Perpetual Corporate Trust Ltd atf the Ascendas Longbeach Trust No. 10 v... [2026] NSWSC 204 | Case summary

Medium Neutral Citation: Perpetual Corporate Trust Ltd atf the Ascendas Longbeach Trust No. 10 v Larapinta Project Pty Ltd atf the Kiora Trust [2026] NSWSC 204

Hearing dates: 4 March 2026

Date of orders: 17 March 2026

Decision date: 17 March 2026

Jurisdiction: Equity

Before: Emmett J

Decision: (1) Direct the parties to confer and send to my chambers within 14 days a form of any orders which the parties agree should be made to give effect to these reasons, and any costs order which the parties agree should be made;
(2) If there is a dispute between the parties about any proposed orders (including as to costs), then by the same date each party is to serve and send to my chambers:
(a) the form of contested orders which it seeks; and
(b) submissions of no more than 5 pages stating the basis on which those orders sought and indicating whether the party seeks an oral hearing;
(3) If contested orders and submissions are served in accordance with order 2, then within 7 days each party is to serve and send to my chambers any submissions in response, such submissions to be no more than 5 pages.

Catchwords: CONTRACTS – Construction – Interpretation – whether defendant obliged by contract to pay a “Rent Guarantee” of more than $50,000 to the plaintiff – whether new lease was “procured” by defendant before date contemplated by contract – whether defendant liable for “Leasing Costs” claimed by plaintiff in amount greater than “Rent Guarantee” – defendant not liable under relevant clauses for any amount in excess of $50,000.
CONTRACTS – Construction – Interpretation – meaning of defined expression "Rent Guarantee" – whether parties intended defined term to be in the nature of a cash security – where no contractual provision for the length of time the security is to be retained – where no contractual provision for the means by which the security is to be returned – the clause requiring payment of the “Rent Guarantee” should not be interpreted as requiring payment of an amount which is merely provided by way of security.
CONTRACTS – Construction – Interpretation – meaning of defined expression “Leasing Costs” – whether “incentive” expenses, legal costs and/or agent’s fee fall within definition – whether amounts claimed were “incurred by” defendant within the meaning of the definition.

Cases Cited: Barangaroo Delivery Authority v Lend Lease (Millers Point) Pty Ltd [2014] NSWCA 279
Breusch v Watts Development Division Pty Ltd (1987) 10 NSWLR 311
Briginshaw v Briginshaw (1938) 60 CLR 336
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12
Lowther v Caledonian Railway Co [1892] 1 Ch 73
Skanska Rashleigh Weatherfoil Ltd v Somerfield Stores Ltd [2006] EWCA Civ 1732
The J&P Marlow (No 2) Pty Ltd v Hayes and McCabe (2023) 112 NSWLR 29; [2023] NSWCA 117

Category: Principal judgment

Parties: Perpetual Corporate Trust Limited atf the Ascendas Longbeach Trust No.10 (Plaintiff)
Larapinta Project Pty Ltd acting atf the Kiora Trust (Defendant)

Representation: Counsel:
D Weinberger SC / N Andrews (Plaintiff)
D Rayment SC / A Hourigan (Defendant)
Solicitors:
Lander & Rogers (Plaintiff)
United ACL (Defendant)

File Number(s): 2023/00360173

Publication restriction: Nil

JUDGMENT

Introduction

The plaintiff (“Perpetual”) sues the defendant (“Larapinta”) for amounts Perpetual says are owed to it under cl 14 of a Development Agreement entered into between the parties on 22 March 2019. Larapinta has cross-claimed seeking, inter alia, declaratory relief as to its obligations under cl 14.
On 28 November 2018, Perpetual had agreed to purchase land in Yennora, NSW from Larapinta. On 22 March 2019, the parties entered into the Development Agreement between Larapinta as “Developer” and Perpetual as “Owner” of the land.
Settlement of the purchase contract occurred on 1 July 2020.
The central questions for decision are whether Larapinta is obliged to make a payment described in the Development Agreement as a “Rent Guarantee” in an amount greater than $50,000, and whether Larapinta is obliged to pay specific amounts claimed by Perpetual as “Leasing Costs” under the Development Agreement.

The Development Agreement

The Development Agreement provides for the construction on the land of a warehouse and ancillary office, hardstand and associated parking with a lettable area of approximately 13,100 square metres. The Development Agreement contemplates that Larapinta would enter into a building contract with the “Builder” – being Pelligra Build Pty Ltd (“Pelligra”), an associated entity – for the construction of the proposed development.
The Development Agreement provides for Practical Completion, being completion of the development works in accordance with, or substantially in accordance with, a suite of requirements. The Date of Practical Completion is the date on which the superintendent under the building contract issues a certificate in accordance with cl 6.5. The Completion Date is 10 business days after the Date of Practical Completion.
Relevantly for these proceedings, cl 14 provides as follows:

14.1 Developer Leasing

(1) After the Settlement Condition, the Developer can elect to carry out leasing activities with respect to the Land and the Development Works prior to the Completion Date (Leasing Activities).

(2) If the Developer elects to carry out Leasing Activities it:

(a) will be liable for the Leasing Costs;

(b) must take reasonable steps to seek to lease the Premises and appoint an agent and take reasonable steps to market and advertise the Premises for lease;

(c) keep the Owner informed, on request, of its endeavours to lease the Premises.

(3) The Developer must not sign a heads of agreement (whether binding or non-binding) without the consent of the Owner, such consent not to be unreasonably withheld, delayed or conditioned.

(4) The Owner’s consent will be not required to consent to any New Lease if the New Lease satisfies the Minimum Requirements. If a New Lease does not satisfy the Minimum Requirements, the Owner’s consent will be required before entry into a New Lease, such consent not to be unreasonably withheld, delayed or conditioned.

(5) For the purpose of this clause the following definitions apply

(a) Minimum Requirements means a New Lease to include the following minimum terms:

(i) Term - initial term of not less than 5 years;

(ii) Commencement Date - within 10 days of the Completion Date

(iii) Rent - net face rent of not less than $115 per square metre per annum;

(iv) Rent Reviews - annual rent reviews of not less than 3.25%;

(v) Market Rent Reviews - at the commencement of a further term with a minimum increase of 3.25%;

(vi) Security - not less than the incentive under the New Lease, plus GST and outgoings for the period of the incentive;

(vii) Documentation - in a form reasonably required by the Owner and to be prepared by the Owner’s lawyer. The Owner’s precedent lease will be deemed acceptable; and

(viii) Unconditional - the lease must be unconditional before the Commencement Date.

(b) New Lease means a lease of the Land procured by the Developer which satisfies the Minimum Requirements.

14.2 Owner Leasing Rights

(1) Despite clause 14.1, the Owner is permitted to carry out its own leasing activities in respect of the Premises whether or not the Developer has elected to undertake the Leasing Activities. Any lease entered into pursuant to this clause will not be a New Lease for the purposes of clause 14.1

14.3 Rent Guarantee

(1) On the Completion Date, subject to clause 14.4, the Developer must pay to the Owner the Rent Guarantee.

14.4 Rent Guarantee Reduction

(1) If the Developer procures a New Lease before the Completion Date, then the Developer will be entitled to retain the Rent Guarantee other than for the Rent Support which will be payable regardless of whether the Developer procures a New Lease.

(2) If the Developer procures a New Lease before the Completion Date, but the total cost of the Leasing Costs incurred exceed the amount of the Rent Guarantee, the Owner agrees that it will pay any amount over and above the Rent Guarantee. Any Leasing Costs that would exceed the amount of the Rent Guarantee require the consent of the Owner, who must act promptly and reasonably.

14.5 Adjustment to Development Price

(1) Any payment due by either party to the other under this clause 14 can be adjusted against any outstanding Development Price.

Many of the capitalised expressions in cl 14 are defined in cl 1.1. In particular:
“Settlement Condition” means the settlement date for the purchase contract (which, as noted above, was 1 July 2020);
“Leasing Costs” is defined as follows:

Leasing Costs means any leasing costs incurred by the Developer under clause 14.1, including agents fees, incentives payable under the New Lease, bonus fees, legal costs and registration fees;

“Rent Guarantee” is defined as follows:

Rent Guarantee means the amount of the Rent Guarantee provided by the Developer to the Owner under clause 14.3 being $1,380,000 plus GST subject to variation pursuant to clause 6.3(4) and 6.6 and subject to a possible reduction in accordance with clause 14.4;

“Rent Support” is defined as follows:

Rent Support means the amount of the $50,000 plus GST which comprises part of the Rent Guarantee[.]

The definition of “Rent Guarantee” refers to variation under cl 6.3(4) or cl 6.6. Those clauses are as follows:

6.3 Authority Variations

(1) Subject to Clause 6.3(2), the Developer must not vary the Development Works or Plans and Specifications without the prior written consent of the Owner, which consent may be withheld by in the Owner’s absolute discretion.

(2) The Developer shall be entitled to carry out variations to the Development Works or the Plans and Specifications, without the prior consent of the Owner, if such variation is required to be undertaken to comply with the requirements of an Authority provided that in each case the Developer provides the Owner with prior written notice of that variation.

(3) The Developer must provide to the Owner all information reasonably required by the Owner in relation to the variation including:

(a) copies of all plans and other documentation relating to any variations; and

(b) the details of any impact on the development program (if any).

(4) Any variation to the Development Works carried out by the Developer pursuant to clause 6.3(2) will be at the Developer’s Cost save and except that if in complying with the requirement of an Authority the Developer is required:

(a) to increase the Lettable Area of the Development to an area greater than 13,100m2:

(i) the Developer will be entitled to an increase in the Development Price equal to the Area Differential multiplied by the Area Rate, capped at a 2% increase to the Development Price (excluding GST); and

(ii) the Rent Guarantee will be increased by the same proportion that the Development Price would have increased if the 2% cap did not apply; and

(b) to decrease the Lettable Area of the Development to an area less than 13,100m2:

(i) the Owner will be entitled to a reduction in the Development Price equal to the Area Differential multiplied by the Area Rate, capped at 2% decrease to the Development Price (excluding GST); and

(ii) the Rent Guarantee will be decreased by the same proportion that the Development Price is decreased but capped at no more than a 2% decrease.

(5) The Developer and Owner agree that nothing in this Clause 6.3 will prevent the Developer from carrying out minor variations to the Development Works or Plans and Specifications without prior consent of the Owner (provided that they are consistent with the original architectural drawing for the Development forming part of the Plans and Specifications) if required as part of the general design and development of the Development Works so long as the Developer provides details to the Owner in the monthly progress report referred to in Clause 6.4(1).

…

6.6 Survey

(1) The Developer must as soon as reasonably practicable after the Date of Practical Completion, procure a survey establishing the Lettable Area in square metres of the Development; and must provide a copy of the survey to the Owner promptly after receiving it from the surveyor.

(2) If the aggregate of the surveyed Lettable Area in clause 6.6(1) is more than the Target Lettable Area, then:

(a) the Developer will be entitled to an increase in the Development Price equal to the difference in area multiplied by the Area Rate, capped at a 2% increase to the Development Price (excluding GST); and

(b) the Rent Guarantee will be increased by the same proportion that the Development Price would have increased if the 2% cap did not apply.

(3) If the aggregate of the surveyed Lettable Area in clause 6.6(1) is less than the Target Lettable Area, then:

(a) the Owner will be entitled to a reduction in the Development Price equal to the difference in area multiplied by the Area Rate, capped at a 2% decrease to the Development Price (excluding GST); and

(b) the Rent Guarantee will be decreased by the same proportion that the Development Price is decreased but capped at no more than a 2% decrease.

Relevant factual matters

On 10 July 2020, Larapinta entered into a NSW Commercial Agency Agreement with CBRE Pty Ltd (“CBRE”) for an initial term of 1 July 2020 to 21 December 2021. The agency agreement gave CBRE the exclusive right to market and lease the property on behalf of Larapinta for a fee to be calculated in accordance with a scale of fees and charges annexed to the agency agreement.
From mid-2020 until June 2021, Mr Michael O’Neill of CBRE met once or twice a month with:
Mr Sean Doyle, who represented Larapinta’s interest (Mr Doyle was the National Development Manager of Pelligra); and
Mr Christopher Heck, an Asset Manager with CapitaLand Australia Pty Ltd (“CapitaLand”). CapitaLand was Perpetual’s manager and represented Perpetual’s interests under the Development Agreement.
In these meetings, it appears that the participants discussed various inquiries that CBRE had been making and potential tenants that had been identified by CBRE.
At some point – at least by 2 July 2021 – Mr Heck started to give CBRE instructions directly, without involving Larapinta. On 2 July 2021, Mr Heck and Mr O’Neill had a discussion in which Mr Heck gave Mr O’Neill instructions to propose particular lease terms to a prospective tenant later described as “McPhee’s Transport”. Those terms included rent of $122.50 per square metre and a “15% incentive”.
On 6 July 2021, Mr Heck gave Mr O’Neill instructions to put a Heads of Agreement to McPhee’s Transport. On 7 July 2021, a Heads of Agreement was signed by an entity described as “McPhee’s Transport”. On 15 July 2021, Mr Heck (having obtained approval from his head office in Singapore) signed the Heads of Agreement on behalf of CapitaLand.
The Heads of Agreement included the following:

On 27 July 2021, Mr Heck informed Mr Doyle that the Heads of Agreement had recently been signed. On the evidence, this was the first time Larapinta or interests associated with Larapinta were informed of the Heads of Agreement. There is no evidence of Larapinta being involved – itself or through Pelligra – in giving instructions to CBRE in relation to this Heads of Agreement before it was signed.
On 30 September 2021, Perpetual entered into an Agreement for Lease (the “Agreement for Lease”) with McPhee Distribution Services Pty Ltd (“McPhee”). The Agreement for Lease provided for:
a commencing rent of $120 per square metre of “Lettable Area”;
an incentive in the nature of a rent reduction of 15% of the rent payable over the initial term;
works to be carried out by Perpetual, described as “Landlord’s Works”, including the installation of racking for 6,000 pallets.
Pursuant to cl 12.1, Perpetual agreed to grant, and McPhee agreed to accept, a lease in the form annexed to the Agreement for Lease on and from the Commencement Date. The Commencement Date was defined as the day following the Date of Practical Completion. Practical Completion was itself defined by reference to Practical Completion under the Development Agreement, to be determined in accordance with cl 9 of the Agreement for Lease.
Clause 12.2 of the Agreement for Lease provided as follows:

12.2 Preparation and execution of Lease

(a) Within 20 Business Days after the later of the Commencement Date and the date the Lettable Area of the Premises is determined in accordance with clause 10, the Landlord must or must instruct its solicitors to prepare the Lease. The Lease is to be in the Form of Lease completed by:

(i) inserting the date of the Lease, being the date of execution (which will be inserted after the Landlord executes the Lease);

(ii) if the details for the Land title have changed, updating Item 1 of the Lease to include the then current title details;

