Rock Bottom Fashion Market P/L & Ors v HR & CE Griffiths P/L [1998] QCA 33

I have considered two objections to my conclusion. One is that cl. 3 provides, among other things, that the guarantors' obligations are not affected by any "variation of any of the terms of the said Lease including any . . . extension of the Lease term by agreement between the Lessor and the Lessee or any holding over . . .". The purpose of this clause is to contract out of the position under the general law, that the surety may be discharged by a variation in the terms of the principal obligation. If, as cl. 12 seems to intend, the guarantee covers only the period of occupation as lessee, then it is hard to see what could be the effect of providing that holding over should not affect the guarantor's liability. On the other hand, the drafter might have had in mind holding over with assent.

A second objection is that cl. 12 does not say that the guarantee is confined to the period mentioned in it - i.e. the statement of that period may not be exhaustive. This is based on the notion that all cl. 12 is intended to achieve is to make clear that not only possession under the lease itself, but any other possession as lessee, is covered - without excluding the possibility of covering periods when there is possession otherwise than as lessee. But to achieve that result rather different drafting would have been appropriate. On the face of it the clause defines the period during which the guarantee operates and the expression "occupies or is entitled to occupy the demised premises as the Lessee" is inconsistent with an intention to cover a period when there is occupation otherwise than as lessee, and while the occupier is not entitled to occupy.

One must at least suspect that what seems to be the natural reading of cl. 12 is not that which was intended; commercially, it is hard to imagine why the limitation which the clause seems to express should have been agreed. But it is unorthodox to strain the language of a guarantee against the guarantor and I would therefore hold that the second appellants are entitled to succeed in their appeal, resulting in orders other than those proposed by Dowsett J.

With respect to the first appellant, I entirely agree with Dowsett J.'s reasons.

At the hearing of the appeal the male second appellant ("Mr Innes") appeared for himself and the female second appellant, his wife ("Mrs Innes"). The first appellant is in liquidation, Mr G. Bendeich being the liquidator. Mr Bendeich appeared to inform the court that the company was without funds and that he did not wish to proceed with the appeal. He had, prior to the hearing, signed an order consenting to its dismissal. Mr Innes sought an order pursuant to s. 471A(1)(d) of the Corporations Law approving his conducting the appeal on behalf of the first appellant. This application was opposed by the respondent. When a company is in liquidation, an officer of the company may exercise his or her functions or powers only with the approval of the court. Mr Innes may appear for the first appellant only if authorized to do so by that company. I assume that the application is effectively an application for approval of a proposed resolution of the board authorizing Mr Innes to so act.

Decisions as to current litigation involving a company in liquidation are generally for the liquidator, whose duty is to make a commercial decision having regard to the interests of creditors and shareholders. A court will not lightly interfere in such matters, nor will it generally permit officers of the company to do so. Although the basis of Mr Innes's application is not entirely clear, it appears to be that the second appellants' appeal will involve a consideration of the first appellant's liability to the respondent. It is also submitted that the first appellant is in liquidation only because of the respondent's judgment against it, and that any opportunity to challenge that judgment should be exploited. Mr Innes offers to meet the costs of the appeal, although it is not clear whether this includes any order made in favour of the respondent in the event that the appeal fails. There is also no evidence as to Mr Innes's financial position. The court initially refused the application. At a later stage, that order was vacated, and the matter was reserved for consideration with the merits of the case as a whole.

The respondent is the registered proprietor of certain commercial premises known as "Arcadia Walk" at Noosa Junction. On 1 November 1995, it leased part of those premises to the first appellant for a term expiring on 31 October 1996, with three options to renew, each for a period of three years. The second appellants gave a guarantee in favour of the respondent, securing the performance of the first appellant's obligations under the lease. A dispute arose as to whether or not the first option had been validly exercised. On 1 November 1996, the respondent commenced proceedings against the first appellant to recover possession and mesne profits upon the basis that it had not been exercised, also claiming mesne profits from the second appellants under the guarantee. The respondent applied for summary judgment against the first appellant and Mrs Innes. At that stage, Mr Innes had not appeared to the writ. The summons was later amended by Williams J. to allow the respondent to seek summary judgment against him. Proceedings on the summons before Thomas and Williams JJ. appear to have been conducted at all times as if Mr Innes were a respondent thereto.

