See also the decisions of Higgins J in Leda Commercial Properties Pty Ltd v DHK Retailers Pty Ltd (1992) 111 FLR 81; the Court of Appeal in Saade v Vergados NSWCA 15 October 1996 unreported; Young J (as his Honour then was) in Christiansen v Klepac [2001] NSWSC 385; and Finn J in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1 at [359].
11 The onus of proof that the contract has been brought to an end lies on the party alleging the termination: J Kitchen & Sons Pty Ltd v Stewart's Cash and Carry Stores (1942) 66 CLR 116 per Latham CJ and Mc Tiernan J at 126.
12 I turn specifically to occasions (i) to (vi) set out in 4 and (b) above, on which acceptance of the repudiation is respectively alleged to have occurred.
13 As to occasion (i) (6 March 2002), what is relied on is an inquiry on behalf of the plaintiffs as to whether the first defendant intended to remove its property and accepted its obligation to make good the premises. The first defendant submitted that the making of those inquiries, some 2½ years before the end of the term, amounted to a communication that the plaintiffs were treating the lease as at an end. I cannot accept that this letter communicated in an unequivocal way to the first defendant that the plaintiffs regarded the lease as at an end. The first defendant would remain liable for the rent whether or not the fixtures and fittings were in the property. An inquiry as to whether the first defendant accepted an obligation to make good the premises might well be an inquiry about its attitude to that obligation at the end of the lease, whenever that end might come about, rather than an indication that the plaintiffs regarded the lease as at an end and the first defendant as under an immediate obligation to make the premises good.
14 As to occasion (ii) (12 June 2002), the evidence reveals that the signage which was to be removed was not within the demised premises, but was elsewhere in or on the shopping centre. A reply in the terms set out inquiring what access the first defendant desired to some other part of the plaintiffs' shopping centre can hardly be regarded as an unequivocal communication of acceptance of the repudiation.
15 As to occasion (iii) (7 August 2002), it might appear from the facts as stated in 4(iii) above that the change of lock had the effect of a lock out indicating the definitive exclusion of the first defendant from the premises, which might well operate as an acceptance of the repudiation. However, those facts must be viewed in the light of a deal of other evidence concerning those events (essentially undisputed except where stated otherwise). Access to the premises was through any one of four locked doors. The first defendant had been last in possession of the keys and the plaintiffs did not have any. The plaintiffs asked the first defendant for a key to gain access to the premises. The first defendant said that it could not find any. The plaintiffs then changed the lock on one door, but not on the other three. Rocky Scarcella deposed that the request for access arose from a desire to quantify damage to the premises for purposes of litigation. It was suggested that I should disbelieve his evidence, but I do not see why I should. In any event, this was what Mrs Lynam, from the managing agent, was told at the time. I found her a very straightforward witness, whose evidence I accept. The suggestion that Rocky Scarcella told her this, but knew at the time it was untrue, I find so Macchiavellian as to be far fetched. I find that the purpose of the request for a key and of the change of lock was to gain access for the purpose stated by Rocky Scarcella. It is true that a copy of the new key was not given to the first defendant, which had said it could not find any keys. But it was not forbidden to enter through the doors with unchanged locks, of which it was the last known possessor of the keys. While the changing of the lock deprived the first defendant of access to the premises through that door, the other three doors remained secured by locks, the keys to which were held not by the plaintiffs, but by or on behalf of the first defendant. The act of changing one lock did not exclude the first defendant from the premises. It may have found the keys, or had new ones made by a locksmith. In all the circumstances, the changing of one lock could not be regarded as an unequivocal act constituting acceptance of the repudiation.
16 As to occasion (iv) (13 September 2002), the requisitioning of a program for the demolition and removal of the first defendant's items remaining in the premises and making good of the premises was, again, not an unequivocal act showing acceptance of the repudiation. It simply showed the plaintiffs moving towards doing the work necessary to ready the premises for reletting when the lease did come to an end. It could not, on the face of the document, be a firm indication that the work would be done at a particular date (as indeed it was not). It does not convey a statement that the plaintiffs regarded themselves as unequivocally and immediately entitled to possession.