(iii) inserting the Lettable Area of the Premises in the relevant section of Item 1 of the Lease, as determined under clause 10.1;

(iv) inserting the amount of the commencing annual Rent in Item 4;

(v) inserting the Commencement Date in Item 4 of the Lease and in section (G)2 of the cover page to the Lease, being the same date as the Commencement Date;

(vi) inserting the Expiry Date in Item 4 of the Lease and in section (G)3 of the cover page to the Lease, having regard to the Commencement Date and the Term;

(vii) inserting the Rent Commencement Date in Item 5 of the Lease, being the date that is 3 months after the Commencement Date;

(viii) inserting the particulars of the new further term in Item 14 of the Lease, having regard to the Commencement Date, the Expiry Date and the Term;

(ix) attaching as Schedule 2 to the Lease the survey plan of the Premises prepared under clause 10.1; and

(x) inserting all other details necessary to complete the Lease.

(b) If any of the details in clause 12.2(a) cannot be determined at the Commencement Date, the Landlord’s solicitors may complete the Lease by inserting the manner in which the details are to be determined.

(c) The Tenant must execute the Lease in duplicate and use reasonable endeavours to deliver the duly executed Lease to the Landlord or its solicitors as soon as practicable and no later than one month after execution copies of the Lease are given to the Tenant or its solicitors.

(d) After the Lease has been duly executed by the Tenant, the Landlord must execute the Lease in duplicate and use reasonable endeavours to deliver an original fully executed Lease to the Tenant or its solicitors no later than one month after the Landlord receives the executed Lease pursuant to clause 12.2(c).

(e) Until the Lease has been duly executed by all parties, the parties will be bound as and from the Commencement Date by the terms of the Form of Lease as if it had been prepared, completed and executed in accordance with this clause 12.2. If any term cannot take effect until one or more of the details referred to in clause 12.2(b) determined, that term takes effect retrospectively from the Commencement Date once the necessary details have been determined.

Under the Development Agreement (subject to an agreed extension of time), Practical Completion occurred on 24 February 2022.
The Completion Date under the Development Agreement occurred 10 business days later, on 10 March 2022.
On 17 June 2022, a lease between Perpetual and McPhee was executed (the “McPhee Lease”). Consistent with cl 12.2 and in particular cl 12.2(e) of the Agreement for Lease, the Commencement Date for the McPhee Lease was stated to be 25 February 2022. The McPhee Lease included provision for the “Landlord Installed Racking”, which was the racking installed by Perpetual immediately prior to the Commencement Date. Clause 17.3 provided that the Landlord Installed Racking must be left in situ at the end of the term of the lease.
On 17 June 2022, Perpetual and McPhee also entered into a separate Incentive Deed, which provided for an incentive by way of rent reduction, in a total amount of $1,180,260 to be applied according to a formula to each monthly instalment of rent.

Further dealings between Perpetual/CapitaLand and CBRE

On 13 September 2021, Mr O’Neill emailed Mr Heck seeking his confirmation that CBRE’s fee would be $211,652 plus GST.
On 15 September 2021, Mr Heck replied asking Mr O’Neill whether there was “any agency agreement in circulation”.
On the same day, Mr O’Neill replied attaching an agency agreement, apparently the agreement between CBRE and Larapinta.
Mr O’Neill sent emails on 13 December 2021 and 20 December 2021 chasing Mr Heck.
On 20 December 2021, Mr Heck replied saying there was “no sign of [practical completion] yet” and asked Mr O’Neill to invoice “us” in the next year. Mr Heck’s email said specifically, “Can you please bill us?” Mr Heck said that the correct entity was Ascendas Longbeach Trust No 10 (ie, the trust as trustee of which Perpetual has sued Larapinta in these proceedings).
On 25 February 2022 (ie, the day after Practical Completion occurred on 24 February 2022), Mr O’Neill emailed Mr Heck seeking confirmation that CBRE should bill $221,888.88 plus GST. The change reflected the slight increase in Lettable Area, leading to a consequential increase in the rent payable and therefore in CBRE’s fee. Mr O’Neill added (ellipsis in original):

“Also presumably Pelligra are now aware? Our Cap Markets team will be invoicing them for the sale…”

Mr Heck replied “Approved.” He also said that “Pelligra are aware of OC”, although the evidence does not disclose what Mr Heck meant by “OC”.
On 28 February 2022, CBRE issued an invoice to Perpetual for $244,077.77 (being $221,888.88 plus GST).
On 20 April 2023, CBRE issued an adjustment note reversing the commission fee previously recorded as payable by Perpetual. This was less than three weeks before the filing of the Commercial List Statement in these proceedings on 8 May 2023. The evidence establishes that by this stage there had already been a dispute between Perpetual and Larapinta since at least August 2022 about amounts payable under cl 14.
20 April 2023 is the same date that CBRE first issued an invoice to Larapinta.
On 31 May 2023, after these proceedings had been commenced, CBRE wrote to Larapinta asserting its entitlement to the commission under the agency agreement struck on 10 July 2020.

