See also Adler v Upper Grosvenor Street Investment Ltd [1957] 1 WLR 227; International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] Ch 513.
31 Against this background, I turn to the interpretation of clause H.2. The excision of the postscript would make the clause simpler, and remove the problems which are now faced. However, I do not accede to the submission that the postscript can or ought be treated in this way. There is a duty to give to this commercial document meaning and operation, unless this is "utterly impossible": Brown v Gould [1972] Ch 53 at 57; Hammond v Vam Ltd [1972] 2 NSWLR 16 at 18; Murphy v Wright (1992) NSWConv R par 55-652 at 59-733. As Barwick CJ said in Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 at 436-7:
"But a contract of which there can be more than one possible meaning or which when construed can produce in its application more than one result is not therefore void for uncertainty. As long as it is capable of a meaning, it will ultimately bear that meaning which the courts, or in an appropriate case, an arbitrator, decides is its proper construction: and the court or arbitrator will decide its application. The question becomes one of construction, of ascertaining the intention of the parties, and of applying it. Lord Tomlin's words in this connexion in Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503, at p 512 ought to be kept in mind. So long as the language employed by the parties, to use Lord Wright's words in Scammell (G) & Nephew Ltd v Ouston [1941] AC 251 is not 'so obscure and so incapable of any definite or precise meaning that the Court is unable to attribute to the parties any particular contractual intention', the contract cannot be held to be void or uncertain or meaningless. In the search for that intention, no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements. Thus will uncertainty of meaning, as distinct from absence of meaning or of intention, be resolved."
32 JDM says that a term that subletting, assignment, etc, should be permissible only with consent should be implied, so that the operation of s 133B(1) is then attracted. The relevant principle according to which such implication should be made is set out in the well known passage in the judgment of Mason J (as his Honour then was) in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347:
"The conditions necessary to ground the implication of a term were summarized by the majority in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20, at p 26: '(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.'"
33 In my view, clause H.2 should be construed as showing an intention of the parties to the sub lease that at least in some circumstances the consent of the lessor is required. I come to this conclusion as a result of the construction of the clause by the Court, rather than by the implication of a term. But the passage set out above correctly states the principle by which such a term might be implied, and I should, if that were necessary, hold that such a term was implied. By whichever route this solution be reached, the difficulty is whether the intention should be taken to be that all transfers and assignments require consent, or only sub leases, assignments, etc, to corporations. JDM presses for the first alternative. If there be any reason as to why consent should be required only in the case of corporations, it is perhaps to be derived from the notion that "$2 companies" are more common than $2 individuals, and this receives some support from the concern the clause shows for the obtaining of guarantees, some of which at least should be by natural persons, in the latter provisions of the postscript. On the other hand, it is put on behalf of JDM that at least some of the numbered conditions in the clause are more appropriate if they be regarded as part of a consent process, than if they are regarded simply as conditions which, if met, will give an absolute right to sublet, assign, etc. One condition which is pointed to is condition (ii), which requires the approval both of the lessor and of its solicitor. However, whilst this provision is slightly curious, it is plain in its terms that the approval required is only as to the form of the sub lease, assignment, etc. Even though the approval of the lessor itself, as well as of its solicitors is required, as is more usually the case, it seems to me that the approval spoken of clearly relates only to the form of the lease, and that refusal to grant the approval except by reference to matters of form rather than outside commercial considerations would not be valid: see Caney v Leith [1937] 2 All ER 532; Provost Developments Ltd v Collingwood Towers Ltd [1980] 2 NZLR 205 at 209; and see generally W D Duncan, Commercial Leases in Australia (3rd ed, 1998) 16 - 17; CCH NSW Conveyancing Law and Practice 220. It is also argued that some of the conditions may only be met after consideration by the lessor of the transaction, and that that indicates that they should be taken to be co-extensive with a process of consideration of consent. Thus, payment is required of the expenses of considering the suitability of the proposed subtenant, assignee, etc, and also payment of the legal expenses of the approval of the sub lease, assignment, etc. But, as Bryson J pointed out in Spintar Pty Ltd v Ranieri Nominees Pty Ltd 1 February 1991 SCNSW unreported in relation to similar provisions, the point of time at which preconditions must be met is not until the time of actual perfection of the assignment.
34 It was put to me that the subsequent conduct of the parties could and should be taken into account in construing the clause and I was referred to the decisions of the Court of Appeal in Hide & Skin Trading Pty Limited v Oceanic Meat Traders Limited (1990) 20 NSWLR 310; of Santow J in Spunwill Pty Limited v Bab Pty Limited (1994) 36 NSWLR 290; and of Bryson J in Sportsvision Australia Pty Limited v Tallglen Pty Limited (1998) 44 NSWLR 103. I do not need to choose between or attempt to rationalize the views expressed in those cases, because in my view, whatever the correct principle is taken to be, there is no course of conduct in the complicated circumstances of this case sufficiently clear to assist with the construction. I have not made any use of subsequent conduct in reaching the conclusion that I have.
35 What seems to me to be of importance in construing clause H.2 is its structure. It opens with a clear and absolute prohibition upon subletting, assignment, etc. The conditions (i) to (viii) are articulated to that absolute prohibition by the clear words "BUT the lessee may assign, sublet … if", and the statement of the conditions follows. The postscript appears thereafter, and opens with the words "Where the proposed assignee or transferee is a corporation …", and then follows the reference to a condition that shall apply if consent be granted.
36 In all the circumstances it is my view that the correct interpretation to be given to this troublesome clause is that there is an absolute prohibition upon assignment, subletting, etc; that an exception is provided to that absolute prohibition if conditions (i) to (viii) are met, in which case no question of consent arises; but that, after those conditions are met, if the subletting, assignment, etc is to a corporation, then there is a further requirement that the consent of the lessor be obtained and there are certain stipulations as to what may be required in that case. Section 133B(1)(a) attaches at that point the requirement that the consent stipulated for shall not be unreasonably withheld. But, as I have said, the occasion for consent does not arise if conditions (i) to (viii) be fulfilled; in that case the prohibition upon subletting, assignment, etc, ceases to prevail.
Further Questions in the Proceedings
37 The further questions that arise in the light of this interpretation of clause H.2 are as follows: