewise, particularly in view of the fact that under s.40 AA (1) of the National Health Act as it was in 1980, approval for the purposes of subsidy payments attached to the premises in which the nursing home business was conducted. 40 As to paragraph 26(b): the absence of reference to a lease of the nursing home business in Mr Byron's letter of 6 August 1982 to Mr O'Shea is not surprising. The question of whether the nursing home business was owned or leased by Harrington Services was not material to Mr O'Shea's functions, as discussed below. Mr Byron stated in the letter: "… in view of the relationship between the [Harrington Family] Trust and Mr and Mrs Harrington, as referred to above, we have prepared this information on the basis that they are the one party."

This statement supports the inference that Mr Byron generally did not see a necessity for undue formality in documenting the relationship between Mr and Mrs Harrington and Harrington Services. I do not think that this point has any substantial weight. 41 As to paragraph 26(c): that the leases between the parties, the profit and loss accounts of the Harrington Family Trust, and the applications to the Commonwealth for fee variations under the National Health Act do not separately apportion rent for the premises and rent for the business is explicable by the considerations to which I have referred in the preceding two paragraphs. I do not think that this point has any substantial weight. 42 As to paragraphs 26(d) and (e): the point most strongly urged by Mr Wheelhouse was that in many application forms submitted to the Commonwealth under the National Health Act Harrington Services is described as "the proprietor" which, by definition in the National Health Act , means the owner of the business carried on at the nursing home. Mrs Harrington resolutely asserted during her cross examination that she was not conscious of the statutory definition when she signed the forms. She said that the forms had been prepared by Mr O'Shea and that when she signed them she herself did not give particular attention to the distinction between an owner of the business and a lessee of the business. She said that if the description of Harrington Services in the forms as "the proprietor" indicated that it owned the business, then that was a mistake for which Mr O'Shea was mainly responsible. 43 Mrs Harrington's evidence was substantially corroborated by Mr O'Shea in his cross examination. He said that he did not recall seeing the Contract for Sale of Trentham and the supporting documentation which made it clear that Mr and Mrs Harrington had purchased the goodwill of the nursing home business as well as the Sydney Street land. He could not say whether he had ever been told by Mr and Mrs Harrington that they had transferred ownership of the nursing home business to Harrington Services. 44 Mr O'Shea said, in effect, that his own function was confined to preparing applications to the Commonwealth under the National Health Act and it did not particularly matter to him for that purpose whether the nursing home business was owned by Harrington Services or leased by it. He gave this evidence: " Q: Am I correct in understanding that in most, if not all, cases where you had to give some information about a proprietor in a form under the National Health Act, it would not have made any difference for the purposes of that application if the proprietor, so described, had in fact been a lessee of the business rather than the owner? A: And in terms of the Act, no, it wouldn't.

Q: So there would have been no purpose in making a distinction between the lessee of a business and owner of a business? A: No, except on some of the forms it did ask were the premises leased and, then, in that case, you would fill out, you would answer the question as asked.

Q: Of course, that relates to the premises, namely, the real estate? A: That's correct.

Q: But apart from that circumstance, can you think of any other circumstance in any of the forms that were required to be filled in which required a distinction to be drawn, for the purpose of the form, between an entity that owned the nursing home business as distinct from one that leased it? A: No." 45 In my view, Mr O'Shea's evidence establishes that no weight can be given to the fact that Harrington Services was described as "the proprietor" of the nursing home business at Trentham in various application forms and in correspondence with the Commonwealth. The definition of "the proprietor" in the National Health Act was of no particular consequence to Mr O'Shea when he was completing the forms for Mrs Harrington to sign. I accept Mrs Harrington's evidence that it was of no consequence to her and that she signed the forms prepared by Mr O'Shea believing that they contained accurate information. 46 As to paragraph 26(f): it was put to Mrs Harrington that in May 1983 she and Mr Harrington transferred the licence in respect of Trentham under the NSW Nursing Homes Act to Harrington Services because that was a requirement of the National Australia Bank, to which Mr and Mrs Harrington and Harrington Services had applied for substantial finance. Mrs Harrington steadfastly denied the suggestion, saying that she believed that a change in the NSW legislation required licences under the Nursing Homes Act to be held by corporations rather than individuals, and that the transfer was effected only for that reason. 47 Mrs Harrington's evidence was corroborated by Mr O'Shea, who said that it appeared to him that the transfer of the licence to Harrington Services was simply for the purposes of meeting the amended requirements of the Nursing Homes Act . 48 While a licence under the Nursing Homes Act is required in order to conduct a nursing home business, it is not the only requirement nor does it constitute or evidence "title" to the business itself. In the light of all of the other evidence to which I have referred, I do not regard the transfer of the licence under the Nursing Homes Act to Harrington Services as evidencing a change in the ownership of the nursing home business at Trentham. 49 As to paragraph 26(g): there is no warranty or representation by Mr and Mrs Harrington or Harrington Services in the documentation for the loan from Super Business Loans Pty Ltd that the nursing home business at Trentham is an asset of the Harrington Family Trust. The terms of the documentation throw no light on the issue at all. 50 As to paragraph 26(h): Mr O'Shea's affidavit evidence that he was instructed that Harrington Services owned the nursing home business was shown in cross examination to be merely an assumption on his part. He could not recall any express instructions from Mr or Mrs Harrington as to the ownership of the nursing home business. His assumption was derived from the fact that he himself completed various forms and applications under the National Health Act in which he inserted Harrington Services as "the proprietor" and he believed that the Harringtons' signatures on these forms constituted instructions to him that Harrington Services was "the proprietor" of the business, as that term is defined in the National Health Act . But, as Mr O'Shea himself said, he was of the view that it would not have made any difference for the purposes of the forms which he was filling in or for the purposes of the National Health Act whether "the proprietor" of Trentham was the owner of the nursing home business or the lessee: see paragraph 44. He also gave this evidence: " Q: I also put to you that Mrs Harrington told you that the company Harrington Services leased the property and the business? A: I don't know that I would have necessarily made that distinction in that my role was to make application to the Department on behalf of the proprietor or the approved provider. The area I would have been concerned about would have had to do with those, not so much who leased the business or whatever. It wouldn't have been an area I would have been concerned about as part of my work.

Q: I also put to you that Mrs Harrington told you that she and her husband Kenneth Harrington owned everything, the property and the business? A: That may have been the case."

I cannot give any weight to Mr O'Shea's affidavit evidence on this point. 51 I have already dealt with the points raised in paragraph 26(i) and (j) in the course of my earlier reasons. The parties' submissions as to subsidy rights

52 The submissions of Mr Monotti, who appears for Mr and Mrs Harrington, may be summarised thus:

• the goodwill of the business which was leased to Harrington Services included the subsidy rights under the National Health Act ;

• the different subsidy rights which came into effect under the Aged Care Act were still sufficiently attached to the conduct of the leased business so that they were part of the goodwill of that business;

• upon termination of the lease of the business, Harrington Services was obliged to surrender or re-transfer to Mr and Mrs Harrington all of the assets of the leased business, including the goodwill and its various components;

• the failure of Harrington Services, by its liquidators, to surrender or re-transfer to Mr and Mrs Harrington that part of the leased goodwill which comprised the subsidy rights under the Aged Care Act was a breach of the terms of the lease entitling them to damages. 53 The submissions of Mr Wheelhouse on behalf of the Defendants may be summarised thus:

• even if there was a lease of the nursing home business to Harrington Services, the ownership of subsidy rights under the Aged Care Act is determined by the provisions of that Act and by the provisions of the transitional Act, the Aged Care (Consequential Provisions) Act 1997 (Cth) ("the CP Act" );

• the provision of the Aged Care Act and the CP Act make it clear that the subsidy rights under the Aged Care Act are to belong absolutely to Harrington Services because Harrington Services, and not Mr and Mrs Harrington, was the only entity qualified to receive those rights. Goodwill of the nursing home business

