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[2020] VSCA 267
General information, not legal advice.
Court of Appeal (Vic)
2020-10-16
Kyrou JA, Kaye JA, Sifris JA
Original judgment source is linked above.
LEASE - Premises satisfied definition of 'retail premises' in Retail Leases Act 2003 at commencement of lease but ceased to do so during term of lease - Whether lease ceased to be a 'retail premises lease' subject to Act upon premises ceasing to satisfy definition of 'retail premises' - Appeal dismissed.
LEASE - Effect of voiding provisions in Retail Leases Act 2003.
1 In 1998, the applicant, Verraty Pty Ltd ('the Landlord'), leased to the respondent, Richmond Football Club Ltd ('the Tenant'), a property at 354-364 Stud Road, Wantirna for a term of 10 years commencing on 7 May 1998, with an option to renew for a further term of 10 years ('the 1998 Lease').
2 By a Deed of Variation dated 30 January 2004 ('the Variation'), the parties agreed to vary the 1998 Lease by extending its term to 20 years, commencing on 7 May 1998 and to other variations as set out in that deed.
3 By operation of law, the Variation effected the grant of a new lease ('the 2004 Lease').
4 Under the lease, as originally negotiated in 1998 and varied in 2004, the Landlord is entitled to reimbursement for land tax payments (cl 5.2(b)) and a rent review which precludes the reduction of rent and provides for a minimum rental increase of 4 per cent per annum (cl 15.1(b)(i)). However, each clause is void under ss 50 and 35(3) of the Retail Leases Act 2003 ('the Act' or 'RLA') if the lease is a retail premises lease. It is common ground that, at its commencement, the 2004 Lease was a retail premises lease.[1]
5 The critical issue in this appeal is whether a retail premises lease, subject to the provisions of the Act at the time of commencement of the lease, can at some time in the future cease to be a retail premises lease if the premises are no longer 'retail premises' as defined in s 4 of the Act. If this is the case, and if the Act ceases to apply, various consequences follow including the loss of various protections provided by the Act to a retail tenant, including the land tax and rent review provisions to which we have referred.
6 In proceedings before the Tribunal, the Landlord claimed that the 2004 Lease ceased to be a retail premises lease on 7 May 2016,[2] and as a consequence, it was entitled to be reimbursed for land tax payments and receive rent for the renewed term at the current rent plus 4 per cent. The Landlord succeeded in its construction of the Act before the Tribunal.[3]
7 The Tenant contended that if the premises ceased to be retail premises as defined, the Act continued to apply to the retail premises lease provided that at the commencement of the lease it was a retail premises lease. Accordingly, in such a case, the provisions to which we have referred will, it was contended, continue to be void. The Tenant succeeded on appeal to a judge of the Trial Division.[4] The Landlord seeks leave to appeal from the judge's decision.
8 Both the Landlord and the Tenant referred to the text, context and purpose of the Act in support of their respective contentions. Having considered those contentions, we are of the opinion that the judge was correct in his construction to the effect that if a lease is a retail premises lease at the commencement of the lease, it remains subject to the Act even if the premises cease to be retail premises. In short, the text, context and purpose of the Act strongly support the view that it is not possible to jump in and out of the Act from time to time depending on whether premises continue to fall within the definition of 'retail premises'. This is the critical issue in the appeal and we refer to it as 'the Construction Issue'. It comprises proposed grounds 1-3 set out below.
9 There are other ancillary and related issues. They comprise proposed grounds 4-6 set out below.
10 The facts are not in dispute. We have already referred to most of the relevant facts in our short introduction.
11 The Tenant exercised the option to renew the 2004 Lease for a further term of 10 years commencing on 7 May 2018.
12 In the proceedings before the Tribunal, the Landlord claimed that if the 2004 Lease ceased to be a retail premises lease on 7 May 2016, as it contended, it was entitled to be reimbursed for land tax payments and receive rent for the renewed term at the current rent plus 4 per cent. If, on the other hand, the RLA continued to apply to the 2004 Lease, the Tenant would not be liable to pay land tax and the rent for the new term would be determined at a market rate.
13 The parties produced a Statement of Agreed Facts in the proceedings before the Tribunal. Other than the quantum of interest that might be payable in connection with land tax payments, there were no factual matters in dispute before the Tribunal.
15 By its notice of appeal dated 14 August 2019, the Tenant sought leave to appeal to the Trial Division against the above orders.
16 Leave to appeal was sought with respect to the following questions of law:
(a) On the proper construction of the Retail Leases Act 2003, does a lease to which the Act applies when the lease is entered into, being a lease of retail premises, cease to be a lease to which the Act applies if during the term of the lease the premises cease to be retail premises as defined in s 4 of the Act?
(b) On the proper construction of the Act, if a landlord seeks to rely on an estimate of outgoings for the purposes of s 4(3)(b) of the Act, does the estimate have to be given to the tenant before the estimate can be taken into account as part of occupancy costs?
(c) On the proper construction of the Act, if a lease to which the Act applies ceases to be a lease to which the Act applies during the term of the lease, do provisions of the lease which are made void at the time the lease was entered into by:
(i) section 35(3) of the Act;
(ii) section 50 of the Act -
cease to be void?
17 By order made on 26 September 2019, the judge allowed the appeal and set the Tribunal's orders aside.
18 Clause 5.2(b) of the 1998 Lease and the 2004 Lease provides that the Tenant shall pay 'all State Land Tax'.
19 Clause 15.1(b)(i) of the 1998 Lease and the 2004 Lease provides:
In the event that the Lessee exercises an option for a Renewed Lease for a Further Term as referred to in Clause 16.1, then the Annual Rental for the first year of the Further Term shall be an amount to be determined by mutual agreement between the Lessor and the Lessee, and in default of agreement prior to the commencement of the Further Term shall be an amount determined as being the appropriate market rental by a valuer appointed by the President for the time being of the Real Estate and Stock Institute of Victoria or his nominee who shall act as an expert and not as an arbitrator and whose fees shall be borne equally by the Lessor and the Lessee and whose determination of the Rental shall be final and binding on the Lessor and the Lessee provided that such Annual Rental shall not be less than the Rental paid by the Lessee immediately prior to the rent review date plus 4 per centum.[5]
20 Before considering in detail the reasons of the judge, it is necessary and convenient to set out the relevant sections of the Act and the then Treasurer's Second Reading Speech.
21 The provisions of the RLA upon which the parties relied are as set out in the following paragraphs.
22 Section 1 provides:
Main purpose
The main purpose of this Act is to replace the scheme in the Retail Tenancies Reform Act 1998 with a new scheme to enhance -
(a) the certainty and fairness of retail leasing arrangements between landlords and tenants; and
(b) the mechanisms available to resolve disputes concerning leases of retail premises.
23 The expression 'retail premises' is defined in s 4(1):
(1) In this Act, retail premises means premises, not including any area intended for use as a residence, that under the terms of the lease relating to the premises are used, or are to be used, wholly or predominantly for -
(a) the sale or hire of goods by retail or the retail provision of services; or
(b) the carrying on of a specified business or a specified kind of business that the Minister determines under section 5 is a business to which this paragraph applies.
There is no issue in these proceedings with respect to residential use or any 'specified kind of business'.
(2) However, retail premises does not include the following premises -
(a) premises in respect of which the occupancy costs (as defined in subsection (3)) under the lease concerned is more than the amount prescribed by the regulations for the purposes of this paragraph;
25 The expression 'occupancy costs' is defined in s 4(3) to mean:
(3) In subsection (2)(a), occupancy costs means -
(a) the rent payable under the lease, not being rent (or any part of rent) that is to be determined by reference to the turnover of a business; and
(b) the outgoings, as estimated by the landlord, to which the tenant is liable to contribute under the lease; and
Note
Section 46 requires the landlord to give the tenant a written estimate of outgoings to which the tenant is liable to contribute.
(c) any other costs of a prescribed kind that the tenant is liable to pay under the lease.
26 For the purposes of s 4(2)(a), reg 6 of the Retail Leases Regulations 2013 prescribes the amount as $1,000,000 per annum exclusive of GST.
Application generally
(1) This Act applies to a retail premises lease that is -
(a) entered into after the commencement of this section; or
(b) renewed after the commencement of this section, whether the lease was entered into before or after that commencement.
(2) Except as provided by Part 10 (Dispute Resolution), this Act only applies to a lease of premises if the premises are retail premises (as defined in section 4) at the time the lease is entered into or renewed.
Note
Sections 36 and 76(1) extend the application of certain provisions of this Act to certain leases entered into or renewed before the commencement of this section.[6]
28 Section 11 must, particularly, be read with s 7, which makes specific provision with respect to when a retail premises lease is to be taken to be entered into or assigned. Section 7 provides as follows:
When retail premises lease is entered into or assigned
For the purposes of this Act, a retail premises lease is entered into or assigned when -
(a) under the lease or assignment, the tenant enters into possession of the premises with the consent of the landlord; or
(b) under the lease or assignment, the tenant begins to pay rent for the premises; or
(c) the lease or assignment has been signed by all of the parties to it -
whichever first occurs.
29 Section 35(3) (contained within a section headed 'Rent reviews generally') provides:
A provision in a retail premises lease is void to the extent that it purports to preclude, or prevents or enables a person to prevent, the reduction of the rent or to limit the extent to which the rent may be reduced.
Estimate of outgoings
(1) A retail premises lease is taken to provide as set out in this section.
(2) The landlord must give the tenant a written estimate of the outgoings to which the tenant is liable to contribute under the lease that itemises those outgoings.
(3) The tenant must be given the estimate of outgoings -
(a) before the lease is entered into; and
(b) in respect of each of the landlord's accounting periods during the term of the lease, at least one month before the start of that period.
(4) The tenant is not liable to contribute to any outgoings of which an estimate is required to be given to the tenant as set out in this section until the tenant is given that estimate.
31 Section 50 (headed 'Recovery of land tax') makes provision in relation to the payment of land tax:
(1) A provision of a retail premises lease is void to the extent that it makes the tenant liable to pay an amount for tax for which the landlord or head landlord is liable under the Land Tax Act 2005.
...
32 Voiding provisions are contained in s 94 of the Act:
The Act prevails over retail premises leases, agreements etc
(1) A provision of a retail premises lease or of an agreement (whether or not the agreement is between parties to a retail premises lease) is void to the extent that it is contrary to or inconsistent with anything in this Act (including anything that the lease is taken to include or provide because of a provision of this Act).
(2) A provision of a retail premises lease or of an agreement (whether or not the agreement is between parties to a retail premises lease) is void to the extent that it purports -
(a) to exclude the application of a provision of this Act; or
(b) to limit the right of a party to the lease to seek resolution of a retail tenancy dispute under Part 10 or otherwise to limit the application of that Part.
...
33 The RLA was the product of the Retail Leases Bill 2003, which was introduced into Parliament by Mr Brumby, the then Treasurer, in the Legislative Assembly on 27 February 2003. As has been observed, one 'main purpose' of the legislation was to introduce a new legislative scheme in place of the then legislation, the Retail Tenancies Reform Act 1998, to enhance 'the certainty and fairness of retail leasing arrangements between landlords and tenants'.[7] Certainty and fairness were, expressly, 'key elements' of the bill, as is made clear in the Treasurer's Second Reading Speech:
I now turn to the key elements of the bill.
Certainty and clarity
The bill introduces major improvements to how the coverage of the legislation is determined, so that small and medium-size tenants are not unfairly excluded. As promised by the government, the 1000-square-metre rule - a provision that is unfair and creates legal uncertainty - has been abolished. The review assessed a range of alternatives and concluded that a prescribed threshold is a fairer means of determining coverage. The figure will be determined following final consultations with the industry.
The current provision that excludes public corporations works against small businesses that operate under a company structure. The bill introduces a more readily identifiable means of distinguishing between small and large companies by excluding listed corporations and their subsidiaries. The bill also corrects an anomaly in the current legislation whereby a franchisee who is a party to a lease is not protected if the franchisor also happens to be the landlord. These changes deliver on the government's commitment to ensuring that the public corporations and franchise provisions of the legislation do not unfairly exclude small and medium-size tenants.
The bill also provides greater protection for tenants who are on short-term leases, as they will be covered once the tenant has continuously been in possession for one year. This ensures that schemes such as 364-day leases that are continually revised will be covered by the legislation. The bill maintains existing provisions regarding the type of retail activity that is covered by the legislation.
The government considers that the most effective way of minimising retail tenancy disputes is to ensure that the parties have sufficient information to make a sound business decision about entering into and renewing a lease.
The bill includes improved provisions that require the landlord to give the tenant a disclosure statement at least seven days before entering into the lease. Tough penalties will apply where a landlord fails to give a disclosure statement or provides one that is misleading, false or incomplete. The content of disclosure statements is to be prescribed by regulation and will include the improvements suggested by the industry during the course of the review. Notification requirements in regards to a tenant's option to renew are enhanced.
A major obstacle to informing landlords and tenants of their rights and obligations under retail tenancies legislation is that there is no systematic means by which to contact them. All jurisdictions except Victoria require leases to be registered. While the government has chosen to minimise the compliance burden on business by not adopting the interstate model of registering leases, the bill does require the landlord to notify the Small Business Commissioner of basic contact details of the parties to the lease within 14 days. This is a negligible impost on landlords, but the details will be invaluable for the commissioner to ensure that all landlords and tenants covered by the legislation have access to relevant retail tenancy information.
... [8]
34 Clearly, as stated by the judge, one 'main purpose' of the RLA is to enable parties, both the prospective landlord and prospective tenant, to know and understand their obligations under a proposed leasing arrangement for the term of that lease with certainty so as to enable them to make a commercial decision whether to enter into the lease in the first place or to renew the lease for a further term.
35 We will first deal with the judge's reasons in relation to the Construction Issue.
The Tenant submits that neither the text of s 11(1) of the RLA nor the definition of 'retail premises' supports an interpretation of these provisions involving the requirement of an assessment whether a lease is a 'retail premises lease' to which the Act applies at any time after it is entered into or renewed. Thus, it is said that s 11(2) of the RLA confirms that the relevant time to consider the nature of the premises is at the time of entry or renewal, and no other time or times. The text of these provisions says nothing about leases ceasing to be subject to the Act due to events that happen after the lease is entered into or renewed.
As the Tenant submits, once a lease is subject to the provisions of the RLA, the provisions of that legislation prescribe many contractual provisions of the lease that will affect the rights of the parties and their obligations throughout the term of the lease. Thus, where the phrase 'retail premises lease' is used in Part 4 of the Act onwards to stipulate matters a lease is taken to provide, or provisions of a lease that are void, it means ... a retail premises lease to which the Act applies at the time the lease is entered into or renewed. There is, in my view, much force in these submissions, as an interpretation that allows or requires the provisions of a lease to change from time to time or provides for temporal variations in statutory obligations or requirements attaching to that lease would hardly be supposed to promote certainty or fairness within the main purpose of the Act as stipulated in s 1 or as indicated in the Second Reading Speech on the introduction of the Retail Leases Bill 2003. It certainly does follow, in my view, that an interpretation which fixes the contractual terms and associated obligations with respect to a lease upon its entry or renewal provides both certainty and fairness.
...
In my view, the position advanced by the Tenant with respect to the interpretation of s 11(2) of the RLA has considerable force and is supported by both the legislative purpose and the statutory context, and is not in any sense precluded by the words of s 11(2) itself. It is true that, as the Landlord submits, the Court should not be swayed by arguments of unsatisfactory consequences of a particular legislative interpretation. In this respect, Pearce and Geddes say:
arguments by reference to unsatisfactory consequences are on shaky ground unless a more attractive alternative interpretation of the words used in the legislature is available ... Another difficulty that is sometimes encountered when it is argued that the literal interpretation would produce unsatisfactory and unintended results is that this may be a matter on which opinions can differ.
The position here is not simply one of unsatisfactory consequences at large; it is, rather, in my view, a consequence at odds with the whole purpose and context of the RLA and is not, in any sense, mandated by the language of s 11(2). Rather, the gravamen of the argument put by the Landlord is merely that the language of s 11(2) does not clearly and expressly preclude the possibility for which it is arguing. Indeed, the consequences, to which I now turn by way of illustration, are quite profound.
...
For these reasons, I am of the opinion that neither the provisions of the RLA nor their context nor the overall purpose of the legislation support the position put by the Landlord. In my view, the interpretation it would put on s 11(2) would produce a situation completely at odds with a main purpose of certainty and fairness of retail leasing arrangements. Moreover, it would produce significant uncertainty both with respect to whether or not the legislative regime under the RLA applies at any particular time to a lease which was a 'retail premises lease' at its commencement or renewal, and also significant uncertainty in relation to the consequences of its application and non-application in the event that 'jumping out' and 'jumping in' were conceivable under this legislation. The latter uncertainty is also considered and apparent in the reasons which follow in relation to the third ground of appeal. Consequently, the first ground of appeal is made out.
37 In paras 59-61 of his reasons, the judge dealt with the profound consequences that he referred to in para 58 as cited above. The analysis demonstrates the impossible and extremely uncertain position of both landlord and tenant. It is as well to set out the analysis in full:[11]
First, of particular significance in this respect is the effect on rent review provisions and liability to land tax. Thus, if the RLA applies, provisions of s 35(3) apply in the following terms (repeated for convenience):
(3) A provision in a retail premises lease is void to the extent that it purports to preclude, or prevents or enables a person to prevent, the reduction of the rent or to limit the extent to which the rent may be reduced.
It is clearly a most unsatisfactory state of affairs for parties not to know whether any agreed rent review provisions in a lease are subject to this restriction or not. Moreover, uncertainty as to whether a lease is affected by the RLA would leave parties in a very invidious position in relation to the other requirements of s 35, namely, those contained in s 35(1) and (2), which provide as follows:
Rent reviews generally
(1) If a retail premises lease provides for a review of the rent payable under the lease or under a renewal of the lease, the lease must state -
(a) when the reviews are to take place; and
(b) the basis or formula on which the reviews are to be made.
(2) The basis or formula on which a rent review is to be made must be one of the following -
(a) a fixed percentage;
(b) an independently published index of prices or wages;
(c) a fixed annual amount;
(d) the current market rent of the retail premises;
(e) a basis or formula prescribed by the regulations.
Note
For reviews based on the current market rent of the retail premises, see section 37.
As the Note to s 35(2) indicates, there are also issues with respect to the possible application, or not, of the requirements of s 37 of the RLA in relation to rent reviews based on current market rent. Section 37(1) requires that a 'retail premises lease' that provides for a rent review to be made on the basis of the current market rent of the premises is taken to provide as set out in ss 37(2) to (6).
In my view, the Landlord's interpretation of s 11(2) would produce an impossible situation for both landlords and tenants with respect to rent review as I have indicated with reference to, particularly, ss 35 and 37. Similarly difficult issues arise with respect to uncertainty in relation to the application or otherwise of the provisions of ss 26 to 28 of the RLA with respect to renewal of a 'retail premises lease'. The consequences of misstating the position with respect to the operation of these provisions may, depending on the particular circumstances, have very serious and prejudicial consequences for both landlords and tenants. Other difficult issues would arise with respect to other obligations imposed or avoided by the Act, such as those with respect to refurbishment, relocation and demolition, damage and refurbishing, and liability for repairs more generally.
In terms of financial obligations, one of the principal difficulties which would be posed by what might be termed the 'fluctuating uncertainty' of the application of the RLA, arises with respect to the provisions of s 50 with respect to land tax (repeated for convenience):
Recovery of land tax
(1) A provision of a retail premises lease is void to the extent that it makes the tenant liable to pay an amount for tax for which the landlord or head landlord is liable under the Land Tax Act 2005.
There are also issues with respect to outgoings and notification of outgoings, matters which are probably more conveniently discussed in relation to the second ground of appeal. And there are also more general issues in relation to the effect of the avoiding provisions of the Act in many of the provisions to which reference has already been made, noting that there are also a number of other provisions which operate in this way. Moreover, it should be remembered that s 94 of the Act prevents contracting out so it is not possible for parties to avoid the difficulties to which reference has been made by express provisions in their lease.
Proposed grounds of appeal - the Construction Issue
38 The proposed grounds of appeal, in relation to the Construction Issue, are as follows:
(a) it means only a lease of premises that were 'retail premises' at the time the lease was entered into or renewed; and
(b) because this condition was satisfied, the Act applies for the duration of the lease, even if the lease would no longer meet the definition of 'retail premises' because the occupancy costs are more than the amount prescribed: J[39] and [52]. J[51], [58] and [66].
(a) failed to have proper regard to the text and context of the application provisions in sections 4 and 11 of the Act;
(b) impermissibly relied upon a perceived legislative purpose by:
(i) adopting a specific interpretation of 'certainty and fairness' which was not available;
(ii) using the perceived legislative purpose as the sole or paramount consideration in interpreting the statute;
(c) failed to have proper regard to the legislative history of the relevant provisions.
3. The primary judge ought to have held that the Act ceased to apply to the Lease from 7 May 2016, given that, from that time:
(a) the premises were not 'retail premises' as defined in section 4 of the Act, because the occupancy costs for the year commencing 7 May 2016 (being rent plus outgoings) exceeded the amount of $1,000,000 per annum;
(b) for the purposes of section 11 of the Act, the premises were accordingly not retail premises and the lease was not a retail premises lease;
(c) such a construction gives effect to the ordinary meaning of the words used in section 11 of the Act, and is consistent with the interpretation of the equivalent provisions in the previous retail leases legislation.
39 The grounds are inter-related and it is convenient to deal with them together.
40 The Landlord submitted that the text, context and purpose of the Act compelled a conclusion that a retail premises lease could jump in and out of the Act, depending on whether the premises are retail premises. If they cease being retail premises, as defined, the Act ceases to apply.
41 The gravamen of the Landlord's argument is that s 11(2) 'restricts or qualifies' s 11(1) and does not perform any broader function. Without s 11(2), it was contended, 'the effect of section 11(1) would be that a lease could become subject to the Act at any time during the term of the lease if the premises satisfied the definition of "retail premises" regardless of the position at the commencement of the lease'.
42 Accordingly, provided the premises are retail premises at the time the lease is entered into or renewed, and not any later time, the effect of the unqualified operation of s 11(1), is that the Act applies. However, there is nothing in the text to suggest that the Act continues to apply for the duration of the lease and in particular in circumstances where the premises cease to be retail premises. It was submitted that clear words would be required in such a case. The fact that the Act applies to a retail premises lease means that it does not apply to a lease where the premises are not retail premises either at the start of the lease (the effect of s 11(2)) or cease to be retail premises at any stage. When the premises are no longer retail premises, there is no retail premises lease and the plain text is that the Act does not apply.
43 The Landlord submitted that the judge 'erred in treating section 11(2) as if it dealt with both late entry and early exit from the Act'. Early and permitted exit from the Act, about which the Act is silent, flowed from a plain reading of the text.
44 In addition to the suggested plain meaning of the text, the Landlord referred to a number of contextual matters in support of its primary contention as to the correct interpretation of s 11(1) of the Act. Reference was made to the definition of 'retail premises' in s 4 and the power of the Minister under s 5 to make declarations in relation to the kind of business, premises or tenant that may fall within the definition of 'retail premises'. The point was that premises may be retail premises one day and cease to be retail premises the next day. This commercial feature or reality required some flexibility as to the operation of the Act. If premises could jump in and out of being retail premises, the application of the Act must adjust accordingly.
45 In relation to certainty and fairness, the Landlord submitted that the Second Reading Speech made it clear that this was a reference to reversing the unfairness and uncertainty associated with the 1,000 square metre rule. There was no reference to any certainty or fairness associated with a lease remaining subject to the Act for its entire term without any regard to whether the premises qualify as 'retail premises'.
46 The Tenant submitted that the text, context and purpose of the Act compelled the opposite conclusion, namely that a retail premises lease would remain subject to the Act even if the premises ceased to be retail premises provided they were retail premises at the commencement of the lease. It was this lease, that is, the retail premises lease that the Act focused on rather than the characterisation of the premises.
47 The Tenant submitted that there is nothing in the Act that requires the premises to remain retail premises for the duration of the lease in order for the Act to apply. It was submitted that s 11(2) makes this clear, that is that there is only one point in time when the premises are examined and assessed in order to determine whether they are retail premises and that is at the commencement of the lease. This was the plain meaning of s 11(1).
48 The Tenant referred to the tense in s 11(1) ('is') and the temporal requirement in s 11(2). This, it was submitted, supported the construction that the time of assessment is the time the lease is entered into and the 'text does not require a continuing review of whether premises are "retail premises" to determine whether the Act continues to apply'.
49 To emphasise this point, namely that a lease could not jump in and out of the Act, the Tenant submitted that, if this was the case, s 11(1)(a) would need to provide as follows:
This Act applies to a retail premises lease that is or was entered into after the commencement of this section.
50 On this point, it was submitted further that the text does not include words such as 'for so long as' premises are retail premises, an obvious phrase had the Landlord's construction been intended.
51 Finally, on the plain text of the relevant provisions, the Tenant submitted that if Parliament had 'intended the Act to cease to apply to a lease part way through the term of the lease (and apply again at some later time) it would have said so in clear terms' particularly given the consequences that would follow if leases could jump in and out of the Act. The consequences are numerous and potentially severe and the Tenant referred to the serious and unworkable matters raised by the judge and referred to above.
52 The Tenant referred to the Second Reading Speech and submitted that the Act 'was intended to have an ameliorating or remedial operation'. Reference was made to a feature of the new scheme that prescribed terms that a retail premises lease is taken to provide and terms of a lease that are void. Section 94 of the Act includes a general prohibition against terms contrary to the Act. Further, reference was made to a number of matters that needed to be complied with before the lease was entered into. Pursuant to s 17 of the Act, a disclosure statement is required. Pursuant to s 46(3)(a), discussed later, a written estimate of outgoings is required. It was submitted that these matters provided contextual support for the Tenant's construction and that 'the assessment whether premises are retail premises must be made before the lease is entered into and it will have a bearing on the parties' negotiations.'
53 The principles to be applied are not in doubt. The High Court has repeatedly stated that the process of statutory construction starts with the actual text of the statute. The text, however, is to be considered in light of the context and purpose of the statute or particular provision.
54 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, the plurality summarised the principles as follows:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[12]
55 In CIC Insurance Ltd v Bankstown Football Club Ltd, the High Court said:
Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.[13]
56 In Certain Lloyd's Underwriters v Cross, French CJ and Hayne J emphasised the need to look at what the statute says:[14]
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'.
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative 'intention' is to use a metaphor. Use of that metaphor must not mislead. '[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have' (emphasis added). And as the plurality went on to say in Project Blue Sky:
Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
58 Difficulties may arise if the literal meaning conflicts with the legislative purpose. In such circumstances, a departure from the literal meaning may be justified. The resultant tension was described by Francis Bennion in Statutory Interpretation: A Code as follows:
Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.[17]
59 In Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd,[18] the Court of Appeal gave examples of conflicts between the literal meaning and the identified legislative purpose which have justified departure from the literal meaning. These include circumstances where:
(a) the literal meaning would conflict with other provisions of the statute;
(b) the literal meaning is inconsistent with the purposes of the statute;
(c) the literal meaning is incapable of practical application; or
(d) adoption of the literal meaning would lead to a result that is absurd, unreasonable or anomalous.[19]
60 Departure from the literal meaning will only be justified if the alternative construction is 'reasonably open'[20] and 'consistent with the language in fact used by the legislature'.[21] The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[22]
61 It must also be recalled that s 35(a) of the Interpretation of Legislation Act 1984 provides that 'a construction that would promote the purpose or object underlying the Act ... shall be preferred to a construction that would not promote that purpose or object'.
62 In the case of two strongly competing interpretations, the High Court has said:
If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.[23]
63 In Taylor v The Owners - Strata Plan No 11564,[24] the High Court considered a construction that required the insertion of additional words_._ The plurality stated that 'the task remains the construction of the words the legislature has enacted' and that whether additional words are justified involves a judgment of matters of degree.[25] The plurality said:
That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'.[26]
64 In our opinion, the text, context and purpose of the Act support the construction advanced by the Tenant and found by the judge.
65 From the text it is clear, and the parties agree, that in order for the Act to apply, the premises must be retail premises at the time the lease is entered into or renewed and not a later time. This lease, with its negotiated terms, including the tenure of the lease, and terms imposed by the Act, is referred to by the Act as a retail premises lease. It is this lease that governs the contractual relationship of the parties and to which the Act specifically applies.
66 The Act accordingly applies to this lease and for the duration of the lease. This follows naturally from the words used. The only qualification is that the premises are retail premises at the time the lease is entered into or renewed. The temporal requirement and tense used in s 11(2) and the tense used in s 11(1) support this construction.
67 Section 11(2) directs attention to only one point in time, that is when the lease is entered into or renewed. Section 11(1) also refers to a lease that is entered into or renewed. This is the only relevant point in time to assess whether the premises are retail premises, and it is a one-time assessment. The text does not require a continuing review of whether premises are 'retail premises' in order to determine whether the Act continues to apply. If this was the case, additional words such as 'for so long as they remain so' would need to be included at the end of s 11(2) in order to capture the changing nature of the premises that once were, (and indeed were required to be) 'retail premises', but are no longer 'retail premises'. Additional words would be necessary to indicate that there was such a lease, subject to the Act, but there no longer is. The absence of any words which accommodate a changed position arising from the changed nature of the premises provides textual support for the position advanced by the Tenant.
68 By their express terms, sub-ss (1) and (2) clearly focus on the time the lease is entered into or renewed. There is no suggestion in the text that the Act only applies 'for so long as' premises are 'retail premises' or that any continuing review is necessary or available. The Act applies to a retail premises lease from the time it is entered into or renewed and there is nothing, express or implied, to suggest that if premises cease to be retail premises this cessation has any effect whatsoever on the existing and applicable retail premises lease.
69 Further, neither the context nor purpose of the Act provides any such support. As submitted by the Tenant, had Parliament intended the Act to cease to apply at some point during the lease (called and characterised for its duration a retail premises lease with prospective operation) and indeed apply again at a later point in time, it would have said so in clear terms. The Act does not provide any mechanism or indication as to what is to occur or how the parties are to approach the position where the premises cease to be retail premises or indeed, having ceased to be, later fall back within the definition of retail premises. The construction contended for by the Landlord would significantly deprive the parties of any certainty in respect of their rights and obligations, which is a key purpose of the legislation. All of the obligations prescribed in the Act assume and are predicated on the status of the lease being determined when the lease is entered into or renewed. The absence of any transitional provisions that often apply to changed circumstances, in order to provide the necessary clarity and certainty, is a compelling indication that the Act does not contemplate a change of status of the lease during the term of the lease. This is not surprising given the context and purpose of the Act to which we now turn.
70 Like its predecessor, the 1998 Act, the RLA was intended to have an ameliorating or remedial operation.[27] As noted by the Tenant, one of the features of the legislative scheme embodied in the RLA is the way it operates. The scheme is primarily implemented as provisions of the lease rather than by direct statutory force. Many of the provisions of the RLA prescribe matters that a retail premises lease 'is taken to provide'.[28] Other provisions of the RLA stipulate that specific provisions contained in a lease are 'void to the extent' they provide certain things. Section 94 includes a general prohibition against provisions that would be contrary to the RLA.
71 The RLA also sets out a number of matters that have to be complied with before a lease is entered into, such as the need to give a disclosure statement under s 17 and a written estimate of outgoings under s 46(3)(a). These matters demonstrate the importance of the determination as to whether the premises are retail premises. It has effect on the lease negotiated by the parties at its commencement and for the duration of that lease and not for some uncertain period depending on the changed nature of the premises, potentially on more than one occasion during the lifetime of the lease. As a consequence, the assessment whether premises are retail premises must be made before the lease is entered into or renewed and it will have effect for the duration of the lease.
72 The Landlord contends the objective of certainty and fairness was achieved by the abandonment of the criterion of floor area as the factor which determines whether the Act applies. This is not supported by the text of the Act. In s 1, referred to above, a 'main purpose ... is to ... enhance ... the certainty and fairness of retail leasing arrangements between landlords and tenants_.'_ There would be no certainty if unforeseen events beyond the control of the parties, occurring during the term of the lease, could exclude the operation of the Act. In such a case, the parties could have no certainty as to the terms of their agreement in later years.[29]
73 The issue of uncertainty is especially acute in the case of rent reviews. Sections 35 to 38 relate to the review of rent. They affect the amount of rent to be paid after each review, including on renewal of the lease. Section 37, which deals with rent reviews based on current market rent, expressly states that the assessment is to have regard to the landlord's outgoings to the extent to which the tenant is liable to contribute. That provision contemplates that the extent of a tenant's obligations for outgoings is able to be assessed for the period that the reviewed rent will apply. That is inconsistent with the application of the Act altering during the term of the lease, with the effect that the obligations of the parties might vary according to whether the Act will apply. As noted earlier, the absence of any transitional provisions that often apply to changed circumstances in order to provide the necessary clarity and certainty supports the conclusion that the Act does not contemplate a change in the status of the lease during its term.
74 The Landlord contends the Act displaces the parties' freedom to contract in order to protect parties said to be in a weaker bargaining position and the measure selected to 'draw the line' is occupancy costs. Axiomatically, the time at which parties negotiate the terms of their lease is the time they enter into or renew the lease. This emphasises the importance of the parties knowing whether the lease will be a lease to which the Act applies for the whole of the intended term.
75 In summary, we conclude that the construction advanced by the Landlord is untenable. The construction advanced by the Tenant is supported by the text, context and purpose of the Act. The Act is silent about any exit of the lease from the Act and re-entry into the Act. There are no provisions directed to these matters. The original estimate of outgoings under s 46(3)(a), which is relevant to the definition of 'occupancy costs' in s 4(3)(b), is a one-time only estimate. There is no provision for a further or annual estimate. The annual estimate required by s 46(3)(b) assumes a retail premises lease.[30] These are critical matters fundamental to the interests of the parties, both landlord and tenant. There is no certainty at all if every year may potentially involve a change of position with not inconsiderable consequences. Any exit from the Act would adversely affect the tenant. Re-entry into the Act would similarly affect the landlord. The Act does not provide for an exit mechanism because it is not necessary. The entire focus is on the retail premises lease for the entire duration of that lease. The focus is on its terms, negotiated and prescribed by the Act, and not any revisitation of the definition of retail premises during the life of the lease.
76 For the above reasons, we do not consider that the choice is between two strongly competing interpretations. Further, the construction advanced by the Tenant 'produces the fairer and more convenient operation' and _'_conforms to the legislative intention'.[31] The 'inconvenience or improbability of result' of the construction relied on by the Landlord supports the Tenant's construction which 'is reasonably open and more closely conforms to the legislative intent'.[32]
77 In our opinion, the cases upon which the Landlord relied are not relevant or are readily distinguishable as submitted by the Tenant and found by the judge.
78 In Leung v Hungry Jack's Pty Ltd,[33] the question before the Court was whether the arbitrator had jurisdiction. This depended on the nature of the tenancy at the time of the dispute.
79 In Towercom Pty Ltd v Strathfield Group Ltd,[34] the issue was whether the Court could hear the dispute. With respect to the 1998 Act, the judge stated that if the premises ceased to be retail premises then the lease ceased to be a retail premises lease, with the result that the Court had jurisdiction. There was no detailed analysis of the 1998 Act.
80 The decision of the Supreme Court of South Australia in Diakou Nominees Pty Ltd v Gouger Street Pty Ltd[35] concerned differently worded legislation and does not assist in interpreting the RLA.
81 It is convenient to deal with proposed ground 6 next.
The primary judge erred in failing to hold, and ought to have held that the terms of the lease that were made void by s 35(3) and s 50 of the Act were valid and enforceable terms of the lease from 7 May 2016 when the Act ceased to apply.
83 Given our decision in relation to the proposed grounds 1-3, it is not strictly necessary to deal with this proposed ground.
84 The Landlord contends that the terms are only void so far as they relate to a retail premises lease and that if the lease ceases to be a retail premises lease because the premises are no longer retail premises, as defined, the provisions of the RLA cease to apply.
85 The Tenant contends that a void term remains void and cannot be revived. Had Parliament so intended it would have said so explicitly. The relevant provisions operate directly and expressly on the lease as terms of the lease and for the duration of the lease. It was submitted that there was no textual or contextual basis to conclude that the provisions were only void for a period of time or so long as the lease remained a retail premises lease.
86 The Tenant contends further that, under s 14(2)(a) of the Interpretation of Legislation Act, where the provisions of an Act cease to have effect, this does not revive anything not in force at the time the Act ceases to have effect on the lease. Accordingly, it was submitted that the reimbursement of land tax and rent review clauses were not revived.
87 The judge noted that, given his conclusion as to the Construction Issue, the question of revival of previously voided provisions does not arise. However, the judge considered that if the legislature had intended and provided for the fluctuating application of the Act, it would seem to follow that the voiding effect of the provisions of s 94 would only apply for so long as the lease was subject to the operation of the Act. On this hypothetical basis, it would follow that the provisions initially rendered void by the application of the RLA would 'revive' once the Act ceases to apply to the lease.
