Mitchforce v Starkey and Anor

5 The lease provided an initial rental of $156,600 per annum, increased annually in an amount being the greater of either the Consumer Price Index ("the CPI") or 8%. The lease did not contain a provision for an annual review of the rental rate, merely a provision for the annual increase.

6 The anticipated housing and shopping centre developments did not eventuate and the economy went into recession. Having been in occupation of the Tavern for about 2 years, the respondents began having difficulties meeting the rental payments to the appellant in accordance with the lease. In order to alleviate this problem, the respondents approached the appellant to obtain rent relief in the form of a reduced rental rate. The appellant would not grant a reduction in rent, instead offering an arrangement whereby part of the rent payments would be deferred until the lease was 'terminated'.

7 Having had numerous attempts to sell their interest in the Tavern fail due to prospective purchasers having been 'put off' by the high rental rates, the respondents were forced to remain in occupation of the Tavern. The deferred rental payments continued to mount.

8 The respondents sought to exercise their option to renew the lease for a further 10-year period on 31 March 1999. The appellant refused to grant the option, claiming that the respondents had breached the lease due to the rental defaults and gave notice for the respondents to quit the premises.

9 The respondents were not aware that the appellant considered the arrangement for deferred rental a 'default' for the purposes of the lease arrangements entitling the appellant to refuse the exercise of the option.

10 The application for relief pursuant to s106 of the Act was filed on 25 June 1999.

11 On 28 July 1999 the respondents filed a notice of motion seeking to strike out the summons for relief for want of jurisdiction on the basis that the lease was not a contract or arrangement whereby work was performed in an industry.

12 In a lengthy and careful judgment, having heard the parties in full, Hungerford J dealt with both the substantive application for relief under s106 and the notice of motion seeking to dismiss the application for want of jurisdiction.

13 Having heard the evidence, his Honour made findings in the following terms (at [63]-[65]): 63 The picture which emerges from the whole of the evidence is, I think, demonstrably clear. Having been in the hotel industry for about 27 years and then financially secure in semi-retirement, the applicants had an interest in acquiring another hotel. And so it was they acquired the Empire Bay Tavern from 1 May 1990 by way of an assignment of the lease from Sherwood Trading, with the consent of the respondent as lessor and licensee of the hotel, for the amount of $650,000 in light of the generally understood position that a housing development and shopping centre complex were to be constructed in the area. The applicants considered the amount to be a fair price at the time; similarly, and although thought to be a bit on the high side, they accepted the then level of initial rent under the lease of $163,800 per annum ($156,000 for the hotel premises and $7,800 for the residential flat accommodation) with its annual adjustment by the greater of 8 per cent or Consumer Price Index increases. In that latter respect, the increase in the Index for the year 1989-90 was 8.1 per cent and that was in line with such increases during the 1980s. It was common ground that no representations were made to the applicants by the respondent as would affect their decision to obtain the Tavern. However, the housing development and shopping centre complex did not proceed and the economy started to decline. The Consumer Price Index dropped sharply. 64 At the time of the rent review in July 1992, the applicants found difficulty in meeting rental payments with lower than expected earnings from the hotel but with increased costs, including the annual 8 per cent rent increase. Although they sought a reduction, they were only successful in the respondent agreeing to defer the rent due under the lease on the basis that such deferred rent would be merely postponed. On the anniversary of the lease on 9 July 1993, the respondent again declined the applicants' request for a rental reduction but agreed to increase the rent by only 4 per cent, with the unpaid portion being postponed - the respondent advised at that time that "should you at any time terminate your lease for any reason the rent postponed will become due and payable forthwith". Further rent deferrals were allowed by the respondent during the balance of the term of the lease. The applicants always understood that the deferred rent would not be payable until they sold the business whereas Mr Mitchell and Mr Sutton for the respondent denied that understanding; the respondent took the position that the deferred rent was payable on demand, not limited to the termination of the lease and that, in any event, the non-payment of the deferred rent was a breach or default under the lease which entitled it to refuse the option exercised by the applicants for a further lease term as from 10 July 1999. Both Mr and Mrs Starkey said the respondent never advised them that the consequence of accepting the rent deferral arrangement would be the loss of the option right nor that the deferred rent could be demanded at any time prior to their sale of the business. 65 On this aspect of the rent deferral arrangement, I accept the evidence of the applicants in preference to that given for the respondent. The understanding as stated by Mr Starkey was consistently maintained by him and it was consistent too with the contents of the respondent's letter dated 12 July 1993 in stating that the deferred rent would become due and payable should the applicants terminate the lease. Also, Mrs Starkey's unchallenged evidence was to the same effect. I find, therefore, that the respondent agreed in July 1992 and at each succeeding annual rental review to defer part of the rent due under the lease with such deferred rent becoming due and payable on the sale by the applicants of the hotel business. The arrangement so made, I find, was not a breach or non-observance of the lease terms by the applicants in that it constituted a waiver by the respondent of the obligation on the applicants to pay on the due date the full amount of rent under the lease. There was, in my view, no basis upon which the respondent could properly decline, as it purported to do on 1 April 1999, to grant the applicants a further lease term of 10 years as from 10 July 1999. Indeed, the failure to vary the lease to reflect the rent deferral arrangement was unreasonably prejudicial to the interests of the applicants, particularly having in mind their continued operation of the hotel with the increasing debt of accrued rent plus interest. That was unfair to them as they endeavoured, to the knowledge of the respondent, to trade out of their financial difficulties. The prejudice so found became manifested by the respondent serving on 1 October 1997 a Notice of Default under the lease for payment of the accrued rent plus interest thereon.

