Between: Nullagine Investments Pty Ltd
And: WA Club Inc

Judges: Brennan J
Deane J
Dawson J

Toohey JGaudron J

Subject References:
Real Property

Canberra (heard in Perth)

Decision by:
Toohey J

This is an appeal from the judgment of the Full Court of the Supreme Court of Western Australia delivered on 20 February 1992 ^[F56] allowing an appeal from the judgment of Rowland J in favour of the present appellant. The grant of special leave to appeal to this Court was restricted; the significance of this will appear later in these reasons. The appeal raises, inter alia, questions as to the operation of s 126 of the Property Law Act 1969 (WA) ("the Act") which empowers the Supreme Court of Western Australia to make orders for the sale of property held in co-ownership rather than for the partition of the property.

The circumstances giving rise to litigation

The dispute between the parties which led to the present litigation concerns land at 18 The Esplanade, Perth on which stands a 10-storey building and a multi-storey car park. The land was formerly owned by the respondent ("The Club") which is an association incorporated under the provisions of the Associations Incorporation Act 1895 (WA). ^[F57] The present building and car park were completed in about 1972, from which time The Club has operated from those premises. The building incorporated a hotel and a restaurant. In 1976 The Club was constrained by financial circumstances and its preferred option was to find a buyer for a half-interest in the land who would conduct the hotel and restaurant business. On 1 October 1976 The Club entered into three agreements with the appellant ("Nullagine") in relation to the land:

1.

The first was an agreement for the sale by The Club to Nullagine of an undivided half-share in the land.

2.

The second was an agreement whereby the parties, as owners of the land, leased the car park to The Club for a term expiring on 2 October 1986. Clause 4(c) of the lease reads:

"That if the Lessee shall upon the expiration of the said term or any extended term hold over the said premises a tenancy from year to year shall not thereby be presumed but the tenancy shall in such event be and continue a quarterly tenancy at the rental payable under the last extension thereof and otherwise upon the same terms as are hereinbefore set forth insofar as they are applicable and shall be determinable at the expiration of one quarter's notice by either party to the other at any time."

3.

The third was an occupation deed made between The Club of the one part and six companies (of which Nullagine was one), referred to as "The Nullagine Group", of the other part.

The occupation deed provided that for a term commencing on 3 October 1976 and expiring on 2 October 1986 The Club would have "sole and exclusive use and occupation" of the eighth, ninth and a portion of the tenth floors of the building together with a right of access to the foyer on the ground floor in order to make use of the lift facilities. For the same term The Nullagine Group would have "sole and exclusive use and occupation of the ground floor and floors one to seven inclusive of the Residential Building."

Clause 4(b) of the occupation deed is critical to the appeal; it is therefore necessary to reproduce it verbatim:

"Neither party shall sell, transfer assign or otherwise dispose of its share or interest in the Land and the fixed improvements thereon unless as a condition precedent thereto it first offers its share and interest in the Land to the other of them at such price as may be mutually agreed and in default of agreement at a price equal to FIFTY percent of the value of the Land at that date such value shall be determined by arbitration under the provisions of the Arbitration Act 1895 PROVIDED THAT the arbitrators shall be three members of the Australian Institute of Valuers nominated by the President for the time being of such Institute and upon such terms as may be mutually agreed and in default of agreement with 28 days of the determination of the purchase price then the purchase price shall be paid by a deposit of TEN percent of the purchase price within 28 days of such determination and the balance shall be paid 120 days after such determination against delivery of possession and a registrable transfer f the interest in the Land to the transferee.

If the offer to sell is not accepted within 28 days of the determination of the purchase price as aforesaid then the party desiring to sell or transfer its interest in the Land shall be at liberty within twelve months from the original offer to sell to the other party its interest in the Land to sell to any other person at such price and upon such terms as it shall see fit without making a further offer to the other party pursuant to the terms of this clause PROVIDED HOWEVER no party shall sell, transfer assign or otherwise dispose of its interest in the Land unless its proposed successor in title enters into a deed of covenant with the other party for the time being to be bound by and comply with the terms and conditions herein contained as amended from time to time and subject thereto such successor shall be entitled to all the benefits but subject to all the duties and obligations created and imposed by this deed in substitution for his or its predecessor PROVIDED FURTHER neither party shall sell or dispose of its interest in the Land for a period of three years from the first day of October One thousand nine hundred and seventy six."

It may be asked: why did the lease and occupation deed fix terms of 10 years? The answer did not emerge with certainty on the appeal and is not vital to its outcome. But counsel drew attention to the provisions of the Town Planning and Development Act 1928 (WA), s 20 of which, at the relevant time, prohibited a lease of land for a term exceeding 10 years without the approval of the Town Planning Board, except as a lot or lots. ^[F58] Neither the lease nor the occupation deed dealt with a lot. Be that as it may, the term fixed by the lease and by the occupation deed came to an end on 2 October 1986. Both before and after that date negotiations took place between the parties as to the terms and conditions upon which they would continue to use and occupy the premises. Nullagine wished to sell its interest in the land. The Club wanted to buy that interest so that it could continue to occupy the premises. Unfortunately the parties could not reach agreement on the price to be paid for Nullagine's interest and litigation ensued.

The proceedings

On 14 October 1988 Nullagine issued a writ against The Club. The statement of claim recited the registered proprietorship of the land and claimed an order "directing a sale of the land and a distribution of the net proceeds of sale in equal shares" to the parties in accordance with s 126 of the Act with leave to Nullagine to bid at the sale. The Club responded with a defence and counterclaim in which it claimed to hold over as a quarterly tenant of the car park. It further pleaded that Nullagine was not entitled to an order for sale as it had not complied with cl.4(b) of the occupation deed by first offering its share to The Club at either a price agreed to by The Club or at a price determined by arbitration in accordance with the sub-clause. The Club pleaded that, should Nullagine be unable to reach agreement with it as to the sale of Nullagine's interest in the land, Nullagine could sell its interest on the open market, provided the purchaser agreed to be bound by the terms and conditions of the occupation deed. In the alternative, The Club pleaded that if a sale of the land was ordered, it should be subject to The Club's tenancy of the car park. The Club counterclaimed for an order that Nullagine's claim for an order for sale be permanently stayed and for a declaration that Nullagine could only dispose of its interest in the land in accordance with the provisions of cl.4(b).

Rowland J held in favour of Nullagine and made an order that the property be sold and the proceeds divided among the parties. The Club appealed to the Full Court who allowed the appeal, set aside the order of Rowland J and ordered that a sale of the property could only be effected in accordance with cl.4(b) of the occupation deed. Before turning to the grounds of appeal in this Court it is desirable to examine the nature of the remedies available under s 126 of the Act.

Section 126 of the Act

Nullagine claimed to be entitled as of right to an order for sale, relying on s 126 of the Act. It is necessary to reproduce the section in part:

"126.(1)

Where in an action for partition the party or parties interested, individually or collectively, to the extent of a half share or upwards in the land to which the action relates request the Court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale accordingly.

(2)

The Court may, if it thinks fit, on the request of any party interested, and notwithstanding the dissent or disability of any other party, direct a sale in any case where it appears to the Court that, by reason of the nature of the land, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of any of those parties, or of any other circumstance, a sale of the land would be for the benefit of the parties interested.

(3)

The Court may also, if it thinks fit, on the request of any party interested, direct that the land be sold, unless the other parties interested, or some of them, undertake to purchase the share of the party requesting a sale; and, on such an undertaking being given, may direct a valuation of the share of the party requesting a sale.

(4)

On directing a sale or valuation to be made under subsection (3) the Court may give also all necessary or proper consequential directions."

The Act repealed The Partition Act 1878 (WA). There are some differences in the language of the two statutes.

In Nullagine's submission, s 126 of the Act conferred only a limited discretion on the Supreme Court in that for "good reason" it might direct partition rather than sale. Decisions suggesting a wider discretion to refuse any relief, it was said, are explicable in terms of the language of particular statutes. This argument is persuasive.

In Bray v. Bray, ^[F59] where the language of s 4(1)(b) of the Partition Act 1900 (NSW) was virtually identical to s 126(1) of the Act, Knox CJ said: ^[F60]

"So far as I can see, the object of the Act was to provide an alternative remedy to partition. ... I think that it is clear that ... what the Court has to consider is which is the better course for all parties between two alternatives, namely, is it better that there should be a partition or that there should be a sale, and the onus of showing that partition is better, where the owners of more than one half of the property desire a sale, is upon the person opposing a sale."

And Higgins J said: ^[F61]

"I regard a sale as an alternative to a partition and not to the status quo".

The weight of authority leads inevitably to the conclusion that s 126 is concerned with the options available to the Court and that the words "unless it sees good reason to the contrary" are directed at the power to order sale as opposed to partition. ^[F62] At common law one co-owner could not insist upon partition of the land. The right to compel partition derived from the statutes of partition of 1539 and 1540. ^[F63] Partition was often impracticable or inconvenient; nevertheless the courts held that there was no power to refuse that statutory remedy. ^[F64]

In consequence the remedy of sale was introduced by The Partition Act 1868 (UK) ^[F65] and by comparable legislation in the Australian colonies. ^[F66] But sale was made available as an alternative to partition; the courts were obliged to grant the remedy of sale unless there was good reason not to do so and to direct partition instead. ^[F67] Where a discretion to refuse any relief has been held to exist, it has been because the language of the legislation clearly points to the existence of such a discretion. ^[F68] Section 126 of the Act is substantially similar to provisions contained in The Partition Act 1878 (WA) and no such discretion may be found in its language. The only discretion is that to which reference has already been made, namely, to refuse sale and to order partition for "good reason".

The grant of special leave

The grant of special leave to appeal to this Court was confined to grounds which were identified as follows:

"The Full Court erred in holding that:

2.1

the contractual right of pre-emption of clause 4(b) in respect of a co-owner's half interest in land prevailed over the co-owner's right to seek a partition or sale of the whole of the land, which could only be exercised after the contractual steps of clause 4(b) had been taken; 2.2 clause 4(b) was intended to operate as long as the parties remained co-owners of the property; 2.3 the Court had no power or discretion to order a sale or partition in the face of clause 4(b); 2.4 clause 4(b) did not constitute an objectionable restraint on alienation despite the obligation of a vendor of a half interest to sell only to a purchaser prepared to enter into a Deed of Covenant to abide by the Occupation Deed."

For that reason some issues which were resolved by the Full Court no longer arise. Thus the issue of whether The Club held over as a quarterly tenant of the car park is not before this Court.

The grant of special leave was expressed to be "subject to the condition that any reliance on the proviso be restricted to an argument which, if successful, would not involve the matter being sent back for further evidence". The "proviso" referred to in the grant of special leave is the requirement that anyone purchasing a co-interest in the land agree to be bound by the terms and conditions contained in cl.4(b) of the occupation deed. The consequence of the restricted grant of special leave is that were this Court to hold that there was a restraint on alienation arising from the mere existence of the proviso, Nullagine would be free to argue that this brings down cl.4(b). But, it would not be open to Nullagine to offer as an additional argument that the restraint was unreasonable, that being a matter on which it would be necessary to call evidence, for instance to support a case that the requirement depressed the price which a co-owner might obtain for its interest. In its written outline of submissions Nullagine said that it was common ground at trial that the effect of the proviso was to depress the price that would otherwise be paid for a half-interest in the land. But it became apparent during the hearing of the appeal that this was not common ground, rather that Nullagine had misunderstood The Club's argument in this regard. And it must be recognised that Nullagine appeared to rely upon the existence of the proviso as going both to an argument that the sub-clause purported to oust the jurisdiction of the Supreme Court under the Act and to an argument that the sub-clause constituted a restraint on alienation.

Clause 4(b) of the occupation deed

The Full Court (Malcolm CJ, with Pidgeon and Franklyn JJ concurring on this aspect) took the view that although the occupation deed was made between The Club and The Nullagine Group, the reference in cl.4 to the "parties hereto" must be taken as a reference to The Club and Nullagine only. ^[F69] This conclusion is supported by the contents of cl.4, in particular the terms of cl.4(b) whereby each party undertakes not to dispose of its share or interest in the land, except in accordance with the terms of the sub-clause. That obligation can be assumed only by someone with an interest in the land.

The next step in the Full Court's reasoning was that the confinement of cl.4 to The Club and Nullagine indicated that the covenants in the clause "were intended to be separate and independent provisions from those in cll.1 to 3". ^[F70] Clause 4(b) has no time limit fixed for its operation other than the absolute prohibition against disposal of an interest in the land for a period of three years from 1 October 1976.