54 For well over a hundred years the Courts have found great difficulty in formulating a universally applicable definition of the concept of goodwill. In Federal Commissioner of Taxation v Murry , at para.12, the majority Judges said: "One reason for this difficulty is that goodwill is really a quality or attribute derived from other assets of the business: cf Slater, 'The Nature of Goodwill' , Australian Tax Review, vol 24 (1995) 31. Its existence depends upon proof that the business generates and is likely to continue to generate earnings from the use of the identifiable assets, locations, people, efficiencies, systems, processes and techniques of the business. As Dixon CJ, Williams, Fullagar and Kitto JJ pointed out in Box v Federal Commissioner of Taxation ((1952) 86 CLR 387 at 397), '[g]oodwill includes whatever adds value to a business, and different businesses derive their value from different considerations' . Another reason is that courts have been called on to define and identify goodwill in greatly differing contexts. In some cases, the nature of goodwill as property may be the focus of the legal inquiry. In other cases, the value of the goodwill of a business may be the focus of the inquiry. And in still other cases, identifying the sources or elements of goodwill may be the focus of the inquiry. It is unsurprising that in these varied situations courts have defined goodwill in ways that, although appropriate enough in one situation, are inadequate in other situations." 55 A little further on (at para.15), the majority cited with approval the very broad definition of goodwill given by Wood V-C in Churton v Douglas (1859) Johns 174, at 188, [70 ER 385 at 391]: "… every advantage - every positive advantage … that has been acquired by the old firm in carrying on its business, whether connected with the premises in which the business was previously carried on, or with the name of the late firm, or with any other matter carrying with it the benefit of the business " [emphasis added]. 56 The Court identified the goodwill of a business as "… the product of combining and using the tangible, intangible and human assets of a business for such purposes and in such ways that custom is drawn to it. … It is therefore more accurate to refer to goodwill as having sources than it is to refer to it as being composed of elements. … Many of the sources of goodwill are not themselves property. Nor are they assets for accounting purposes" : paras. 24, 25. Examples of sources of goodwill include manufacturing and distribution techniques, the efficient use of assets, superior management policies and good industrial relations: ibid. Clearly, therefore, sources of goodwill can include those things which do not in themselves give rise to a legally enforceable right, but which nevertheless add value: for example, a qualification for receipt of discretionary benefits under a continuing subsidy scheme. 57 In the present case, I am in no doubt that the subsidy entitlements under the National Health Act in respect of the fifty beds at Trentham were a major source of the goodwill attributable to the nursing home business when it was purchased by Mr and Mrs Harrington and then leased to Harrington Services. The subsidy entitlements were not assets of the business in strict accounting terms, but they were an important factor in attracting custom to the business and thereby adding value to it. In order to explain the reason for this conclusion it will be necessary to give a brief account of the operation of the scheme established by the Commonwealth for subsidising the provision of nursing home care under the National Health Act . 58 An important feature of the scheme was the intent that a "private enterprise approach" to the provision of nursing home care should be adopted. The nursing home industry was to be carefully controlled and opportunities to participate in the scheme were to be limited. The intended result was that participation in the scheme would give assurance to a nursing home operator of a viable but not an excessive profit: see e.g. per Smithers J in Howells v Nagrad Nominees Pty Ltd (1982) 43 ALR 283, at 290-1. 59 When Mr and Mrs Harrington purchased Trentham in 1980, s.40 AA of the National Health Act relevantly provided: "(1) The proprietor of premises, being a nursing home, may apply, in the authorized form, for approval of the premises as an approved nursing home.

(2) Subject to this section, where the Permanent Head is satisfied that the premises in respect of which an application is made are a nursing home, the Permanent Head shall approve the premises as an approved nursing home for the purposes of this Act."

Section 41(1) provided that: "Upon the approval of premises as an approved nursing home, the Permanent Head [of the Department of Health] shall cause to be issued to the proprietor of the nursing home a certificate of approval …"

Section 47(1) provided that: "… there is payable to the proprietor of an approved nursing home" a specified daily benefit in respect of each relevant nursing home patient.

Section 4(1) of the Act defined "proprietor … in relation to a private nursing home [as] the owner of the business or undertaking carried on at the nursing home" . 60 It has been recognised that the definition of "proprietor" in s.4(1) does not apply to that word where it appears in s.40 AA (1). In that subsection "proprietor" clearly means "proprietor of the premises", not "owner of the business conducted therein": see Nagrad Nominees v Howells (1981) 38 ALR 145, at 147 per Northrop J; on appeal at 43 ALR 283, at 298 per Smithers J; North Adelaide Nursing Home Pty Ltd v Seely [2000] SASC 455 paras 9 to 14 per Wicks J. Nevertheless, s.40 AA (2) made it clear that an approval given to an application made under s.40 AA (1) attached to the premises, not to the nursing home business that was being conducted in the premises nor to the person who was, or would be, carrying on that business. However, the benefits actually payable under s.47(1) were to the "proprietor" as defined by s.4(1), i.e. the owner of the nursing home business carried on in the premises which had been approved pursuant to s.40 AA (1). The owner of the nursing home business might, or might not, be the owner of the premises. What was clear was that a person could not be paid benefits under s.47(1) unless he or she conducted a nursing home business in premises to which an approval under s.40 AA (1) attached. 61 Immediately before Mr and Mrs Harrington first leased the nursing home business to Harrington Services they were the proprietors both of approved premises under the National Health Act and of the nursing home business which had the benefit of that approval. Immediately before the lease was granted, the subsidies attaching to the fifty beds at Trentham could only have been paid to Mr and Mrs Harrington; after the lease was granted, the subsidies were paid to Harrington Services because Harrington Services was the "proprietor" of the business in the sense that it was the "owner", not of an absolute interest but of a limited interest in the business. 62 The word "owner" has long been recognised as somewhat chameleon-like, taking its meaning from the context and purpose of the legislation or instrument in which it appears: it can mean the person who has the whole of the legal and beneficial interest in property, or a person who has a lesser legal interest but is in sole and exclusive occupation and control of the property, such as a lessee or charterer under a charter party: see e.g. Chauntler v Robinson (1849) 4 Exch 163, at 169-170 [154 ER 1166] ; Horn v Thornborough (1849) 3 Exch 846, at 849 [154 ER 1087] ; Hughes v Sutherland (1881) 7 QB 160, at 164; McIlwraith McEacharn Ltd v Shell Co of Australia Ltd (1945) 70 CLR 175, at 194. 63 In the context of s.4(1) and s.47(1) of the National Health Act , the "proprietor" or "owner" of a nursing home business to whom subsidies are payable is clearly the person who has exclusive possession, control and management of the business, whether as absolute owner or as lessee. It would produce absurdity to construe s.4(1) and s.47(1) as requiring the Commonwealth to pay subsidies to a person who, although being the legal owner of the business, had no control of its operation at the time the subsidies were payable and had not actually provided any of the nursing home services in respect of which the subsidies were payable. 64 I do not think that there could be any dispute that the subsidy entitlements under the National Health Act were a very valuable source of the goodwill of the nursing home business which Mr and Mrs Harrington owned and then leased to Harrington Services. The entitlements were the fruits of participation in the Commonwealth's scheme to assure a viable profit to nursing home operators. Patients would be attracted to Trentham, as the Commonwealth must have intended, because they would not themselves have to bear the full cost of nursing home care, as they would have to do if they went to a nursing home which was not qualified to participate in the subsidy scheme. 65 When the Aged Care Act came into effect, the mechanics of the Commonwealth's subsidy scheme changed somewhat but the intent to foster a private enterprise approach to nursing home care did not. Participation in the subsidy scheme is still tightly regulated under the Aged Care Act and the entitlement to receive subsidies is obviously still a valuable source of the goodwill of a nursing home business. 66 The entitlement to participate in the subsidy scheme under the Aged Care Act is no longer dependent upon an approval which attaches to premises in which a nursing home business is conducted. The entitlement is now dependent upon a number of factors. First, the recipient of subsidies must be an "approved provider" of "residential care": s.7-1. Second, "places" (i.e. subsidy rights for patients) must have been allocated in respect of residential care which the "approved provider" is providing: s.11-1. Third, the recipient of the residential care service (i.e. the patient) must be approved to receive that care: s.20-1. 67 In order to become an "approved provider" a person must be a corporation (s.8-1(1)(b)) and must satisfy the Secretary of the Department that it is "suitable": s.8-1(1)(c). In deciding whether a corporation is "suitable", the Secretary must consider, inter alia, the applicant's experience in providing residential care and its previous record and performance in providing that care according to a number of specified criteria: s.8-3(1)(b)-(g). 68 Allocation of "places" can only be made to an "approved provider" (s.14-1(1)) and an "approved provider" is eligible to receive a subsidy only if the approved provider holds an allocation of places: s.42-1. Allocation of places must be made "in respect of a specified location" , "in respect of a particular aged care service" (e.g. residential care), and "any care provided in respect of the place, must be provided at that location and through that service" : s.14-5(3). 69 The effect of these provisions is that although subsidy entitlements in respect of nursing home care are not directly attached to premises, as they were under the National Health Act , they are indirectly attached to premises because the "approved provider" will receive the subsidies only if it has been allocated "places" in respect of "a specified location" at which nursing home care is provided. 70 In the case of Trentham, when the Aged Care Act came into effect Harrington Services received subsidies because:

• it was a corporation and it must have satisfied the Secretary of the Department, inter alia, that its prior experience and performance in providing nursing home care made it "suitable";

• it had been allocated fifty "places" in respect of the Trentham Nursing Home premises, being the place at which it had been, and would be, providing nursing home care. 71 It will be seen that Harrington Services could not have been granted status as an "approved provider" under the Aged Care Act but for its satisfactory record and performance as a provider of nursing home care at Trentham since 1980, nor could it have been allocated the fifty "places" but for its having had available to it the Trentham Nursing Home in which to conduct its business. 72 This is made even more apparent by the transitional legislation which implemented the changeover from the National Health Act to the Aged Care Act , namely, the Aged Care (Consequential Provisions) Act 1997 (Cth) (" CP Act "). Section 7 of that Act provides, in so far as is presently relevant, that a person who was "an approved operator" (as defined in the National Health Act ) or "the proprietor" (within the meaning of the National Health Act ) of an "approved nursing home" immediately before commencement of the Aged Care Act is taken to be an "approved provider" under the Aged Care Act if a subsidy was payable to that person under the National Health Act . 73 In the present case, Harrington Services is taken to be an "approved provider" under s.7 CP Act because, by s.4(1) of the National Health Act , it was the "proprietor" (i.e. the "owner" in the sense of "lessee") of "an approved nursing home" (i.e. the business conducted in Trentham) and subsidies under the National Health Act were payable to it. 74 As I have noted, Mr Wheelhouse relies on s.7(1) CP Act for the proposition that that Act and the Aged Care Act determine who is entitled to the fifty places allocated at Trentham: only Harrington Services, he says, fulfils, and could have fulfilled, the requirements for entitlement so that Harrington Services must be the owner of the allocated places and must be entitled to transfer them by sale in accordance with the transfer procedure provided by Division 16 of the Aged Care Act . I am unable to accept this submission, for the following reasons. 75 Section 7 CP Act and the Aged Care Act , particularly s.14-1 and s.42-1, regulate who is entitled to receive an allocation of places and subsidy payments consequent upon the allocation of places. Nothing in those sections or in the Acts generally stipulates that the recipient of "allocated places" and the resultant subsidies must be taken to hold those benefits and rights absolutely and without qualification as outright owner. So, for example, the CP Act and the Aged Care Act did not, and could not, discharge Harrington Services, as trustee of the Trentham Nursing Home business, from its trusteeship of the fifty places allocated in respect of Trentham under the Aged Care Act so as to entitle Harrington Services to deal with those places for its own benefit. Harrington Services' entitlement to receipt of the subsidies and to deal with the places which it had been allocated would still have been subject to its duties as trustee because it received those places and those subsidies in that capacity. 76 So also, Harrington Services received its allocation of places under the Aged Care Act and the subsidies payable in consequence of those allocations because it had been the "proprietor" (i.e. "owner" in the sense of "lessee") of the nursing home business under the National Health Act . The allocation of places under the Aged Care Act was, clearly enough, a source of the goodwill of that nursing home business in the same way that approval of the nursing home premises under the Nursing Home Act had been a source of the goodwill of the business. The nursing home business at Trentham was the same on the day after the Aged Care Act came into effect as it had been on the day before. One doubts whether the patients