88 Proposed ground 6 depends on and only arises if the Landlord's construction argument is successful. However, the Tenant contends that even if the Landlord's construction argument is accepted, the terms which have been made void would remain void and would not revive. The judge did not accept this contention. We agree with the judge.
89 Given that the proposed ground is a logical extension of the construction urged by the Landlord, which we have rejected, the ground must fail. It is not necessary therefore to reach a concluded view on the argument raised by the Tenant predicated on acceptance of the Landlord's construction. However, we will state our view briefly.
90 In our view, acceptance of the Landlord's construction - that the Act ceases to apply once the premises are no longer retail premises - necessarily means that cls 5.2(b) and 15.1(b)(i) (rendered void pursuant to ss 50 and 35(3), respectively) would apply and operate as originally intended and negotiated by the parties. The Act rendered the clauses void but if (contrary to our conclusion under proposed grounds 1-3) the Act no longer applies, as contended by the Landlord, there would be no reason why the clauses, negotiated by the parties and otherwise applicable, should not continue to operate. It is no answer to say that once the clauses are void they cannot be revived. Rather, they would only be void in particular circumstances and if those circumstances did (hypothetically) cease to exist, there would be no reason why the clauses should continue to be void. Although the relevant provisions of the Act operate directly and expressly on the retail premises lease, as the Tenant contends, so as to displace the express terms of the lease, it is only as a consequence of the application of the Act to the lease. If (hypothetically) the Act no longer applied to the lease, plainly, its provisions would no longer operate on it.
91 Proposed grounds 4 and 5 are premised on the success of the Landlord on proposed grounds 1-3. They are in the following terms:
92 In view of our decision in relation to proposed grounds 1-3, it is not strictly necessary to deal with these proposed grounds. Nevertheless we will briefly state our view. It is convenient to deal with the proposed grounds together. We consider that there is no error in the reasoning of the judge.
93 It is common ground that no written estimate of outgoings was given by the Landlord to the Tenant for the last two years of the lease and that occupancy costs for those years exceeded $1,000,000.
94 The judge held that s 46(3) has two separate requirements. First, the Landlord must give the Tenant an estimate of outgoings before the lease is entered into and, second, the Landlord must give such an estimate in respect of each of the Landlord's accounting periods during the term of the lease. Section 46(1) provides that a retail premises lease is taken to include the provisions of s 46(3) of the Act. As these provisions apply to a lease of 'retail premises', as defined, the judge accepted that 'a somewhat circular argument' is involved 'insofar as the question is whether or not the particular lease is a "retail premises lease" under s 4 of the RLA'.[36]
95 In referring to 'retail premises' as defined in s 4(1) and in particular the exclusionary provisions of s 4(2)(a), informed by the definition of 'occupancy costs' set out in s 4(3), the judge held that the estimate of outgoings referred to in s 4(3)(b) was a single estimate, namely, the estimate given before the lease was entered into. The judge emphasised that this was consistent with his construction of s 11.
96 The Landlord contends that the judge confused the operation of ss 46 and 4. It was contended that s 46 only applies if a lease is a retail premises lease and the section has no application to the determination of that particular question.
97 The Landlord contends further that the reference to occupancy costs in s 4(2)(a) is a reference to annual occupancy costs for each year of the lease and that the estimate in s 4(3)(b) is likewise an annual estimate of outgoings.
98 The Tenant essentially adopted the reasons advanced by the judge.
99 Section 4(2)(a) provides that retail premises do not include premises where the occupancy costs exceed the amount prescribed by the regulations. The amount prescribed is $1,000,000. As we have already stated, the expression 'occupancy costs' is defined in s 4(3) as follows:
(a) the rent payable under the lease, not being rent (or any part of rent) that is to be determined by reference to the turnover of a business; and
(b) the outgoings, as estimated by the landlord, to which the tenant is liable to contribute under the lease; and
Note
Section 46 requires the landlord to give the tenant a written estimate of the outgoings to which the tenant is liable to contribute.
(c) any other costs of a prescribed kind that the tenant is liable to pay under the lease.
100 Section 46 applies where the lease is a retail premises lease subject to the provisions of the Act. The obligations on the part of the landlord in s 46(2) and (3) (and the consequences in s 46(4)) are not prescribed for the purpose of determining whether the lease is a retail premises lease but rather they apply by virtue of the lease having the status of a retail premises lease under the Act.
101 To determine the anterior question, namely, whether the lease is a retail premises lease, it is necessary to refer to s 4. This section alone determines that fundamental question.
102 Much of the confusion arises out of the different construction choices advanced by the parties.
103 According to the construction advanced by the Tenant, and accepted by the judge, the s 4 assessment is a one-time assessment at the commencement of the lease with no provision for annual review or an annual estimation of outgoings as contended by the Landlord. If at its commencement the lease is a retail premises lease, s 46 operates and there may be some overlap between s 4(3)(b) and s 46(3)(a). This is alluded to and arises out of the note to s 4(3)(b). However, this does not mean that s 46 is concerned with the anterior question as to the status of the lease. To this extent the note is unhelpful and a potential source of confusion. On this view, if at its commencement the lease is a retail premises lease, it remains so for its duration and under s 46, an annual estimate of outgoings must be given.
104 As discussed under proposed grounds 1-3, according to the Landlord's construction, the lease can 'jump out of' and 'into' the Act. If (contrary to our conclusion on those grounds) that construction were accepted, it would be necessary to construe ss 46 and 4 accordingly. In this regard, the Landlord contends that while s 46 only applies for so long as the lease remains a retail premises lease, s 4, the section that determines that issue, has ongoing and continuous operation. Accordingly (on the Landlord's construction), if in any year the annual estimate of outgoings results in the occupancy costs, as defined, exceeding the prescribed amount:
(a) the lease would cease to be a retail premises lease; and
(b) by that fact alone, and without notice to the Tenant, cls 5.2(b) and 15.1(b)(i) would cease to be void thereby enabling the Landlord to claim reimbursement of land tax and revisit the amount of rental payable.
105 Clearly, the resolution of that question is dependent on the Construction Issue. Based on our conclusion on that issue, the parties do not revisit the occupancy costs on an annual basis in order to re-assess the original determination as to whether the lease is a retail premises lease with the contended consequences.
