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Submissions of the parties

1. The plaintiff submits that cl 12.3 was intended to be an adjunct to the exercise by the plaintiff of the option to purchase granted by cl 12.1. The plaintiff argues that the right of way and right of use provided by cl 12.3 are important ancillary rights to enable effective use of the land.
2. The plaintiff argues that the right of way provided by cl 12.3 is an easement that benefits the land that is the subject of the option. They say that it is enforceable against the defendant and any subsequent proprietors of the servient tenement. They also say that, similarly, the right of use should be construed to be an easement because, in order for such a right to be effective, the parties must have intended that it benefit and bind successors in title. It can only do so, they submit, if it is a registered interest in the land.
3. The plaintiff submits that the Court should not regard the capitalisation of the phrase "Right of Way" as significant when compared to the non-capitalised "right of use" in the context of construing the clause. The plaintiff suggests that the former may have been capitalised because it is a type of easement with a particular and distinctive designation. Alternatively, the plaintiff points out that the lease is poorly drafted and says it would be wrong to attach significance to minor inconsistencies in style or usage. Neither "Right of Way" nor "right of use" is a defined term.
4. The plaintiff accepts that the defendant cannot provide the plaintiff with an easement of any kind prior to the plaintiff becoming registered proprietor of the land to be the dominant tenement. However, the plaintiff points out that the right of way is unquestionably an easement and, as such, the reference to providing a right of way prior to the transfer cannot be a reference to completing the process of providing a registered right of way. The plaintiff says the same must be true of the right of use. The expression "prior to Transfer", the plaintiff argues, must relate to conveyancing matters and express the parties' intention that all formalities, pre-conditions to the provision of the right of use and right of way, are complete by the time of transfer.
5. The defendant submits that what was intended was the grant of a contractual licence. The defendant argues that there was no occasion to provide any further details because the licence would be coterminous with the plaintiff's ownership of the land, as with any personal right predicated upon ownership. The defendant says that the extent of the right was sufficiently defined in cl 1.1 of Annexure A of the lease which defined "Common Areas". The defendant submits that it is self-evident that the "right of use" was to be non-exclusive, otherwise the defendant would have been effectively assigning the Common Areas.
6. The defendant says that the use of the phrase "right of use" rather than "non-exclusive licence to use" (as appears in cl 13.1) is not of any real significance given the drafting of the document. The defendant submits this terminology is short-hand for the right in question. It submits that it is more significant that the plaintiff previously enjoyed this sort of right as tenant, and argues that the term "right of use" seems apt to refer to the same right to be enjoyed after the end of the tenancy.
7. The defendant says that the words "prior to Transfer" should be construed according to their ordinary meaning, and that if an easement were to be granted the expectation would be that it would be conveyed as part of the transfer, not before it. In the case of a licence, though, the defendant says that there is every reason the parties might wish to ensure the grant took place prior to the transfer (as a personal right would not be part of the transfer).
8. The defendant submits that a construction which supplies a congruent operation of the various components of the contract as a whole should be preferred. The defendant relies on the authorities as collected by Leeming JA in Sigiriya Capital Pty Ltd v Scanlon (2013) 97 ACSR 183; [2013] NSWCA 401 at [30]: 30 Clause 11.1 (which is, after all, a single very long sentence) must be considered as a whole, just as must the Loan Agreement itself. In Fitzgerald v Masters (1956) 95 CLR 420 at 437, McTiernan, Webb and Taylor JJ said: "It is trite law that an instrument must be construed as a whole. Indeed it is the only method by which inconsistencies of expression may be reconciled ..." Gibbs J made the same point in Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109 when saying that the meaning of any one part of the contract may be revealed by other parts, and "the words of every clause must if possible be construed so as to render them all harmonious one with another." In Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR 522 at [16] the joint judgment spoke of preferring a construction "supplying a congruent operation to the various components of the whole". In Chapmans Ltd v Australian Stock Exchange Ltd [1996] FCA 474; (1996) 67 FCR 402 at 411, in a passage applied in Perpetual Custodians Ltd as custodian for Tamoran Pty Ltd as trustee for Michael Crivelli v IOOF Investment Management Ltd [2013] NSWCA 231 at [81], Lockhart and Hill JJ said: "It is an elementary proposition that a contract will be read as a whole giving weight to all clauses of it, where possible, in an endeavour to give effect to the intention of the parties as reflected in the language which they have used. A court will strain against interpreting a contract so that a particular clause in it is nugatory or ineffective, particularly if a meaning can be given to it consonant with other provisions in a contract. Likewise where there are general provisions in a contract and specific provisions, both will be given effect, the specific provisions being applicable to the circumstances which fall within them." Those uncontroversial statements of principle reflect the fact that ordinarily considerations of internal coherence are a sound guide to a contract's legal meaning, as Professor Carter has observed: The Construction of Commercial Contracts (2013) Hart Publishing at 440-441. Here the immediate question turns on the internal coherence of clause 11.1.
9. The defendant says "provide", in this context, clearly means "grant", and as such the difficulties concerning the timing of the transfer substantially or wholly disappear if the defendant's construction is preferred.