Principles of construction

My attention was drawn to the observations of Bell CJ in The J&P Marlow (No 2) Pty Ltd v Hayes and McCabe (2023) 112 NSWLR 29; [2023] NSWCA 117 (“J&P Marlow”) at [75]-[80], which I follow in this case. The starting position will be what a reasonable businessperson would have understood by the terms of the contract themselves. The contract itself is the best source for the ascertainment of the commercial purpose.
Where I have discerned a commercial purpose, I have done so from the text of the Development Agreement. I have been particularly mindful of Lord Justice Neuberger’s observation in Skanska Rashleigh Weatherfoil Ltd v Somerfield Stores Ltd [2006] EWCA Civ 1732 at [22], cited by Bell CJ in J&P Marlow at [77], that judges should “avoid arrogating to themselves overconfidently the role of arbiter of commercial reasonableness or likelihood”. To adopt the language used by Nettle J in Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12, in a passage quoted by Bell CJ in J&P Marlow at [80], I have not allowed any perception of what is commercially reasonable or likely to cause a departure from a plain, ordinary and commercially not irrational meaning in favour of a meaning which is significantly removed from the natural and ordinary meaning, or which ill-accords with other provisions of the contract. Rather, where I discern two alternative and semantically not improbable interpretations, I have considered what an honest and reasonable businessperson in the position of the parties would understand by the words chosen by the parties.

Issues for decision

There are two primary issues for decision:
Is Larapinta liable to pay a Rent Guarantee of more than $50,000?
Is Larapinta liable for any of the “Leasing Costs” claimed by Perpetual?
While a third issue arose on the pleadings, being whether or not Larapinta is liable to pay the Coupon Amounts, Larapinta confirmed at the beginning of the hearing that it did not contest Perpetual’s claim for the Coupon Amounts.

Is Larapinta liable to pay the Rent Guarantee?

Is the Rent Guarantee a “guarantee” to be held by Perpetual on account?

Larapinta contends that the obligation in cl 14.3 is not an obligation to pay the Rent Guarantee as an amount that Perpetual is entitled to retain to its own benefit. Rather, on this argument, the Rent Guarantee is in the nature of a cash security, which Larapinta is obliged to provide, and which Perpetual is obliged to hold on account of any shortfall in rent below the Minimum Requirements. Larapinta’s contention is that, as events have transpired, there is in fact no shortfall in rent below the Minimum Requirements, so that no “Rent Guarantee” is payable.
There are some textual indications that the “Rent Guarantee” is intended to be in the nature of a cash security.
First, the expression “Rent Guarantee” is used in the body of the definition of “Rent Guarantee”. To avoid circularity, the expression in the body of the definition must be understood as a reference not to the defined term but to a rent guarantee (in the undefined sense). Those words would then be given, at least in the first instance, their ordinary legal meaning. One natural meaning – perhaps the most natural meaning in the present context – is that the rent guarantee is intended to be a cash security.
Second, the definition of “Rent Guarantee” describes it as the amount “provided” to Perpetual. That is unusual language for a simple payment obligation and is more natural language for a rent guarantee in the nature of a cash security. While Perpetual points out that the word “pay” is used in cl 14.3, I do not think that assists Perpetual. If one reads the substance of the definition into the body of the operative cl 14.3, the requirement is that Larapinta “must pay … the amount of the rent guarantee provided by [Larapinta] to [Perpetual] under clause 14.3 being $1,380,000 plus GST” subject to variation and possible reduction as provided in the definition. The word “pay” in that context is equally consistent with the Rent Guarantee being intended as a cash security.
Third, pursuant to cll 6.3(4) and 6.6, the Rent Guarantee increases if the Lettable Area increases. This is easy to understand if the Rent Guarantee is in the nature of a cash security for the rent expected to be received by Perpetual. It is harder to understand if the Rent Guarantee is meant to be a simple payment to Perpetual’s benefit subject to reduction in cl 14.4(1), intended to operate as an incentive on Larapinta to procure a New Lease.
Despite these indications, I am unable to conclude that the Rent Guarantee is no more than a cash security. There are two important matters that I would expect to see addressed, if the Rent Guarantee were intended as no more than a cash security. The first is provision for precisely what benefits are secured. To say it secures “rent” poses a suite of questions about what parts of the rental expectations in the Minimum Requirements are covered. The second is that there is no provision for how long the security is to be retained, nor for when or how, if it is a mere security, it is to be returned to Larapinta.

Did Larapinta “procure” the McPhee Lease “before the Completion Date”?