14 His Honour then discussed the issue of 'unfairness' and made a finding as to unfairness within the contract between the parties. The discussion commenced as follows (at [67]): 67 There may be no doubt that the respondent was entitled to either sell or not sell the freehold in the Tavern. Equally, and this understandably was the position taken by Mr Mitchell in his evidence, the respondent was entitled not to allow the applicants a rental reduction because there existed a binding contract (the lease as assigned) made with the applicants which they should honour; if it were otherwise it may be said to be unfair. But, it seems to me, whilst those notions traditionally may have operated unaffected by law they are to be seen in a modern commercial context where protection against and relief from oppressive conditions have rightful recognition - in the industrial law sense, in my opinion, s 106 of the Industrial Relations Act in providing relief of avoidance or variation, together with an order for the payment of money, of work contracts found to be unfair, harsh or unconscionable, or against the public interest is but a statutory illustration.

15 His Honour then discussed what he described as a 'modern commercial context where protection against relief from oppressive conditions have rightful recognition'. His Honour referred, by way of analogy, to the judgments of Lord Diplock in Erven Warnink Besloten Vennootschap v J Townend & Sons (Hull) Ltd [1979] AC 731 at 742 - 743 and the Full Court of the Federal Court in Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129. His Honour referred to the 'seminal decision' of Sheldon J in Davies v General Transport Development Pty Ltd [1967] AR (NSW) 371 at 373 - 374, as to the inherent nature of the statutory predecessor of s106 of the Act (as was considered by the majority judgment of the Full Commission in Court Session in A & M Thompson Pty Ltd v Total Australia Ltd [1980] 2 NSWLR 1 at 12 - 14). His Honour then continued (at [70] - [71]): 70 I consider the approach followed in A & M Thompson v Total Australia to be particularly instructive for the case before me. The applicants here fully understood the agreement they made with the respondent for the assignment of the hotel lease and where the respondent made no fraudulent or misleading representations; but they did so by accepting the terms in whole of the existing lease from Sherwood Trading without any negotiation with the respondent of the rental level and its adjustment. When circumstances shortly changed, as to the proposed development of the area and, in particular, the state of the economy, the very basis and understanding on which the original lease was made were changed to the severe detriment of the applicants. Importantly, the lease was made at a time when the rent escalation of 8 per cent was consistent with the Consumer Price Index; that sharply changed so that the average increase in the Index over the 10-year term of the lease was 2.29 per cent per annum. Of course, the lease term, without any provision for a review, had nearly 9 years to run but the respondent would not countenance a rental reduction. The position of the applicants was, in my view, well demonstrated by the evidence of Mr Cooper and Mr Robertson that their endeavours to remedy the situation were unavailable due to the high level of rent and the annual adjustment provision - in a real sense, therefore, the relative position of the parties under the contract was weighted very much in favour of the respondent to the point where the applicants' viability in conducting the business was in peril. Even so, the respondent persisted in declining relief to them and, importantly, to the extent of refusing a further lease term in circumstances where the applicants were thereby denied the opportunity to trade out of their difficulties in an improved economic climate or, alternatively, sell their business and obtain some return of goodwill. 71 In the circumstances as they developed, I am satisfied the respondent exploited the position of advantage it had against the applicants in terms of the lease rental provisions. It also effectively appropriated for itself any benefits the applicants had to accumulated goodwill in the business, where the applicants had paid $650,000 for it, by denying them a further lease and, at the same time, itself benefiting from the admitted capital appreciation in the freehold of the premises. Those consequences of the respondent's conduct were exacerbated by it leading the applicants to understand that the deferred rent would not be payable until they sold their hotel business. In my view, the subject lease operated unfairly against the applicants and where its terms were not "equal" for both parties to the point where they were oppressive on the applicants. To use the words of Deane J in Municipal Officers' Association v Lancaster (54 FLR at 165) - "To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful". I conclude, therefore, that the lease as to the rental level and the adjustment thereof was in its terms and in its operation unfair and harsh; it was unconscionable, in my view, for the respondent not to have agreed to vary the lease so as to provide reasonable relief for the applicants in light of the then rental market for hotels.

16 The finding of unfairness having been made, his Honour then considered the jurisdictional argument put by the appellant. Having set out the submissions of the parties on the notice of motion, Hungerford J, in dismissing the notice of motion, stated (at [75] - [79]): 75 The necessary jurisdictional fact for a contract to be within s 106 so as to support the making of orders thereunder was that the contract be one whereby a person performs work in any industry: see Stevenson v Barham (1977) 136 CLR 190 at 201-202; Caltex Oil (Australia) Pty Ltd v Feenan [1981] 1 NSWLR 169 at 171, 173-174; and Production Spray Painting & Panel Beating v Newnham (27 NSWLR at 646, 650, 652-655; 37 IR at 47, 51, 52-56). The question of a lease coming within the scope of s 106, and of its statutory predecessors being s 88F of the Industrial Arbitration Act 1940 and s 275 of the Industrial Relations Act 1991, has been the subject of consideration by members of this Court from time-to-time. The approach of the Court of Appeal in Production Spray Painting & Panel Beating v Newnham in the passages earlier cited, and on which the respondent here relied, were to the effect that to come within the section a contract must directly, that is, under or pursuant to its terms, provide for the performance of work in an industry; the consequential performance of work was not enough. In other words, the section only applied to a contract which had as its purpose the performance of work in an industry and that must be the purpose of both parties. 76 In Jennings v Auto Plaza Ltd [1993] 46 IR 413, Cahill Dep CJ considered this question in relation to a lease of premises in a shopping complex the terms of which required the lessees to carry on business as a restaurant during lawful business hours. In finding the lease to be one whereby work was performed in an industry, and hence within the jurisdiction of s 275, his Honour said (at 421-422): In the present case, however, the contract is a lease between the parties of part of large shopping centre premises obviously at least intended by both parties to be used by the lessees for the conduct of a restaurant business. The lease prescribes a term of years (with provision for the exercise of an option of renewal), during which the provisions of the lease are to govern and bind the relationship of the parties: it thus postulates and requires an ongoing relationship. It imposes a restriction on the lessees as to the use of the premises. Except with consent the premises are not to be used otherwise than as a licensed restaurant and takeaway food outlet (cl II(15)). That restrictive provision is expressed in the negative and, of itself, does not require that the lessees shall use the premises for the carrying on of a business so described. To that negative provision is added another, in the first part of cl IV(ff), to the effect that the lessees "shall not occupy or permit the premises to be occupied or used outside the hours as are from time to time stipulated by law". The second part of that subclause, however, is expressed in positive terms. It requires the lessees to "keep the demised premises (Unit 11 of the Autoplaza Centre) open for business during normal trading hours for such business". Reference is also made to cl XI, which has already been set out in full, under which the lessees "shall be responsible for and shall attend to" the full fitout of the demised premises as a restaurant. In my view, the terms of the lease, and particularly those to which reference has been made, require the lessees to establish the demised premises in restaurant mode and to carry on therein a restaurant business during lawful trading hours. I also consider that the carrying on of such a business in accordance with that obligation necessarily requires and results in the performance of work in the restaurant industry by the lessees themselves and/or by other persons whom the lessees engage to work in the business. Furthermore, that work provides any necessary "industrial colour or flavour" which might be needed in order that s 275 should apply. The terms of the lease thereupon which his Honour relied were, as I read them, directly comparable with the terms of the lease in the present case. 77 Again, in Booth v Kritikos Developments , Schmidt J considered whether a contract for the sale of an hotel business and a contract for the lease of the premises was within the jurisdictional scope of s 275. After referring to Production Spray Painting & Panel Beating v Newnham and the terms of the contract concerned, her Honour said (59 IR at 303-304) : Unlike the situation in Production Spray Painting , the applicant here could not simply close the business up, that being a matter of no interest to the respondents. The continued operation of the hotel as a business was assured by the contractual obligations imposed on the applicant to ensure the performance of work in the business during the term of the lease. This was of real interest to the respondents, as was the performance of the renovation work which reflected the agreed reduction in the purchase price of the business. This arrangement involved not merely the sale of a business by an outgoing proprietor, but an ongoing relationship. Properly analysed, one of the purposes of the arrangement between the parties, namely what was sought to be achieved, was to ensure the performance of certain work in the business during the continuation of the parties' relationship under the lease. Another purpose was to ensure that the specified renovation work was carried out to the premises the subject of the lease.

In my view, the relationship between the applicants and the respondent here under the lease constituted an ongoing relationship with the clear purpose, on the facts, that the applicants would conduct the business of an hotel from the Tavern for the duration of the lease term and that necessarily contemplated the performance of work, including as to the maintenance of the premises in good order and repair. 78 Finally, I refer to the most recent judgments of this Court upholding power on this jurisdictional question concerning leases, similar to and consistent in effect with that followed in Jennings v Auto Plaza and in Booth v Kritikos Developments , namely, Kostakis v New World Oil & Developments Pty Ltd (unreported, Schmidt J, CT96/1157, 25 July 1997) and Australian Institute of Music Ltd v L M Investment Management Pty Ltd [2000] NSWIRComm 201. 79 In the present case, and although strictly speaking the applicants were not parties to the lease, they were parties to the deed of consent to assignment of lease dated 1 May 1990, to which both the respondent and Sherwood Trading were parties, and cl 4(b) of which represented an agreement between the applicants and the respondent that the applicants "will hereinafter duly perform and observe all terms conditions and covenants expressed or implied in the Lease and on the part of the [applicants] to be performed in the same manner as if the [applicants] had been a party to the Lease". In my view, that sub-clause directly and effectively incorporates in that deed the whole of the terms of the lease originally made between Sherwood Trading and the respondent so that the deed takes on the purpose and character of the original lease. I am satisfied, on the terms of that lease according to the authorities, that it is a contract whereby work was performed in the hotel industry, and, hence, within the jurisdictional scope of s 106. Thus, the impugned contract here is the deed of consent to assignment of lease but as incorporating therein the original lease itself so that any avoidance or variation of such deed would, insofar as the applicants are concerned, effectively avoid or vary the terms of the original lease. The jurisdictional argument of the respondent must fail so that its notice of motion filed on 28 July 1999 should be dismissed, with costs.

17 His Honour also set out, in summary form, his findings and conclusions as follows (at [95]): 95 In summary, the findings and conclusions I have reached in this matter are: (1) The deed of consent to assignment of lease made on 1 May 1990, as incorporating therein the terms and conditions of the original lease made on 10 July 1989 and as if the applicants had been parties to that lease, is a contract whereby work is and was performed in the hotel industry. (2) The said deed so incorporating the original lease is within the jurisdictional scope of s 106 of the Industrial Relations Act so that the respondent's notice of motion filed on 28 July 1999 challenging jurisdiction should be dismissed, with costs. (3) The rent deferral arrangement made between the applicants and the respondent in or about mid-1992 and continued on later dates was an agreement by the respondent to defer part of the rent due under the lease to be payable by the applicants on the sale by them of the hotel business. (4) The rent deferral arrangement so made constituted a waiver by the respondent of the applicants' obligations to pay on the due date the full amount of rent under the lease. As such, the applicants did not commit a breach or non-observance of the lease conditions. (5) The applicants validly exercised on 31 March 1999 the option to have the respondent grant them a lease of the Tavern for a further period of 10 years commencing on 10 July 1999 and there was no basis upon which the respondent could properly decline to do so. (6) The applicants are entitled to an appropriate declaration under s 154 of the Industrial Relations Act as to the valid exercise by them of the option as being in relation to the subject contract otherwise found to be within the jurisdictional scope of s 106. (7) The deed of consent to assignment of lease, in applying to the applicants the terms of the original lease as to the rental level and the annual adjustment thereof, was in its terms and in its operation unfair, harsh and unconscionable within the meaning of s 106 as an unfair contract. (8) In all the circumstances found, discretion should be exercised to make appropriate orders in favour of the applicants to remedy their position by varying the subject contract. (9) In determining such orders, the evidence of the expert witnesses called on behalf of the applicants is to be preferred to that called for the respondent where there be conflict. Specifically, the contents of the reports prepared by Mr John Robertson as to fair market rentals for each year the hotel was operated by the applicants, the annual increases in rental under the lease, the absence of a rent review clause and comparable hotel leases in the area are accepted, as is his opinion concerning an appropriate market rental at the commencement of a new 10-year lease term on 10 July 1999 and its annual adjustment for the balance of the term. (10) Subject to a modification in relation to the first 10-year term, Mr Robertson's approach is reasonable and the subject contract should be varied to reflect it. (11) The modification is that the respondent is entitled to have the applicants observe the full terms of the lease and the rent provided by it from the commencement of their occupancy on 1 May 1990 to 9 July 1992 when the rent was first deferred. (12) The subject contract should be varied with effect as from 10 July 1992 to provide an annual rent in respect of the hotel premises and the residential flat accommodation of $124,230; on each 10 July anniversary date thereafter for the balance of the term to 9 July 1999 the annual rental to be increased by 8 per cent per annum. (13) As to the lease term of 10 years commencing on 10 July 1999, the commencing annual rental in respect of the hotel premises and the residential flat accommodation to be $195,000 to be increased on each 10 July anniversary date thereafter for the balance of the term to 9 July 2009 by 4 per cent per annum. (14) A declaration should be made to the effect that the current market rental for the subject premises at 10 July 1999 was $195,000 per annum. (15) An order should be made for the payment of money by the respondent to the applicants in connection with the subject contract so varied, being the difference between the rent actually paid by the applicants and the rent due under the lease as varied, including for the new lease commencing on 10 July 1999. (16) The applicants' claim for interest on any moneys ordered to be paid is refused. (17) The respondent is to pay the applicants' costs of the proceedings, including reserved costs, in an amount as agreed or assessed. Leave to Appeal

18 This appeal is brought pursuant to the provisions in Part 7 of Chapter 4 of the Act and, in particular, ss188, 191 and 192. The appeal is one, therefore, in which leave to appeal was required. Section 188 is in the following terms: 188. Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister.

19 The application for leave to appeal and appeal identified the matters appealed against as follows:

a) His Honours finding that the Commission has jurisdiction in relation to the matters; b) His Honours finding that a deed of consent to an assignment of a lease is a contract whereby work is and was performed in the hotel industry; c) His Honours finding that the deed of consent was unfair, harsh and unconscionable within s106 of the Act and was an unfair contract; d) His Honour's finding that the original lease should be varied; e) His Honour's finding that the respondents were not in breach of the lease assigned to them;

f) His Honour's finding that the respondents were entitled to exercise an option to have a new lease granted to them at a market rental of $195,000; g) The orders made by his Honour giving effect to those findings.

20 The application for leave claimed that leave should be granted as:

a) His Honours decisions raise substantial questions as to the extent of the jurisdiction conferred by s106; b) His Honour's decision involved the retrospective variation of a contract made many years after its execution throughout which the parties conducted their affairs on the basis that the contract was binding.

21 After the hearing of the appeal, the Full Bench gave an extempore judgment refusing leave to appeal in relation to certain aspects of the application for leave. That extempore judgment was in the following terms: In this matter the Full Bench has heard the application for leave to appeal and the appellant in relation to the whole of its submissions.

It is fair to describe those submissions as dealing with two areas. The first is a jurisdictional issue, the second area the non-jurisdictional issues.

As to the second area, the non-jurisdictional issues, the Full Bench has determined to refuse leave to appeal.

22 The principles applicable to the granting of leave to appeal were settled by the Full Bench in Knowles v Anglican Church Property Trust (No.2) (1999) 95 IR 380 (which judgment has been approved in Sykes v Alan East Pty Ltd (Formerly National Meat Supplies Pty Ltd) [2000] NSWIRComm 1130, Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at 144 and Llandilo Staircases Pty Ltd v WorkCover Authority of New South Wales (Inspector Parsons) (2001) 104 IR 204 at 206).

23 In Knowles the Full Bench stated (at 381): We have determined that the Commission should not grant leave to appeal pursuant to s188 of the Act. In doing so we do not propose to depart from the general policy and practice of the Commission not to give reasons for the refusal of leave. However, we do propose to make some observations as to the conduct of appeals where the grant of leave is required which are apposite in the present matter. Firstly, as a Full Bench of this Commission noted in Perrott v Xcellenet Australia Limited (1998) 84 IR 255 at 265 , leave will not lightly or automatically be granted. The statutory scheme makes clear that the legislature intended to restrict access to appeals to appropriate cases meeting the public interest test stated in s188(2) . These principles are also applicable to cases involving questions of jurisdiction. The raising of a jurisdictional issue by an appellant does not, of itself, establish a basis for the grant of leave; each case having to be judged against the statutory criterion. The Commission should have regard to the nature of the jurisdictional issue and whether there is a demonstrable case that the Commission has exceeded or failed to exercise its jurisdiction. Clearly, this consideration will involve a question as to whether the decision appealed from was inconsistent with established law and principle. Secondly, it will be relevant to the grant of leave to consider, amongst other factors, whether the appellant has brought, as in this matter, a substantially different case in the appeal. This is not to say that the admission of new evidence per se would have this result, but that the bringing of, in substance, a new or materially different case on appeal may constitute a basis for the refusal of an application for leave to appeal. In Caltex Petroleum Pty Ltd v Harmer [(1999) 92 IR 264] the Full Bench stated: As to the second matter averted to above, we consider that leave would ordinarily, in the absence of changed circumstances, be refused where an appellant raises arguments or presses issues on the appeal which were not squarely raised at first instance; irrespective of whether the relief sought or the outcome contended for by the appellant remains the same or substantially the same... We agree with the principle so stated. Thirdly, it will be relevant to consider whether an appeal raises substantial and important considerations. The issues raised by an appellant as to the public interest considerations under s188(2) need to be evaluated in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application.