The matter first came before Thomas J. in chambers. The appellants raised a preliminary question going to the jurisdiction of the court. They asserted that as a relevant dispute notice had been given pursuant to the Retail Shop Leases Act 1994, proceedings in the Supreme Court were barred. Thomas J. decided against the appellants on that point, but did not dispose of the substantive issues arising out of the summary judgment application. The matter was adjourned and came on before Williams J. in chambers. His Honour granted summary judgment against all three appellants. They seek to appeal against both "decisions", but clearly, there is no order emanating from the decision of Thomas J. which can be the subject of an appeal. It is the order made by Williams J. which is properly the subject of appeal, although it may be attacked upon the basis of want of jurisdiction as well as upon other grounds.

The challenge to jurisdiction arises from the fact that on 30 October 1996, the day before the expiry of the lease, a document was filed with the Chief Executive of the Department of Business Industry and Regional Development. The document purported to be a dispute notice pursuant to the Retail Shop Leases Act, notifying a dispute between the first appellant and the respondent. It recited that:-

"The claimant shall seek the repayment by the respondent of the moneys expended in preparing the tenancy for rental, and the completion of rectification works omitted by the respondent, and due valid renewal of the first option under the lease."

It further asserted that certain works were performed by the "claimant" (the first appellant in these proceedings) which the "respondent" (the respondent in these proceedings) ought to have performed, that there had been an agreement between the parties to vary the terms of the lease as to payment of rent, and that the option had been validly exercised. In effect, the appellants submit that s.94 of the Retail Shop Leases Act precludes the further conduct of this action. That section provides:-

"(1) On and after the lodgment of a dispute notice for a retail tenancy dispute, the dispute must not be referred to arbitration or heard by any court.

(b) a proceeding about the issue in dispute was started in a court before the dispute notice was lodged and the proceeding has not been removed to a tribunal; or

(c) an application for an order in the nature of an injunction about the issue in dispute is made to a court; or

(d) a mediator or tribunal refuses to mediate or hear the dispute because the mediator or tribunal is of the opinion the dispute is not within the jurisdiction of a mediator or tribunal; or

(e) the mediator cannot reach a solution to the dispute and a tribunal does not have jurisdiction to hear the dispute.

(3) For subsection (2)(b), a proceeding is taken to have been started before a court if the lessor has -

(a) served on the lessee a notice under section 124 of the Property Law Act 1974 (Restriction on and relief against forfeiture); or

(b) given to the lessee a notice under section 131 of the Property Law Act 1974 (Form and contents of notice)."

The "tribunal" referred to in the section is a retail shop lease tribunal constituted pursuant to the Act.

Although s. 94(1) would seem to prohibit proceedings in the action after lodgment of the dispute notice, the issue is not as clear as it appears. Three other sections, ss.109, 110 and 111 are also relevant. In any event, the dispute of which notice was given was between the respondent and the first appellant. Even assuming that further court proceedings concerning that dispute were barred, it does not follow that proceedings between the respondent and the second appellants were similarly barred. As Thomas J. observed, those proceedings arose out of the guarantee. The definition of "retail tenancy dispute" (contained in s.5 of the Act) is as follows:-

"`Retail tenancy dispute' means any dispute under or about a retail shop lease, or about the use or occupation of a leased shop under a retail shop lease, regardless of when the lease was entered into."

I can see no justification for extending the operation of the dispute procedure under the Act to include a dispute arising under a guarantee, but as the dispute between the respondent and the second appellants has never been the subject of a dispute notice under the Act, it is not necessary to decide that question. There having been no such dispute notice, Williams J. was correct to assume jurisdiction over the claim against the second appellants, notwithstanding that in deciding it, his Honour had to address the subject matter of the dispute between the respondent and the first appellant. It is generally preferable that, if possible, all associated matters in dispute be decided in one court or tribunal and at the same time, but that such a course has not been followed in a particular case will not, by itself, generally lead to the reversal of a decision made within jurisdiction. It does not lead me to conclude that we should upset the present judgment as against the second appellants. Whether or not the claim against the first appellant was also within jurisdiction may conveniently be left for consideration after the determination of Mr Innes's application for approval of his prosecuting the first appellant's appeal. That question, in turn, will be best determined after a consideration of the second appellants' appeal which raises the same substantive issues.