Perpetual contends that although a New Lease was procured, Larapinta did not “procure” a New Lease before the Completion Date. Larapinta contends that the lease will be “procured” before the Completion Date if there is a binding agreement for lease – being a lease that is in fact later entered into – and everything necessary has been done by Larapinta to achieve that lease prior to the Completion Date.
By using the word “procure”, the parties adopted a word of uncertain semantic scope. In Breusch v Watts Development Division Pty Ltd (1987) 10 NSWLR 311 at 317, McHugh JA (Hope and Glass JJA agreeing) construed a reference to an entity having “procured the advance of moneys” as including a situation where the entity procured the right to obtain the advance of moneys, even though the advances themselves were not made until later. In Lowther v Caledonian Railway Co [1892] 1 Ch 73 at 82, Lindley LJ held that an obligation to “procure” lands to be enfranchised within a specific period required the obligors to “take all proper steps to obtain an enfranchisement”. At 84, Fry LJ appeared to suggest that it may be enough to “take steps” to procure the enfranchisement within the required period, at least if those steps included the specific steps his Lordship identified. These cases deal with very different contractual or statutory contexts. I place little weight on them, save to illustrate the point that the word chosen by the parties can accommodate something short of the final lease being actually executed between Perpetual and the proposed lessee.
If “procure” has the strict and narrow meaning for which Perpetual contends, an outcome emerges which I find incoherent. Larapinta may do everything necessary to secure a New Lease, but Perpetual may, for its own commercial purposes, delay or extend the negotiations with the proposed lessor. Alternatively, Larapinta may be doing everything necessary to secure a New Lease, and Perpetual may step in at the last minute and purport to contract with the proposed lessee in reliance on its right to conduct its own leasing activities under cl 14.2. It is difficult to understand the commercial purpose of Larapinta being required to pay the Rent Guarantee, without the reduction provided in cl 14.4(1), in those situations.
Indeed, I find it difficult to accept that cl 14.3 applies, without the benefit of the reduction in cl 14.4(1), in circumstances where Perpetual decides to conduct its own leasing activities and in fact enters into a lease which it has negotiated before the Completion Date.
There may be some attraction in reading cl 14.4(1) as being satisfied if a New Lease is procured regardless of who procures it. But that is not what the words say. The alternative is that the “procuring” of a New Lease does not require the lease to be actually executed. “Procuring” a lease may encompass seeing to it that the lease be available to Perpetual as a commercial matter or taking steps that Larapinta itself can practically take towards bringing about the lease, at least in circumstances where a lease in fact comes into existence in due course. Larapinta took steps itself towards arranging for the lease, and of course the Agreement for Lease was entered into on 30 September 2021. As a commercial matter, it is not clear what else Larapinta could have done. That Agreement for Lease was binding between Perpetual and McPhee and led to the McPhee Lease.

Minimum Requirements under cl 14.1(5)(a)

As I indicate above, Perpetual did not press the argument that the McPhee Lease was not a New Lease because it did not satisfy the Minimum Requirements. That is appropriate, given the terms of s 14.1(4) and the clear evidence that Perpetual gave instructions for the negotiation of, and consented to, the Agreement for Lease and the McPhee Lease.
For completeness, I draw attention to an alternative way in which the Minimum Requirements (in particular, the requirement as to the Commencement Date of the lease) and cl 14.1(4) might inform the operation of cl 14.4(1). If Perpetual consents or cannot reasonably withhold its consent to a New Lease commencing more than 10 days after the Completion Date, then cl 14.1(4) is engaged. Perpetual will be taken to have consented to the later commencement date. It may be that, construing cl 14.4(1) together with cl 14.1(4), if Perpetual consents to a lease commencing on a later date, then it is not permitted to rely on the deadline in cl 14.4(1). If that is how cl 14 operates as a whole, then on the evidence before me Perpetual appears to have either consented to the McPhee Lease being entered into later than the Completion Date, or to have brought about a situation where Perpetual cannot reasonably withhold its consent to the McPhee Lease being entered into later than the Completion Date. Perpetual brought that about by taking over the negotiation of the McPhee Lease, including (through its manager CapitaLand) giving instructions to CBRE to the exclusion of Larapinta, negotiating and signing the Heads of Agreement, and thereafter dealing with McPhee directly, all in reliance on cl 14.2.
As this argument was not developed before me, I do not offer a concluded view about it.

Liability for “Leasing Costs”