17 Similarly, as to occasion (v) (6 February 2003), the obtaining of a budget estimate for the doing of the work could not have the effect of an unequivocal act operating as an acceptance of the repudiation.
18 As to occasion (vi) (7 March 2003), the context of the correspondence relevant to this occasion needs to be set out a little more fully. On 5 March 2003, R G Davies, chartered accountant, wrote to CIPS informing them that he had on 15 April been appointed liquidator of Franklins Ltd in a members' voluntary liquidation. He stated that he had been advised that fixtures and fittings were still located in the store and that he wished to have these removed. He stated that he was "asking for your permission to gain access to the site". Mrs Lynam sent a copy of the letter to Rocky Scarcella, who sent it back to her bearing a handwritten note stating that "they" had to speak with him or his solicitor; "they are in default & have no access to the site". It was following receipt of that note that Mrs Lynam replied to Mr Davies that, "as Linknarf Limited (formerly known as Franklins Limited) are [sic] in default of their Lease, they have no right to access the site". Although both sides referred in terms to the second defendant, which was the holding company, there is no doubt they were intending to refer to the lease held by the first defendant. There is no evidence that the first defendant had had any access to the premises during the six months between occasion (iii) in [4] above and the time of this correspondence. Rocky Scarcella swore that he had no knowledge of the first defendant entering the premises during that time. It is not clear whether the liquidator asked for permission to access the premises because he believed he had no right to do so, or whether he simply had not been handed any keys by the companies which had gone into liquidation and believed he had no means of gaining access.
19 Mr Ventry Gray, of counsel for the plaintiffs, submitted that the letter of 7 March 2003 could not operate as an acceptance of the repudiation. Essentially, his submissions were twofold. First, in his words, to "effect a re entry" or otherwise to act as an acceptance of the repudiation, the document would have to be more formal than this letter. He suggested that something like the formal notice of 23 April 2004, which both parties agree operated to terminate the lease, if it had not been previously terminated, was necessary. His second submission was that, in effect, the document was rendered equivocal by its use of the words "in default of their Lease". By the use of these words the plaintiffs were affirming the continued existence of the lease. Even if the refusal of access appeared to be inconsistent with the continuation of the lease, the document overall was equivocal, so could not operate as an acceptance of the repudiation. Mr Studdy, of counsel for the defendants, submitted that the reference to the default was merely a reference to the basis on which the lease would be brought to an end. He said that the refusal of access was absolutely unequivocal. Default or no, the first defendant continued to have a right of access to the premises so long as the lease was on foot, whatever defaults there may have been. If there was no longer any access, there was no longer any lease.
20 Whilst there may have been some looseness of wording in the letter, in my view, it constituted an unequivocal communication that the plaintiffs regarded the lease as at an end. As to Mr Gray's first point, in my view it has a tendency to place a gloss, as dangerous as most glosses are, on the simple proposition of law as to what is necessary for the acceptance of a repudiation: see [6] above. The acceptance may be by words or conduct. It must be unequivocal. But there is no other requirement as to form or content. Mr Gray's first point is rejected. As to the second point, in my view, Mr Studdy is right. The communication makes it quite plain, access having been requested on behalf of the first defendant, that no access will be allowed and that the first defendant is denied entry to, much less possession of, the premises. Refusal of access is absolutely inconsistent with the continued existence of the lease. An oblique reference to default by the tenant as the reason for exclusion does not detract from the absoluteness of the refusal. As this, in my view, is the correct interpretation to be put in the context of this case upon the letter of 7 March 2003, then I am of opinion that an acceptance of the repudiation was communicated as at that date.
21 The plaintiffs are therefore entitled to judgment for the rent of the premises accrued due up to, but not after, that time. Short minutes may be brought in to give effect to this decision. Questions of interest and costs may be dealt with at that time.