Numerous grounds of appeal appear from the notice of appeal and outlines of argument. To the extent that such grounds are not in the notice of appeal, leave to amend will be necessary should the court consider that any ground has merit. I will firstly try to summarize the various complaints (excluding those as to jurisdiction already disposed of). They are:-

(a) That the matter was not one which was appropriate for summary judgment;

(b) That Mrs Innes was not bound by the terms of the guarantee because it was "a gender- specific document which precludes the feminine gender";

(c) That the lease had not expired by effluxion of time and that the guarantee was discharged by the "removal of permission to occupy from the lessee by the lessor";

(d) That the option was validly exercised or that the respondent had waived compliance with the conditions of exercise;

(e) That s.46 of the Retail Shop Leases Act conferred an independent right of option;

(f) That the court did not entertain an application to transfer the matter to the tribunal;

(g) That the appellants were denied an opportunity of transferring the proceedings in the tribunal to the court;

(h) That liability under the guarantees did not attach because the claimed mesne profits arose not from the lease, but from the first appellant's position as possessor of the premises after expiry of the term;

(i) That the covenant under the guarantee was not enforceable because of the expiry of the lease;

(j) That the appellants did not receive sufficient notice of the intention of Williams J. to deliver judgment; (Apparently Thomas J. had indicated that they would receive at least 48 hours notice of his intention to deliver judgment. The appellants complain that they received less than 24 hours notice that Williams. J. was to deliver judgment. We were told that they did not appear to take judgment.)

(k) That the decision of Williams J. was "tainted and inappropriate and therefore should be overturned", apparently because his Honour was allegedly influenced in giving his decision when he did, by the fact that a hearing was to take place in the tribunal;

(l) That the appellants were not heard by Williams J. on the issue of jurisdiction, were not heard at great enough length and were not heard on the issue of costs;

(m) That the first appellant could not have exercised its option during the month of July 1996 and within the time specified in the lease because "its rent was in arrears";

(n) That there was non-compliance with s.128 of the Property Law Act;

(p) That ss. 131, 132 and 135 of the Property Law Act 1974 were in some way breached;

(q) That the Noosa Magistrates Court had exclusive jurisdiction in the matter;

I will not deal with all of the grounds individually but will rather group them together when appropriate.

The appellants rely upon three events, each said to constitute exercise of the option. The first is a letter dated 30 January 1996. The second is a telephone conversation said to have taken place on 1 February 1996. The third is a letter dated 26 August 1996, which the respondent denies receiving, although a copy was forwarded to its solicitors on 26 September 1996 under cover of a letter dated 25 September 1996.

If the Lessee shall desire to take a renewed lease of the demised premises for a further term ... the Lessee shall give to the Lessor not more than six months nor less than three months previous notice in writing of such desire AND PROVIDED the Lessee is not then in default under the provisions of this lease that are expressed or implied the Lessor will at the cost and expense of the Lessee grant to the Lessee a renewal of this lease for such further term at a rental to be determined in the manner set out in Table A hereto and otherwise upon the same terms and conditions as are herein contained except this clause."

The option was to be exercised in writing, not earlier than six months nor later than three months prior to the date of expiry of the original term. That term expired on 31 October 1996, and so the notice was to be given not earlier than 30 April and not later than 31 July.

The letter dated 30 January 1996 was to Mrs Griffiths, a person associated with the respondent. It relevantly said:-

"We are pleased with our location so it would appear at this stage that we shall be your tenants for another 6¾ years."

This was obviously nothing more than an assertion of an expectation that the first and second options would be exercised. Further, the letter was not within the time frame prescribed by the section and so, as his Honour held, could not have been an effective exercise of the option. The telephone conversation of 1 February 1996 was allegedly between Mrs Griffiths and Mr Innes. The content appears in the affidavit of Mrs Innes. She claims to have overheard the conversation and said that in the course of it, Mr Innes told Mrs Griffiths that the company wished to exercise "both of its options to renew the lease". This purported exercise (if it occurred) was not in writing and was not within the prescribed time frame. The letter of 26 August 1986 (even assuming its receipt on that date) was also outside of the relevant time frame and so could not have constituted a valid exercise of the option. The conclusion reached by Williams J., that the option had not been validly exercised, was correct.

On appeal, the appellants sought to assert waiver by the respondent of its entitlement to strict compliance with the terms of the option clause or estoppel, but it is clear from his Honour's reasons that neither argument was advanced at first instance. It is not appropriate to allow the appellants to raise such matters on appeal.

The respondent asserts that the second appellants are obliged under the guarantee to meet the first appellant's liability for "mesne profits". This question is somewhat difficult, and I infer from the fact that Williams J. did not refer to it in his reasons, that it was not canvassed below. However on appeal, the point was ventilated on behalf of the appellants without objection on the part of the respondent. The guarantee relevantly provides:-

"1. That (the guarantor) will be jointly with the Lessee and each other Guarantor (if any) and severally liable to the Lessor for the due and punctual performance and observance of all the terms, covenants and conditions on the part of the Lessee expressly contained or implied in the said Lease and in particular that he will be liable for the payment of all moneys from time to time payable by the Lessee to the Lessor under or in connection with or as a result of the said Lease including rent, operating expenses, amounts indemnified, damages resulting from breaches of this Lease and otherwise.

8. This Guarantee extends to claims by the Lessor for damages for breaches of Lease covenants, for breaches of any essential terms of the Lease and for repudiation of the Lease or Agreement for Lease and to the Lessor's reasonable legal and other expenses of seeking to enforce those obligations against the Lessee or of recovering possession and of terminating the Lease.

9. This Guarantee extends to the Lessor's loss or damage in the event of the Lessee abandoning or vacating the leased premises and also in the event of the Lessor electing to re-enter or to terminate the Lease, including for the Lessee's repudiation of the Lease.

10. The Lessor shall be entitled to require the Guarantor under this Guarantee to pay to the Lessor any outstanding rent or other amount or to compensate the Lessor for any loss or damage under the Lease without the Lessor being required to institute any proceedings against the Lessee in respect of such claims or breaches.

12. This Guarantee and Indemnity covers the whole period whilst the Lessee (or any Assignee) occupies or is entitled to occupy the demised premises as the Lessee, whether pursuant to the said Lease or any extension thereof or whilst holding an equitable interest over the demised premises under an Agreement for Lease or as a periodical tenant or otherwise."

Mesne profits are damages for trespass. (See Halsbury's Laws of England (4th Ed.) Vol. 27 para. 255.) It is difficult to see how the second appellants can be liable to indemnify the respondent for mesne profits recoverable from the first appellant. Mesne profits cannot be described as "moneys payable by the lessee to the lessor under or in connection with or as a result of the said lease..." pursuant to clause 1. Mesne profits are allegedly payable because the lease expired but the first appellant remained in possession as a trespasser. It also cannot be said that mesne profits are recoverable under clauses 8, 9 or 10 of the guarantee and indemnity. Although clause 12 is not without its difficulties, the parties did not address detailed argument to its construction. The better view is that it is concerned only with the temporal duration of the guarantee, extending that duration to include:-

(a) the period during which the lessee occupies or is entitled to occupy the premises pursuant to the lease or any extension thereof; and

(b) the period during which the lessee holds an equitable interest under an agreement for lease or as a periodic tenant or otherwise.

The operational extent of the guarantee is otherwise to be determined by reference to clauses 1, 8,9 and 10. In my view the guarantee does not extend to secure the payment of mesne profits.

The respondent advances an alternative basis for its claim as against the second appellants. Pursuant to clause 15.1 of the lease:-

"The lessee shall at the expiration or sooner determination of the term hereof peaceably yield up the demised premises in the order and condition required by clause 6.8 hereof."

Whilst it may be that this clause is more concerned with the order and condition of the premises than with creating an obligation to deliver (which is arguably unnecessary), it nonetheless creates such an obligation. In this respect, the lease obviously continued to have contractual effect after the expiry of the term. By remaining in possession after such expiry, the first appellant was in breach of this provision. As the second appellants had undertaken to secure the performance of the first appellant's obligations under the lease, they were in breach of the terms of their guarantee. Pursuant to clauses 1 and 8 of the guarantee, they are liable to pay to the respondent the amount of damages payable by the first appellant for such breach.

The practice in connection with claims for mesne profits is to allow them at the same rate as was being paid under the lease. This appears to have been the basis of the respondent's claim in the present case and upon which the judgment was given. Authority for this course appears in Atkin's Court Forms (2nd Ed.) Vol. 24 at para 22:-

"Mesne profits are assessed on the basis of the value of the premises at the time. If they are claimed on the basis of the rent payable under the lease no proof of value need be given. If, however, the landlord claims that the rent does not reflect the current value, he may claim at a higher rate; but he should aver in his pleading what he alleges is the annual value of the premises and must be prepared to prove it."