Pursuant to cl 14.1(2)(a), if Larapinta elects to carry out leasing activities (and I accept that Larapinta did in fact carry out leasing activities), Larapinta will be liable for “Leasing Costs” as defined, save to the extent that cl 14.4(2) excludes that liability.
There are four sets of expenses claimed by Perpetual:
two sets of expenses claimed by Perpetual to be “incentives”: see [68] to [82] below;
legal costs incurred by the firm of solicitors retained by Perpetual and its manager CapitaLand: see [84] below; and
the agent’s fee claimed by CBRE in its invoice to Perpetual of 20 April 2023: see [85] to [91] below.
My conclusion in relation to the operation of cl 14.4(1) provides the simple answer to this claim. As contended by Larapinta in its Commercial List Response at [43], the view I have reached about cl 14.4(1) means that the Rent Guarantee is only $50,000. As a result, by operation of the first sentence of cl 14.4(2), Perpetual has agreed that it will pay any amount of the Leasing Costs over and above the Rent Guarantee. The definition of “Rent Guarantee” makes it clear that the quantum is reduced if cl 14.4 is engaged (which must be a reference to cl 14.4(1)). In that regard, I do not accept the assertion in Perpetual’s Commercial List Cross Claim Response at [C19] that the Rent Guarantee is subject to an adjustment pursuant to cll 6.3(4) and 6.6, but not subject to a possible reduction by operation of cl 14.4(1). The plain words of the definition of “Rent Guarantee” make that assertion untenable. Accordingly, any amount by which the Leasing Costs exceed $50,000 must be paid by Perpetual.
The second sentence of cl 14.4(2) ensures that Larapinta is not able to take advantage of this clause by, for example, committing Perpetual to generous incentives in order to secure a New Lease that satisfies the Minimum Requirements. Perpetual must still consent to any Leasing Costs that exceed the amount of the Rent Guarantee. So, if Larapinta had purported to commit Perpetual to generous incentives in reliance on cl 14.1(4), those incentives would only be subject to cl 14.4(2) – that is, Perpetual would only be liable for them if they exceed $50,000 – if Perpetual had itself consented to those costs as required by the second sentence of cl 14.4(2). This reflects the commercial purpose discussed further at [74]-[76] below, discerned within the four corners of the Development Agreement.
On the facts of this case, Perpetual’s consent to the claimed “incentives” and the legal costs is clear. As for CBRE’s fees, the evidence of Mr Heck’s dealings with CBRE (see [28]-[31] above) requires the conclusion that Perpetual, through its manager CapitaLand, consented to those costs. Indeed, Mr Heck expressly asked for Perpetual to be billed for those fees. Accordingly, while the second sentence of cl 14.4(2) reflects an important part of the commercial balance between the parties, it does not alter the rights between the parties on the facts of this case.

“Incentives” negotiated and agreed to by CapitaLand, Perpetual’s manager

Perpetual claims two costs or expenses on the basis that they are “incentives” and are therefore covered by the definition of “Leasing Costs”:
an incentive of $1,180,260 agreed between Perpetual and McPhee in the Incentive Deed (entered into on the same date as the McPhee Lease), to be provided by way of rent reduction each month over the five-year initial term of the McPhee Lease; and
the cost to Perpetual of work to instal racking for 6,000 pallets on the premises, defined in the Agreement for Lease as “Landlord’s Works” and in the McPhee Lease as “Landlord Installed Racking”.
The Development Agreement defines “Leasing Costs” to mean leasing costs “incurred by the Developer under clause 14.1”, including the kinds of costs or expenses described in the balance of the definition.
A definition clause drafted this way raises the question whether “including” introduces costs which go beyond those described in the first part of the definition, or whether those kinds of costs are specified for the avoidance of doubt, to make it clear that they are among the kinds of costs contemplated by the expression “leasing costs” as it appears in the first part of that definition. As an ordinary expression, “leasing costs” does not have precise bounds. As a commercial matter, one can readily understand them comprehending agents’ fees, incentives, bonus fees, legal costs and registration fees. The more natural way to read the words from “including” to the end of the sentence is that they make it clear that these kinds of costs are “leasing costs”. Understood this way, those costs must still be “incurred by [Larapinta] under cl 14.1”.
As for incentives, as Perpetual’s expert explained, an incentive is offered to a prospective tenant to induce it to enter into the lease on the terms the landlord is prepared to offer. This evidence was adduced, without objection, for the specific purpose of informing the Court as to industry practice to aid in the proper construction of the contract. Understood in this light, incentives might readily be regarded – as a commercial matter – as being a “leasing cost”, but it is precisely the sort of cost that the parties might specify for the avoidance of doubt, given that it is not obvious that “leasing costs” would include incentives.
It follows that, in order to be Leasing Costs, the costs including incentives must be incurred by Larapinta “under clause 14.1”. I have considered Perpetual’s argument that “incentives payable under the New Lease” extend to incentives incurred by Perpetual, because incentives in any New Lease will, of their nature, be incurred by Perpetual. I am not persuaded that this is so. Clauses 14.1(3) and (4) are both drafted in a manner that contemplates Larapinta itself contracting with a lessee or purporting to consent to a lease. That is explicit in cl 14.1(3). As for cl 14.1(4), it is drafted on the basis that Larapinta may be in a position to “consent to [a] New Lease”, and that if this occurs then *’* consent will not be required if the Minimum Requirements are satisfied, but Perpetual’s consent will be required if the Minimum Requirements are not satisfied.

Whether “incentives” include the incentive given in the Incentive Deed or the Landlord Installed Racking

This issue only arises if I am wrong in my conclusion about cl 14.4(2) and my view that the incentives claimed by Perpetual fall outside the definition of “Leasing Costs”.
I am not persuaded by Larapinta’s alternative argument that the 15% incentive fell outside the scope of “Leasing Costs” because it is recorded in a separate agreement of the same date, the Incentive Deed, and is therefore said not to be “under the New Lease”. In light of the commercial purpose I have discerned in the text of cll 14.1 and 14.2, I would not read the expression “under the New Lease” so narrowly. The Incentive Deed is expressly stated in its recitals to be “supplemental to the Lease”. The incentive was provided for in the Agreement for Lease which was struck prior to the Completion Date. Were it necessary to decide, I would take the view that the incentive offered under the Incentive Deed is an incentive payable “under” the McPhee Lease for the purposes of cl 14.
As for Perpetual’s agreement to instal racking for 6,000 pallets, I do not accept that is an “incentive” as the expression is used in the definition of “Leasing Costs”. In reaching this view, I have taken into account the evidence of Perpetual’s expert that “incentives” might include works undertaken by a landlord to fit out premises for the tenant’s specific business needs. It may well have made the lease more attractive to the tenant, but it also involved what appear to be capital works for the benefit of the property. It is not described as an incentive in any contractual material. Clause 4.2 of the Agreement for Lease specifically provided that the racking was and would remain Perpetual’s property. Clause 17.3 of the McPhee Lease similarly provided that the racking must be left in situ at the end of the term of the lease. In those circumstances, I do not accept that these works were an “incentive under the New Lease” even if the McPhee Lease were a “New Lease” for the purposes of cl 14.1.