I agree with the conclusion of the Full Court that cl.4 was intended to apply so long as the parties, that is The Club and Nullagine, remained tenants in common of the land. As Malcolm CJ said: ^[F71]

"Clause 4(b) places a restriction on alienation the purpose of which is to preserve the continuing rights of use and occupation of the other party in terms of the deed and the continuing application of provisions such as those relating to finance and management."

By "continuing rights" Malcolm CJ was referring to the provisions of the occupation deed other than those providing for exclusive use and occupation for the term of 10 years. The existence of continuing rights is borne out by recital (e) of the occupation deed which reads:

"The parties have agreed to enter into this Deed for the purpose of evidencing the terms and conditions upon which they shall mutually use and occupy the Land and the fixed improvements thereon upon Nullagine entering into possession of the Land and the fixed improvements thereon pursuant to the terms of the said agreement for sale."

By reason of cl.4(b) a co-owner wishing to sell its interest must first offer that interest to the other co-owner. If the parties cannot agree on a price for that interest, the price is fixed at 50% of the value of the land, that value to be determined by arbitration. That means no more and no less than the value of the land and improvements as they then stand, unaffected by anything else in the contractual relationship between the co-owners. The co-owner to whom the offer is made is not bound to buy at the price determined by arbitration but has 28 days from the determination of the price in which to do so. If the offer is not accepted within the period of 28 days, the co-owner wishing to sell may, within 12 months from the original offer to sell to the other party, sell its interest on the open market without making a further offer to the other co-owner. By implication, if no sale takes place within 12 months, the co-owner may not sell its interest thereafter without first offering that interest again to the other co-owner, thereby setting in train the procedure of the sub-clause. There is however a restriction on the right to sell on the open market, namely, that any purchaser must agree to be bound by and to comply with "the terms and conditions herein contained". Effectively this means those terms and conditions that survived the termination of the rights of occupation provided for in cl.1(A). As a consequence any purchaser of the co-interest may in turn only sell that interest in accordance with the requirements of cl.4(b). That means going through the procedure of first offering the interest to the other co-owner as already described. The absolute prohibition against sale with which cl.4(b) concludes is finite in time, expiring after a period of three years from 1 October 1976. That period of time had long since expired when the events giving rise to the litigation occurred and the prohibition has no further operation.

Ousting the jurisdiction of the Supreme Court?

In dealing with the argument that a contractual restraint on invoking the jurisdiction of the Court under the Act will be enforced by the courts, there are a number of relevant authorities. But a useful starting point is one of the most recent, Re Permanent Trustee Nominees (Canberra) Ltd., ^[F72] which involved an agreement between co-owners of land that neither would (except after 12 months prior notice to the other) make application to the Supreme Court for the appointment of trustees on statutory trusts for sale or partition. The decision of the Full Court of the Supreme Court of Queensland (Kelly SPJ, Connolly and Moynihan JJ) was that the agreement was not void as ousting the jurisdiction of the Court; that it was not void as fettering the exercise of the jurisdiction of the Court, being a jurisdiction which involved a proprietary remedy in which the co-owners alone were interested; and (Connolly J not deciding) that it was not void as amounting to a restraint on alienation. The restriction on approaching the Court was only a restriction that required 12 months notice but it was of a continuing nature.

In the present case there are, as has already been noted, two restrictions. One is an agreement not to sell or dispose of an interest in the land within three years, the operation of which has long since ceased. That is not an issue in the appeal. The other is unlimited in time but is a covenant by each party not to dispose of its interest in the land without first offering that interest to the other party in accordance with cl.4(b). If the offer is not accepted in the time provided, the balance of the sub-clause comes into operation.

The mere existence of a right of pre-emption between co-owners does not oust the jurisdiction of the Supreme Court of Western Australia to make orders under s 126 of the Act. It imposes terms on which a co-owner may invoke the exercise of that jurisdiction. Clause 4(b) is concerned with the disposition of a co-owner's interest in the land, not directly with the sale of land held in co-ownership. Nevertheless, on the proper construction of the sub-clause, it operates so as to prevent a co-owner seeking an order for sale of the land without first offering its interest in the land to the other co-owner. A sale of the land necessarily involves a sale of each co-owner's interest and there is considerable unreality in regarding a sale of the land pursuant to an order of the Supreme Court as not touching the rights and obligations of the parties under cl.4(b).