In Halsbury (op. cit.) the following passage appears:-

"The landlord may recover in an action for mesne profits the damages which he has suffered through being out of possession of the land or, if he can prove no actual damage caused to him by the defendant's trespass, the landlord may recover as mesne profits the amount of the open market value of the premises for the period of the defendant's wrongful occupation. In most cases the rent paid under any expired tenancy will be strong evidence as to the open market value."

"In the vast majority of cases in which mesne profits are claimed, they are awarded, if at all, at the rate of the previous rent; and as a rule of practice, if not of law, it can be taken as being the case that the burden lies upon a party who argues for a different rate for mesne profits (whether higher or lower) to adduce evidence to rebut the inference arising from any reasonably recent rack rental transactions."

In other words, on a claim for mesne profits, the owner may rely upon the rent under the expired lease as proof of the measure of damages. There is no reason why the same approach should not be taken in assessing the damages payable by a tenant who remains in possession in breach of a covenant such as clause 15.1. See the decision of the Court of Appeal in Associated Dairies Ltd v. Pierce [1983] Estates Gazette Digest 383. The judgment below, as against all appellants, is for mesne profits. It follows from what I have said, that although this outcome is open as against the first appellant, it is not an available basis for judgment against the second appellants. Before us the respondent sought to support that judgment upon the somewhat different basis which I have explained above. The second appellants did not object to the respondent doing so, and there is no basis upon which they could reasonably have done so. On either basis, the claim as against the first appellant is for the same amount, whether as damages for breach of contract or as mesne profits (damages for trespass). Under the guarantee, the second appellants are liable only for the former. The respondent's claim for those damages is made out on the material, and there is no doubt that all parties were and are aware of the precise factual basis upon which the claim is made. Its legal characterization was of no significance to the parties in arguing the case. The formal order should be amended to make it clear that the judgment against the second appellant is not for mesne profits.

The second appellants raise a number of other arguments said to affect the validity of the judgment below. I will deal briefly with them.

It is submitted that the matter was not appropriate for summary judgment, however no relevant factual dispute appears from the material. Certain of the appellants' factual assertions concerning the exercise of the option may be disputed by the respondent, but those matters were assumed in the appellants' favour for the purposes of the application. It is also asserted or implied that the case involves difficult legal questions, but the decision of the High Court in Theseus Exploration N.L. v. Foyster [1972] HCA 41; (1972) 126 CLR 507 makes it clear that such difficult questions do not deprive the court of the jurisdiction to decide them and grant summary judgment. At p. 513, Barwick C.J. said:-

"The appeal is from an order of a judge of the Supreme Court dismissing a summons for summary judgment. Although he gave no reasons for that dismissal, it is evident that the judge was satisfied that there was a question in dispute with respect to the appellant's claim which ought to be tried. Clearly enough the appellant's proof in support of its application for summary judgment made out all the ingredients of its cause of action.

"Although I have reached a clear conclusion as to the lack of validity in the respondent's submission that the appellant was unable to recover the amount claimed, I would not be prepared to hold that the judge erred in the course he took. Equally, however, I would not have thought him in error if he had granted the applicant's application for summary judgment. The case was one which, in my opinion, could have been disposed of upon legal argument upon the application. But it was for the judge to be satisfied that there was a matter to be tried. Whilst there were no facts to be decided, it was open to the judge, in my opinion, to take the view that the extent and complexity of the matters of law and of argument thereon warranted a hearing.

However we have now heard a full argument on the substance of the matter from both appellant and respondent. I am convinced that the suggested defence fails and that the appellant is entitled to judgment in the action. Thus, although I would not hold the dismissal of the summons for summary judgment to be erroneous, I would allow the appeal and now grant that application."

Complex legal questions do not deprive the court of jurisdiction to grant summary judgment.

It is said that because the guarantee uses the pronoun "he" Mrs Innes is not liable thereunder, although she is clearly a party to it.

Section 48(1) of the Property Law Act 1974 provides that:-

"In all deeds, contracts, wills, orders and other instruments executed, made or coming into operation after the commencement of this Act, unless the context other requires -

(d) The masculine includes the feminine and vice versa."

Section 46 of the Retail Shop Leases Act

It is said that the first appellant was entitled to an option pursuant to s.46 of the Retail Shop Leases Act.