Other costs claimed by Perpetual as “Leasing Costs”

The other two costs claimed by Perpetual in reliance on cl 14.1(2)(a) are:
invoice dated 28 February 2022 from CBRE to Perpetual in respect of “Commission payable to CBRE” ($221,888.88 excl GST); and
invoices from Lander & Rogers in respect of work associated with the preparation of the Agreement for Lease, Lease and Incentive Deed ($25,108.79 excl GST).
The latter can be dealt with briefly. Lander & Rogers is the firm of solicitors retained by Perpetual. It follows from my reasoning above that legal costs incurred by Perpetual are not “leasing costs incurred by [Larapinta] under clause 14.1”. They fall outside the definition of “Leasing Costs”.
The fees charged by CBRE are in a more difficult category. The dealings between Perpetual and CBRE are summarised above.
Mr Heck did not explain the basis on which he requested and approved CBRE issuing an invoice to Perpetual for its fee. The natural inference is that it was because he regarded Perpetual as the proper obligor and not one of the other interested parties. The circumstances in which CBRE came to reverse its invoice to Perpetual and issue one to Larapinta on 20 April 2023 are unexplained. Both this reversal of invoice and CBRE’s subsequent letter of 31 May 2023 were prepared in the context of anticipated or actual litigation between Perpetual and Larapinta about the scope of Larapinta’s liability under cl 14. Although Mr Heck gave affidavit evidence about CBRE’s invoices and its letter of 31 May 2023, it only emerged in cross-examination that CBRE issued the February 2022 invoice to Perpetual at his request and with his approval. I make no adverse findings against Mr Heck, but Perpetual bears the burden of proving that the fees claimed by CBRE are in fact costs “incurred by [Larapinta] under cl 14.1”. This requires me to feel, on the balance of probabilities, “an actual persuasion” that this is the case: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 per Dixon J.
The evidence discloses that there were dealings, which have not been fully explained, between CBRE and Perpetual (or Perpetual’s manager, CapitaLand). Larapinta was excluded from, or not involved in, those dealings. Those dealings between CBRE and Perpetual’s manager form part of Perpetual choosing “to carry out its own leasing activities” as contemplated by cl 14.2. As I have set out above, the lease that was in fact entered into was a result of those activities. The lease may also have been a result of Larapinta*’*s leasing activities, but that does not resolve the question of whether the fees claimed by CBRE are fees “incurred by [Larapinta] under cl 14.1” within the definition of “Leasing Costs”.
Perpetual chose to present a case based on evidence that included no explanation for any of:

Larapinta’s liability to pay the Coupon Amounts

At the beginning of the hearing before me, Larapinta confirmed that it did not seek to be heard against Perpetual’s claim for the Coupon Amounts.

Conclusion

It follows that Perpetual:
is not entitled to any amount by way of Rent Guarantee or Leasing Costs, other than $50,000 (to the extent that this amount has not already been accounted for between the parties); and
is entitled to the Coupon Amounts.
In its cross-claim, Larapinta sought declaratory relief to make it clear that the only amount Larapinta is obliged to pay any amount above $50,000 by way of Rent Guarantee. While I see force in granting that declaratory relief, I have not yet heard from the parties as to the appropriate form of orders. I will hear the parties further as to whether any other relief sought in the cross-claim is appropriate in light of my conclusion as to the operation of cl 14.2.
I make the following orders:
Direct the parties to confer and send to my chambers within 14 days a form of any orders which the parties agree should be made to give effect to my reasons, and any costs order which the parties agree should be made;
If there is a dispute between the parties about any proposed orders (including as to costs), then by the same date each party is to serve and send to my chambers:

(a) the form of contested orders which it seeks; and (b) submissions of no more than 5 pages stating the basis on which those orders sought and indicating whether the party seeks an oral hearing; and

If contested orders and submissions are served in accordance with order 2, then within 7 days each party is to serve and send to my chambers any submissions in response, such submissions to be no more than 5 pages.
Following receipt of those submissions, I will either determine any disputes on the papers and make final orders, or I will list the matter for further hearing before me.

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Amendments

18 March 2026

Coversheet - Catchwords String 2 Line 1 - double quotation marks added around "Rent Guarantee"

Perpetual Corporate Trust Ltd atf the Ascendas Longbeach Trust No. 10 v Larapinta Project Pty Ltd atf the Kiora Trust

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