106 If, contrary to our conclusion on proposed grounds 1-3, the construction advanced by the Landlord were accepted, thereby requiring an annual review of the legal status of the lease based on the estimate as to outgoings, the question would remain as to whether that estimate must be given to the Tenant. The Landlord contends that it would not be required because s 46 (which does contain a provision for written notice prior to the lease) would have ceased to apply and s 4 does not contain any such requirement. In fact, s 4 does not contain any such requirement even at the commencement of the lease. However, this is achieved by s 46(3), and s 4(3)(b) directs attention to this requirement by way of a note as referred to earlier.
107 We do not accept that in such (hypothetical) circumstances no notice to the Tenant would be required. The calculation and assessment to be undertaken in determining the 'occupancy costs', the relevant touchstone of 'retail premises', is self-evidently critical and foundational. The question whether or not premises are 'retail premises' is of great significance to the contracting parties. Being a contract, the parties are required to agree on the nature and terms of their lease. Which provisions apply and which do not? What provisions are deemed to be incorporated? To determine this, each integer of s 4(3) needs to be considered. It is logical, practical, commercial and self-evident that the Tenant would be required to be given notice of the outgoings as estimated, if there is to be an ongoing review of the legal status of the lease as contended by the Landlord. To submit that no notice would be required, because the Act does not compel it, only reinforces the view that the Act does not so provide because it does not contemplate any further review of the application of the Act to the lease after the commencement of the lease.
108 As pointed out by the judge, s 4(3) supports the construction of s 11. The mechanism provided by s 4(3) does not readily translate into an exit of the lease from the Act at a later point. There is no provision for re-assessment of the characterisation of the premises. Section 46 assumes a retail premises lease and s 4(3) involves a one-time assessment of that question as held by the judge for the reasons given. The estimate of outgoings required by s 4(3), unlike s 46(3), is an estimate to determine occupancy costs. Such a determination is not required to take place either annually or at any other time after the commencement of the lease.
109 It follows, for the reasons given, that proposed grounds 4 and 5 are not made out.
110 As the proposed grounds of appeal were reasonably arguable, we would grant leave to appeal but, for the reasons given, dismiss the appeal.
[1] In Richmond Football Club Ltd v Verraty Pty Ltd [2011] VCAT 2104, [62], the Victorian Civil and Administrative Tribunal ('the Tribunal') decided that the 2004 Lease was, at its commencement, subject to the provisions of the Act and was properly referred to as a retail premises lease.
[3] Verraty Pty Ltd v Richmond Football Club Ltd [2019] VCAT 1073.
[4] Richmond Football Club Ltd v Verraty Pty Ltd [2019] VSC 597 ('Reasons').
[10] Reasons [51]-[52], [58], [62] (citations omitted).
[11] Reasons [59]-[61] (citations omitted).
[12] [2009] HCA 41; (2009) 239 CLR 27, 46-6 [47]; [2009] HCA 41 (Hayne, Heydon, Crennan and Kiefel JJ) (citations omitted). See also Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39]; [2012] HCA 55 (French CJ, Hayne, Crennan, Bell and Gageler JJ); Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523, 539-40 [47]; [2013] HCA 16 (French CJ, Crennan, Kiefel, Gageler and Keane JJ).
[13] (1997) 187 CLR 384, 408; [1997] HCA 2 (Brennan CJ, Dawson, Toohey and Gummow JJ) (citations omitted) ('CIC Insurance').
[14] [2012] HCA 56; (2012) 248 CLR 378, 389-90 [24]-[25]; [2012] HCA 56 ('Certain Lloyd's Underwriters').
[15] (1998) 194 CLR 355, 384 [78]; [1998] HCA 28 (McHugh, Gummow, Kirby and Hayne JJ) ('Project Blue Sky').
[17] Francis Bennion, Statutory Interpretation: A Code (Butterworths, 3rd ed, 1997) 344, referred to with approval in Project Blue Sky (1998) 194 CLR 355, 384 [78]; [1998] HCA 28 (McHugh, Gummow, Kirby and Hayne JJ).
[19] Ibid [53] (Warren CJ, Whelan JA and Riordan AJA) (citations omitted).
[20] CIC Insurance (1997) 187 CLR 384, 408; [1997] HCA 2 (Brennan CJ, Dawson, Toohey and Gummow JJ).
[21] Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531, 549 [39]; [2014] HCA 9 (French CJ, Crennan and Bell JJ).
[22] Certain Lloyd's Underwriters [2012] HCA 56; (2012) 248 CLR 378, 390 [26]; [2012] HCA 56 (French CJ and Hayne J).
[23] Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297, 321; [1981] HCA 26 (Mason and Wilson JJ) ('Cooper Brookes').
[25] Ibid 549 [39] (French CJ, Crennan and Bell JJ).
[26] Ibid 548 [38] (citations omitted). A number of the authorities referred to in relation to departure from the literal meaning are helpfully collected by Riordan J in the recent judgment in Façade Designs International Pty Ltd v Yuanda Vic Pty Ltd [2020] VSC 570, [23]-[31].
[27] See Adrian J Bradbrook, Clyde E Croft and Robert S Hay, Commercial Tenancy Law (LexisNexis Butterworths, 3rd ed, 2009) 686 [23.8] as cited in respect of the 1998 Act by this Court in Barfly's Nominees Pty Ltd v Kliger Partners [2019] VSCA 256, [33] (Tate, Kyrou and Emerton JJA). See also Peppercorn Nominees Pty Ltd v Loizou (1997) V ConvR 54-560; [1996] VSC 601, 15 (Smith J).
[28] See Adrian J Bradbrook, Clyde E Croft and Robert S Hay, Commercial Tenancy Law (LexisNexis Butterworths, 3rd ed, 2009) 686-7 [23.8] for a list of sections which imply terms into a retail premises lease.
[29] At least the floor area of premises remains constant throughout the life of the lease.
[30] This is dealt with as part of grounds 4 and 5 below.
[31] Cooper Brookes (1981) 147 CLR 297, 321; [1981] HCA 26 (Mason and Wilson JJ).
[32] CIC Insurance (1997) 187 CLR 384, 408; [1997] HCA 2 (Brennan CJ, Dawson, Toohey and Gummow JJ).
Verraty Pty Ltd
Richmond Football Club Ltd [2020] VSCA 267
(2009) 239 CLR 27
(1997) 187 CLR 384
(1998) 194 CLR 355
(2014) 253 CLR 531
(1981) 147 CLR 297
(2012) 250 CLR 503
(2013) 250 CLR 523
(2012) 248 CLR 378