Section 46 (1) provides:-

"This section applies if a retail shop lease (the `existing lease') does not provide for an option on the lessee's part to renew the lease."

The section then provides that a lessee may ask a lessor to renew the existing lease for a specified period. Such notice must be given at least two months, but not longer than one year before the end of the existing lease. It seems clear that this section cannot apply in the present circumstances because the lease contains three options to renew. However the appellants submit that s.46 applies to this lease notwithstanding the fact that it contains express option provisions. I need not explain the complex process which is said to lead to this conclusion but the submission is dependent upon the term "existing lease" in s.46 having the same meaning as the term "existing retail shop lease" as defined in s.5 of the Act. One would normally infer that the use of distinctly different terms indicates an intention to convey distinct meanings and there is good reason for so inferring in this case. The term defined in s.5 is clearly intended to be part of the transitional provisions associated with the introduction of the legislation. The term, in effect, applies only to leases or agreements for lease created before the commencement of that section. The term "existing lease" in s.46 is found only in that section and is used to identify the subject matter of the right of renewal conferred by the section. Such a lease need not have been entered into prior to the commencement of s.5, however it must contain an option to renew. The terms are not synonymous. The present lease is not an existing lease for the purposes of s.46 because it contains options to renew. It is not necessary to consider the balance of the argument. I respectfully adopt the more detailed reasoning of Williams J. in this respect.

Section 128 of the Property Law Act

The appellants submit that the first appellant is entitled to seek relief under s. 128 of the Property Law Act, presumably from the consequences of its failure to exercise the option in the way prescribed in the lease. I agree with the conclusion reached by Williams J. that the section does not permit relief of this kind. Section 128(1)(b) appears expressly to exclude from the benefit of the section a breach of the option provision in question. That sub-section provides:-

"A reference to a breach by a lessee of the lessee's obligations under a lease containing an option is a reference to a breach of those obligations by an act done or omitted to be done before or after the commencement of this Act insofar as the act or omission would constitute a breach of those obligations if there were no option contained in the lease."

Thus, a breach of the lessee's obligations under a lease for the purposes of the section must consist of conduct which would constitute a breach if there were no option provision in the lease. In other words, for the purposes of the section, one must exclude the option provision in determining whether or not there has been a breach. There can therefore be no relief from the consequences of failing to comply with the provisions of the option.

It was suggested (or hinted) that the first appellant could not have exercised its option at the prescribed time because the rent was then in arrears. It may be that had it exercised the option at that time, s.128 would have afforded relief, but the first appellant did not exercise the option.

Numerous grounds of appeal depend upon the assertion that the appellants were entitled either to have the matters in court sent to the tribunal or the matters in the tribunal sent to the court. Section 111 of the Retail Shop Leases Act provides for such transfers, but the matter is within the discretion of the court or tribunal. An appellate court will not lightly intervene in the exercise of such a discretion, especially if such intervention involves the setting aside of a judgment which is manifestly correct and within jurisdiction. The respondent was entitled to sue the second appellants in the Supreme Court. If the subject matter of that claim was within the jurisdiction of the tribunal, (which I doubt), the appellants might have sought a transfer under s. 111, but it is not clear that they did so. Even assuming that in their favour, it has not been demonstrated that Williams J. erred in not acceding to such application. It may have been open to the appellants to seek to transfer the proceedings in the tribunal to the court, but so far as I can see, they did not do so. There is no substance in these complaints.

Other Grounds Relating to the Question of Renewal of the Lease

Numerous grounds assume that the lease was renewed or that compliance with the conditions for exercise was waived. For reasons already given, neither assumption is justified.

The appellants complain that they received less than sufficient notice of the intention of Williams J. to deliver judgment. We were told that they did not appear, although they seem to concede that they received some notice. The complaint is based upon the fact that Thomas J. had indicated that he would give the parties 48 hours' notice of his intention to deliver judgment. Obviously, his Honour's indulgence did not bind Williams J.. The appellants were entitled to reasonable notice but not to any particular period of notice. There is no evidence of any prejudice as a result of the alleged shortness of notice.

It is suggested that the decision of Williams J. was "tainted and inappropriate and therefore should be overturned." This submission is based upon a perception that his Honour expedited the delivery of judgment because of pending proceedings in the tribunal. I am at a loss to understand how his Honour's attempts to meet the convenience of the litigants can be so misconstrued.