at Trentham and prospective patients seeking nursing home care would have had the slightest inkling of, or interest in, the fact that on and from 1 October 1997 a new set of regulations governing entitlement to Commonwealth subsidies for nursing home care came into effect. All they would have been interested in was whether or not Trentham would be able to provide subsidised care. 77 In my opinion, the fifty places allocated to Harrington Services in respect of Trentham under the Aged Care Act were a source of the goodwill of an existing business, received by Harrington Services in substitution for the previous equivalent source of goodwill under the National Health Act , namely the approval of the premises under s.40 AA (1). The allocations were, therefore, simply part of the leased goodwill of the business. 78 Another way of analysing the rights of the parties is by analogy with the rights and duties of a lessor and a lessee of corporeal and incorporeal hereditaments under the doctrine of accretion. A lessee is required to deliver up to the lessor at the expiry of the term not only the property as demised, but also any accretions to the property which have occurred after the commencement of the lease, whether by reason of the lessee's encroachment upon adjoining waste land or otherwise. This is so whether or not the lessee has undertaken that obligation in the lease. What is determinative is that the lessee has gained the opportunity of deriving the benefit of the accretion by reason of its proximity to the demised land. Of course, this obligation affects only the rights of the lessor and the lessee inter se, not the rights of third parties: see Perrott (J.F.) & Co Ltd v Cohen [1951] 1 KB 705; Kingsmill v Millard (1855) 11 Exch 313 [156 ER 849]; Lord Lisburne v Davies (1866) LR 1 CP 259. 79 In the present case, it may be said that Harrington Services derived the fifty places at Trentham allocated to it under the Aged Care Act only because it was in possession of the leased business and that the opportunity to acquire the allocated places was so proximate to the "demised property" that those places should be regarded as accretions to that property, to be surrendered to the lessor at the expiry of the lease. 80 Whether one regards the allocated places as a source of the goodwill of the leased business acquired in substitution for the equivalent previous source, or as an accretion to the goodwill of the business, in my opinion it is clear that the places could not be disposed of by Harrington Services for its own use and benefit absolutely. They were assets of the leased business which had to be transferred back to the lessors at the expiry of the term of the lease. 81 That obligation is not implied in the lease of the business in order to give it business efficacy and otherwise because the implication satisfies the tests in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, at 283. The obligation is one implied by law because it is an inherent legal incident of every lease: Liverpool City Council v Irwin [1977] AC 239; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, at 345-6; Henderson v Squire (1869) LR 4 QB 170; Cumberland Consolidated Holdings Ltd v Ireland [1946] 1 KB 264. 82 For these reasons, I conclude that the fifty places allocated to Harrington Services under the Aged Care Act were not assets of Harrington Services available to be sold by its liquidators for the benefit of its creditors. 83 In the light of this conclusion, the alternative bases for relief advanced by the Plaintiffs do not call for consideration. Orders

84 The Plaintiffs are entitled to declarations and orders in accordance with paragraphs (a) to (e) of the prayers for relief in the Statement of Claim. 85 I will stand the proceedings over for a short time to enable the Plaintiffs to bring in Short Minutes of Order reflecting these reasons, for argument as to any further or other relief which may be sought, and for argument as to costs. - oOo -

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