24 The question of leave to appeal did not significantly feature in the appellant's submissions, except to the extent that the appellant sought to agitate jurisdictional issues. Mr Grieve QC, who appeared for the appellant, did not seek to challenge his Honour's findings of fact. He challenged the conclusions his Honour drew from the facts as found. As to the jurisdictional matters raised on the appeal, the appellant submitted that leave should be granted as his Honour erred in finding that the consent provided by the appellant to the respondent for the assignment of the lease from Sherwood and the agreement for the deferment of rental payments were contracts whereby work was performed in an industry and, therefore, subject to the jurisdiction of s106 of the Act.

25 It was submitted that a lease confers more than a mere contractual right on the lessee. It confers an interest in the land demised. The acquisition of the assignment of the lease was properly to be characterised (and was understood by the parties) as an acquisition of a capital asset. Sherwood and the respondents had made an agreement of the outright sale of the Tavern business. As such that agreement is not susceptible to review under s106: Production Spray Painting & Panel Beating v Newnham (1991) 27 NSWLR 644 (1991), 37 IR 46. The assignment of the lease was merely the completion of one of the steps required by that sale agreement. The appellant's consent to that acquisition was merely facultative. It was submitted that the consent provided by the appellant should not operate to confer on the respondent recourse under s106 that they otherwise did not have.

26 The appellant did respond to the contention advanced by the respondents that leave should not be granted due to the failure of the appellant to comply with directions of the Court. The appellant contended, in this respect, that leave might well be refused in such circumstances if the appeal was advanced on 'flimsy grounds' and was 'merely no more than an attempt to buy time'. It was submitted that this was not the situation in the present case. Further, the respondent had suffered no demonstrated prejudice and, as such, procedural defaults should not operate to deny the right to argue the substantive issues which arise: The State of Queensland and another v J L Holdings Pty Ltd (1997) 189 CLR 146

27 The respondent contended that leave to appeal should be refused. It was submitted that the grant of leave is not a mere formality: Hilton Nursing Home Pty Limited v Maciver (2000) 102 IR 335 at 342 and ought not be granted lightly: Perrott v Xcellenet Australia Pty Ltd (1998) 84 IR 255 at 265: Knowles v Anglican Property Trust (No.2) at 381 and Box Valley Pty Ltd v Price (2000) 97 IR 484. The appellant bears the burden of making out a proper case for leave. It was submitted merely the raising of a jurisdictional issue does not satisfy the burden: Knowles v Anglican Property Trust (No.2) at 381.

28 Mr M J Kimber SC, who appeared for the respondents, submitted that leave ought not be granted where the issue on appeal has been the subject of authoritative pronouncement: DeSimone Consulting Pty Limited v Ison (2000) 97 IR 478 at 482 and Cash Converters v Yildiz (1999) 94 IR 474 at 476. He contended that the extent of the jurisdiction conferred by s106 of the Act is well settled, including the jurisdiction of the Court in relation to lease arrangements: Jennings v Auto Plaza Ltd (1993) 46 IR 413; Booth v Kritikos Developments Pty Limited (1995) 59 IR 298; Kostakis v New World Oil & Developments Limited (unreported, Schmidt J, CT 1157 of 1996, 25 July 1997) and Australian Institute of Music Limited v L M Investment Management Pty Ltd [2000] NSWIRComm 201.

29 Further, the reliance by the appellants on the judgment at first instance varying contractual arrangements that had been in place for a number of years is, it was submitted, of no consequence on the question of leave. The retrospective variation of a contract made many years after its execution is a common result of cases decided under s106.

30 As earlier mentioned, the respondents contended that the appellant had ignored directions of the Court on numerous occasions. Given this repeated failure to comply with directions, it was submitted the Court should use its inherent power to prevent an abuse of its process by refusing leave to appeal.