The appellants complain that Williams J. did not hear argument on jurisdiction. That matter had been canvassed before Thomas J., and Williams J. was satisfied to accept his Honour's decision and reasons. Perhaps it was unfortunate that the resolution of the matter was fragmented in this way, and it may be strictly correct to say that Williams J. was, in any event, obliged to satisfy himself as to the issue of jurisdiction. The appellants' written outline of argument before Williams J. is included in the record. The question of jurisdiction was dealt with there. His Honour expressly adopted the reasoning and conclusions of Thomas J. In those circumstances, it is difficult to see any basis for this complaint. In any event, the issue has been fully ventilated on appeal and in my view, at least as concerns the second appellants, it was correctly decided below.

Division 4 of Part 8 of the Property Law Act

Some attempt was made to rely upon the provisions of ss. 131, 132 and 135 of the Property Law Act. Clearly, these sections relate to periodic tenancies and other tenancies determinable on notice. They have no relevance for present purposes.

The appellants complain that the summary ejectment provisions prescribed in Division 5 of Part 8 of the Property Law Act in some way deprive the Supreme Court of jurisdiction in this matter. That has never been the view taken of summary ejectment proceedings, nor is there anything in the Act to suggest that it is so. There is nothing in this submission.

The appellants complain that the guarantee was not executed under seal. Section 45(2) of the Property Law Act deems the document to have been sealed.

The appellants complain that the respondent is shown in the Register of Titles as holding the premises in question as a trustee. There is no reason why this should affect the validity of the judgment. In the course of argument, it also emerged that the appellants wish to rely upon this fact as evidence of misleading or deceptive conduct on the part of the respondent. The suggestion is that the appellants believed that the lease was to be taken from Mrs Griffiths personally, although the lease clearly shows the respondent to be the lessor. Such a misrepresentation as to the identity of a potential lessor might conceivably constitute misleading or deceptive conduct in some cases, but there is nothing in the material to suggest that the present appellants have any claim arising out of whatever confusion they may have experienced in this regard. The court has already refused leave to amend to raise this new ground of appeal.

The appellants allege that they were allowed only seven or eight minutes to present their arguments before Williams J. The factual basis of this allegation does not appear from the record. His Honour had the benefit of written outlines from both sides and seems to have been seised of the relevant issues. In any event, the second appellants have now had more than adequate opportunity to argue all of their points before us. A mere assertion that they had only seven or eight minutes to do so at first instance, without any evidence as to the circumstances alleged to have led to that outcome, would not justify us in upsetting the judgment.

There was some attempt to argue that the tribunal had conclusively determined that it had jurisdiction in the matter and that this excluded jurisdiction in the Supreme Court. As I have previously observed, the tribunal was not seised of any dispute between the respondent and the second appellants and did not find that it was so seised. For present purposes, this argument has no point.

There is no basis for upsetting the judgment against the second appellants. Their appeal should be dismissed, save to the limited extent necessary to vary the order as to mesne profits.

The second appellants also challenge the order for costs made against them below. This does not appear from the notice of appeal but was mentioned in the written submissions. If the argument is to succeed, the notice of appeal must be amended. There are two complaints :-

(a) That they were not heard on the question of costs;

(b) That the matter could have been heard in the District Court or Magistrates Court or in a tribunal (where no order for costs may be made) and that the order ought to have reflected these considerations.

For the sake of appearances, I should say that the first complaint appears to arise from the fact that Williams J. included the order for costs in his written reasons, This is a common practice with reserved judgments. Such an order is really provisional in the sense that if the parties wish to make submissions after publication of the judgment, they may do so. The proposed order may be varied if the submissions indicate that outcome. Unfortunately, when a party is unrepresented, the practice may create a perception that he or she has not had an opportunity to be heard on the question of costs. The appellants were not denied a right to be heard on the question of costs. Had they appeared to take judgment and sought to be heard, Williams J. undoubtedly would have heard them.

In seeking to appeal against the order as to costs, the appellants must overcome the problem posed by Section 253 of the Supreme Court Act 1995 which provides:-

"No order made by any judge of the said court by the consent of parties or as to costs only which by law are left to the discretion of the judge shall be subject to any appeal except by leave of the judge making such order."