Although s 126 of the Act speaks of a sale of "the land", that is clearly a compendious way of referring to the estates or interests of the "parties interested" in the land. ^[F73] What is sold pursuant to an order of the Supreme Court is the estate or interest of each co-owner, not some independent entity. And it is the estate or interest of each co-owner that is transferred, whether the transfer is executed by the co-owners themselves or by someone appointed by the Court to do so. ^[F74] For Nullagine to seek an order for sale, as it has done, is to seek to put it out of its power to offer its "share or interest in the Land" to The Club in accordance with its undertaking in cl.4(b) of the deed. The very object of cl.4(b) is to give a co-owner the opportunity to secure the interest of the outgoing co-owner on certain terms. That opportunity is surely lost or seriously diminished if the land is sold by order of the Court, even if the remaining co-owner is given leave to bid at auction.

The sub-clause places a restriction on the ability of the co-owners to approach the Court. But the restriction is one which the parties have agreed to in their own interests ^[F75] and is one which of itself does not adversely affect the party wanting to sell. The reason is simply that if the right of pre-emption is exercised the party wishing to sell would normally receive half the value of the land and the improvements. The restriction might be said to fetter the exercise of the jurisdiction of the Court in the sense that certain steps must be taken before the exercise of that jurisdiction may be invoked. But it does not oust the jurisdiction of the Court or fetter the exercise of that jurisdiction in any unacceptable way. ^[F76] The parties should be free, in their own interests, to qualify the right to have the land sold by order of the Court. And that is so even though a co-owner wishing to sell its interest will have to go through the requisite procedure again if a sale is not effected within 12 months of the original offer to sell to the other co-owner.

Clause 4(b) is awkwardly framed but, as I read it, it is the right of pre-emption to which effect must be given before a co-owner may invoke the jurisdiction of the Court under s 126 of the Act. The proviso does not of itself stand in the way of an approach to the Court except in so far as it may revive the right of pre-emption after a sale. But this does no more than create a pre-emption provision that may be of continuing operation. Once a co-owner has offered its interest to the other co-owner in accordance with cl.4(b) and no sale results, it is reading too much into the sub-clause to say that the co-owner wishing to sell may not thereafter apply to the Court for an order for sale.

The aim of cl.4(b) is to regulate the position of co-owners vis-a-vis each other, notwithstanding changes in their identity from time to time. The Club argued that the effect of cl.4(b) was to create a self-perpetuating renewal of the right of pre-emption which effectively precluded a co-owner from ever invoking the jurisdiction of the Supreme Court under s 126 of the Act. If that were the proper construction of the sub-clause, The Club would face substantial hurdles in its argument that there was no restraint on alienation. But I do not read the provision in this way. In effect it creates a continuing right of pre-emption, with "breathing spaces" during periods of 12 months in which a co-owner is free to sell its interest on the open market without going through the procedure of offering that interest to the other co-owner. But, subject to the obligation to first offer its interest to the other co-owner, a co-owner may sell its interest in the land or apply to the Supreme Court for an order for sale of the land.

There are several decisions cited in Halsbury's Laws of England ^[F77] in support of the proposition that:

"The right to partition may be lost by agreement between the parties for disposal of the property in a different manner."

Those decisions are Peck v. Cardwell; ^[F78] Dale v. Hamilton; ^[F79] Redwood v. Redwood; ^[F80] and Dimsdale v. Robertson. ^[F81] To these should be added Fletcher v. Ashburner. ^[F82] Counsel for Nullagine sought to distinguish these cases as relating to partnership agreements. But, as the judgment of Malcolm CJ demonstrates, the existence of a partnership arrangement was not crucial to the decisions in those cases. ^[F83] There is nothing contrary to public policy in co-owners agreeing on a formula for the disposition of their co-interests in the way in which these co-owners have agreed.

Jurisdiction and the grant of special leave

I have spent some time in dealing with the relationship between s 126 of the Act and cl.4(b) of the occupation deed to reach the conclusion that the exercise of jurisdiction under s 126 is qualified by the terms of the sub-clause. This has involved two aspects: the proper construction of cl.4(b) and the legal implications of a provision which purports to affect the jurisdiction of a court. At the same time I must express serious reservations as to whether, within the scope of the grant of special leave to appeal, it is open to Nullagine to take the construction point. Certainly, counsel for Nullagine did not advance the construction point in support of the application for special leave to appeal. Nevertheless, it might be said that the point is open having regard to par.2.1 of the grounds authorised by the grant of special leave, set out earlier in these reasons. To this there are two answers. The first is that it would be curious for the Court to give special leave to appeal by reference to an argument which had not been advanced. The second is that the terminology of par.2.1 is "prevailed". This is the language of priority between competing provisions and does not, to me, evidence an intention to argue that, as a matter of construction, cl.4(b) of the occupation deed has nothing to say as to the entitlement of Nullagine to seek an order for the sale of the land pursuant to s 126 of the Act.