31 We have refused leave to appeal in this matter in relation to 'non-jurisdictional' issues raised upon the appeal. Those 'non jurisdictional' matters included the challenge on appeal to the finding of unfairness made by his Honour and the consequential orders that flowed from it. Although the convention of this Court is not to provide reasons for refusing leave to appeal the appropriateness or availability of that practice is now doubtful since the judgment of the High Court last year in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 75 ALJR 1342: see particularly the passages at [26] and [32] to [36]. The present case does not provide the occasion to deal definitively with this issue. We, however, make the following observations as to the bases for refusing leave to appeal.

32 It is trite that a finding of unfairness is a matter of mixed fact and law and that, in reviewing such a determination, an appellate Court will give "respect and weight" to the conclusions of the trial judge: Port Macquarie Golf Club v Stead (1996) 64 IR 53 at 59. This is not a case where the appeal challenges the trial judge's findings of fact per se, but rather, the inference drawn from them. We consider that the findings of Hungerford J at first instance were reasonably open to his Honour. Moreover, we do not consider that these non-jurisdictional issues raise matters of such importance as to warrant the granting of leave to appeal. We have also taken into account, in reaching this decision, the failure of the appellant to adhere to the procedural directions given by the Court in relation to the appeal. Those failures have not, however, been determinative of the issue.

33 In relation to the 'jurisdictional matters', we have also concluded that leave to appeal should not be granted. After carefully reviewing the judgment at first instance and the submissions of the parties on appeal, we do not consider there are any jurisdictional issues that raise matters of such importance as to warrant the granting of leave.

34 Hungerford J found that "although strictly speaking the applicants were not parties to the lease, they were parties to the deed of consent to assignment of the lease…" His Honour found the deed, by its terms, effectively incorporated the terms of the lease so that "the deed takes on the purpose and character of the original lease." As to the effect of the lease on the relationship of the parties Hungerford J found (at [78]): … the relationship between the applicants and the respondent here under the lease constituted an ongoing relationship with the clear purpose, on the facts, that the applicants would conduct the business of an hotel from the Tavern for the duration of the lease term and that necessarily contemplated the performance of work, including as to the maintenance of the premises in good order and repair.

35 We consider that, on the facts, this finding was entirely open to his Honour. It follows that the performance of work under the deed, incorporating as it did the terms of the original lease, was a direct result of an obligation imposed by the deed and not an "accidental consequence" (see Production Spray Painting & Panel Beating v Newnham at 649 per Mahoney JA) or an "indirect, remote or consequential" result of the deed (see Kostakis v New World Oil & Developments Limited at 10).

36 Further, we consider that the law on this issue is well settled: Stevenson v Barham; Caltex Oil (Aust) Pty Ltd v Feenan; Production Spray Painting & Panel Beating v Newnham; Jennings v Auto Plaza Ltd; Booth v Kritikos Developments Pty Limited; Kostakis v New World Oil & Developments Limited and Australian Institute of Music Limited v L M Investment Management. It is also quite clear that merely because a contract or arrangement might be characterised as "commercial" that is not a basis upon which to conclude it cannot be challenged under s 106 of the Industrial Relations Act: Loupos v Basa t/as Robert R Andrews Real Estate (1995) 62 IR 397 at 400; Zakrzewski v Rodgers (2000) 106 IR 1 at 10; Gough & Gilmour Holdings Pty Limited v Caterpillar of Australia Limited (No 9) [2001] NSWIRComm 260 at [42].

37 As was observed in Knowles, a crucial consideration in determining whether leave to appeal should be granted is "whether the decision appealed from was inconsistent with established law and principle". Given the clear and consistent pronouncements in this area extending over a number of years, leave to appeal on the jurisdictional matters should be refused: see also De Simone Consulting Pty Limited v Ison at 482; Cash Converters Pty Limited v Yildiz at 476.

3. The appellant shall pay the respondents' costs of the appeal as agreed or, failing agreement, as assessed.

4. The stay granted on 4 December 2000 of the orders made by the trial judge will be lifted at 4.00 pm on 10 May 2002 unless before that time, a party by motion, or the parties by the filing of consent orders, seeks alternative orders to be made as to the stay.

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