Pursuant to Order 91, Rule 1, the costs in this case were within the discretion of

Williams J.. This court held in Schonnecht v The Golden Casket Art Union Office (unreported - C.A. No. 94/480 - judgment delivered 11 November 1994) that the section barred an appeal against an order as to costs only, even when brought in conjunction with appeals against other orders. As far as I can see, there has been no application for leave to appeal. In those circumstances, I would not give leave to amend the notice of appeal to add an appeal against the order as to costs. However, as concerns the second appellants, the appeal against the substantive order has been successful to a limited extent and so the issue of costs must, in any event, be considered. That should be done in conjunction with consideration of the costs of the appeal.

It follows that the appeal by the first appellant, based upon the grounds canvassed above, would also fail if prosecuted. However I have not disposed of the first appellant's challenge to the court's jurisdiction based upon s.94 of the Retail Shop Leases Act. If Williams J. was without jurisdiction, then the first respondent is entitled to insist that the judgment against it be set aside. This would result in a curious outcome. If the matter were subsequently dealt with in a tribunal, the tribunal would be legally bound to reach the same decision as Williams J.. In fact, the matter cannot now go to a tribunal because proceedings under the Retail Shop Leases Act have been discontinued. If the appeal were allowed, the Supreme Court action would remain on foot and, there being no extant proceedings in a tribunal, the court would retain jurisdiction. Even if a fresh dispute notice were given, it could not displace the action because the latter would be later in time. See Retail Shop Leases Act ss. 94 and 109(1)(a)(iii). Thus the matter can now only be decided in the Trial Division, and the outcome would be the same as before Williams J.

Although the first appellant may have a right to insist upon this court performing such a pointless exercise, assuming that Williams J. lacked jurisdiction, Mr Innes may only take advantage of that right if the court permits him to prosecute the first appellant's appeal. As no good purpose would be served by such officious intervention, the application pursuant to s.471A(1)(d) should be dismissed. It is therefore not necessary to decide the question of jurisdiction.

The first appellant also seeks to appeal against the order as to costs. As no part of the substantive judgment against the first appellant is to be upset, s.253 of the Supreme Court Act bars any such appeal.

(1) That Mr Innes's application pursuant to s.471A(1)(d) be dismissed;

(2) That the first appellant's appeal be dismissed;

(3) That the second appellant's appeal be allowed by:-

(a) deleting from paragraph 2 of the order of Williams J made

on 16 January 1997 the words "and Second Defendants", and

"The plaintiff recover against the Second Defendants the sum of three thousand, four hundred and seventy-two dollars and seventy cents".

As to the proceedings involving the second appellants, the respondent having succeeded in the action, it should have the costs at first instance. There is, however, a question as to the appropriate scale. Although the amount of the judgment is $3,472.70, the claim was not within the jurisdiction of the Magistrates Court as the question of the exercise of the option to renew involved title to land. See Lea v Moore [1955] 1 WLR 38. The matter was within the jurisdiction of the District Court. As to the claim against the first appellant, the claim for mesne profits was similarly within the jurisdiction of the District Court. However, as there is no evidence as to the value of the demised premises, it is not possible to say whether the claim for possession against the first appellant was within the jurisdiction of that court. It was obviously appropriate to join the claims in one action, but that, by itself, should not increase the second appellants' liability as to costs. However cl. 8 of the guarantee extends the second appellants' liability to include the respondent's costs of regaining possession. Thus the respondent could, in due course, recover from the second appellants all costs ordered against the first appellant.

In the circumstances, if costs against the second appellants are taxed on the Supreme Court scale, there will be no need for further proceedings by the respondent. Such an order would also reflect the fact that the total costs for which the second appellants will be ultimately liable have been reduced because the respondent has sued the appellants in one action rather than in different proceedings in different courts. The second appellants should pay the respondent's costs below. No special order should be made as to the scale for taxation.

As to the costs of the appeal as between the respondent and the second appellants, in view of the mistaken basis for judgment below, the appeal was, in a sense, justified. There should be no order as to the costs of the appeal as between those parties. The application under the Corporations Law was made by Mr Innes on his own behalf. He should pay the costs of that application. Should any party wish to make further submissions as to costs, he, she or it should apply to re-list the matter, such application to be made within seven days of the delivery of judgment. Otherwise, the orders should be as I have proposed.

It appears that the respondent may have reached agreement with the first appellant as to the latter's liability for the costs of the appeal. Should either party require that an order be made, it may similarly apply within seven days of publication of this decision.

I agree with the orders as to costs proposed by Dowsett J. and with his reasons.