Restraint on alienation

The remaining question is whether the existence of cl.4(b), in particular the requirement that any purchaser of an interest in the land assume the duties and obligations contained in the sub-clause, constitutes of itself a restraint on alienation such that it brings down the whole of the sub-clause. It is at this point that the condition attached to the grant of special leave to appeal becomes important. To the extent that Nullagine might wish to argue that the existence of this requirement depressed the price which it would otherwise get for its interest in the land on the open market and to the extent that this proposition required the production of evidence to substantiate it, the restriction in the grant would preclude Nullagine from arguing that proposition. In other words, to succeed on this point Nullagine must demonstrate that the requirement of itself constitutes a restraint on alienation which renders nugatory the whole of cl.4(b). The reason for the restriction in the grant of special leave is that, except in the absolute terms stated, the proposition Nullagine might now wish to argue was not before the Full Court. Even in its absolute form it does not seem to have played any substantial part in the judgments of the Full Court, no doubt reflecting the way in which the matter was argued in that Court.

In this regard Nullagine relied primarily upon what was said by Dixon CJ in Hall v. Busst ^[F84] to the effect that contractual arrangements may constitute an impermissible restraint on alienation. Hall v. Busst was discussed by Needham J in Reuthlinger v. MacDonald ^[F85] where his Honour said:

"If I were free to decide the issue, I would hold that the doctrine does not apply to contractual restraints, unrelated to the grant or transfer of property. But the passage I have set out from the judgment of Dixon CJ ^[F86] appears, in terms, to state the contrary."

The Court was not invited to reconsider what was said in Hall v. Busst but, in my view, nothing in the judgments in that case leads to a conclusion that the proviso in cl.4(b) of the occupation deed constitutes a restraint on alienation that would render the sub-clause ineffective. As Dixon CJ and Menzies J construed the indenture in question, the purchaser under a contract for the sale of land could not deal with her interest without the vendor's consent. Although Fullagar J, the other member of the majority, treated the provision as no more than a right of first refusal in the vendor, his Honour was influenced by the fact that the value of the land was fixed in such a way that it was unlikely to reflect its true worth. Even if the proviso in cl.4(b) constituted a restraint on alienation, there would be a question as to its severability.

However, there is a danger of inflating the proviso beyond its true significance. As between Nullagine and The Club, the right of pre-emption does not in truth constitute a restraint on alienation. If the right is exercised, the co-owner wishing to sell receives one half of the value of the land. If the right is not exercised, the co-owner wishing to sell may do so. The requirement that any purchaser assume the duties and obligations in cl.4(b) does no more than put the purchaser in the position of an original co-owner. That is, as between the purchaser and the remaining co-owner there is a right of pre-emption which operates to the benefit of both co-owners. It ensures that if the right is exercised, the co-owner wishing to sell will receive half the value of the land, which may be more than the value of a co-owner's interest. If the right is not exercised, the co-owner wishing to sell may do so on the open market or may invoke the jurisdiction of the Supreme Court and seek an order for sale. All that the proviso does is place any purchaser in the position of an original co-owner. That does not constitute a restraint on alienation of a co-owner's interest. It must be remembered that Nullagine has not offered to sell its interest to The Club in accordance with cl.4(b) of the occupation deed. It eschews any obligation to do so.

It may not be appropriate simply to dismiss the appeal. The order of the Full Court, apart from dismissing Nullagine's claim and making orders as to costs, contains this paragraph:

"3.

There be a declaration on the counterclaim that the respondent (plaintiff) may only dispose of its interest in the land in the manner provided for in clause 4(b) of the Occupation Deed referred to in paragraph 3 of the Defence."

Having regard to differences in the approach taken in this judgment and the approach taken in the judgments of the Full Court, a declaration in those terms may leave questions unanswered. It is desirable to spell out with greater clarity any declaratory or other relief to which The Club is entitled. The parties should be permitted to make written submissions in this regard.