Royal Botanic Gardens and Domain Trust v South Sydney City Council

[2002] HCA 5

Royal Botanic Gardens and Domain Trust
vSouth Sydney City Council

Court:
High Court of Australia

Judges: Gleeson CJ
Gaudron J
McHugh J
Gummow J
Kirby J
Hayne J
Callinan J

Subject References:
Contract
Interpretation
Ambiguous term of lease
Admissibility of evidence of surrounding cir-cumstances to assist in interpretation of ambiguous contract or term
Term that lessor 'may have regard' to certain matters
Whether lessor limited to consideration of those matters
Public or statutory bodies as parties to lease
Relevance of legislation relating to parties in order to construe term of lease
Contract
Terms and conditions
Implied obligation or duty of good faith and fair dealing

Legislative References:
Registration of Deeds Act 1897 (NSW) - The Act
Sydney Corporation Act 1932 (NSW) - The Act
Fourth Schedule of the Local Government (Areas) Act 1948 - s 25(1)
City of Sydney Act 1988 (NSW) - The Act
Crown Lands Consolidation Act 1913 (NSW) - Section 5(1)
Public Trusts Act 1897 (NSW) - s 3
Domain Leasing Act 1961 (NSW) - The Act
Royal Botanic Gardens and Domain Trust Act 1980 (NSW) - s 5(1)
Real Property Act 1900 (NSW) - The Act
Conveyancing Act 1919 (NSW) - s 23B(1)

Hearing date: 6, 7 September 2001
Judgment date: 14 February 2002

Canberra

Orders

Appeal dismissed with costs.

[1]
South Sydney Council v Royal Botanic Gardens [1999] NSWCA 478 ; BC9908533.

[2]
(1913) 16 CLR 404 at 417-23.

[3]
(1913) 16 CLR 404 at 421.

[4]
(1982) 149 CLR 337 at 352; 41 ALR 367 at 374-5.

[5]
In particular, speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381 at 1383-5; [1971] 3 All ER 237 at 239-41; L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 at 261 ; [1973] 2 All ER 39 at 53; and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-7; [1976] 3 All ER 570 at 574-6.

[6]
Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-6; [1976] 3 All ER 570 at 574.

[7]
(1982) 149 CLR 337 at 401; 41 ALR 367 at 416.

[8]
(2001) 178 ALR 634 at 636-7 [8], 649 [69], 654 [90], 664 [124]; 75 ALJR 775 at 777, 786, 790, 797-8.

[9]
6 Vict 3 .

[10]
By, respectively, Acts Nos 14 Vict 41 , 43 Vict 3 , and Act No 35 of 1902 .

[11]
(1959) 102 CLR 54 .

[12]
(1970) 123 CLR 574 .

[13]
(1954) 91 CLR 353 at 360.

[14]
Section 6(V) of that Act stated:
"Instruments which are registered or require to be registered under the provisions of the Real Property Act shall not be affected by the provisions of this Act."

[15]
Helmore, The Law of Real Property in New South Wales , 2nd ed, 1966, pp 99-102.

[16]
To satisfy the Statute of Frauds requirement of s 54A of the Conveyancing Act.

[17]
(1882) 21 Ch D 9 ; see also York House Pty Ltd v FCT (1930) 43 CLR 427 at 436; Patti v Belfiore (1958) 100 CLR 198 at 210; Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 250-3, 261-2; 89 ALR 522 at 526-9, 535.

[18]
cf Queensland Electricity Generating Board v New Hope Collieries Pty Ltd [1989] 1 Lloyd's Rep 205 at 210.

[19]
Codelfa Construction Pty Ltd v State Rail Authority (NSW ) (1982) 149 CLR 337 at 352 ; 41 ALR 367 at 374-5.

[20]
[1998] 1 WLR 896 at 912-13; [1998] 1 All ER 98 at 114-15.

[21]
[2001] 2 WLR 735 at 739, 749; [2001] 1 All ER 961 at 965, 975; cf Melanesian Mission Trust Board v Australian Mutual Provident Society [1997] 1 NZLR 391 at 394-5; Yoshimoto v Canterbury Golf International Ltd [2001] 1 NZLR 523 at 542.

[22]
Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 403 [17] ; 155 ALR 614 at 619.

[23]
The authorities are collected and discussed by Finn J in Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 188-98 ; 146 ALR 1 at 32-42.

[24]
The history is described by Callinan J at [117]. See also the reasons of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ (the joint reasons) at [3].

[25]
South Sydney City Council v Royal Botanical Gardens and Domain Trust (unreported, SC(NSW), 29 July 1997 ) per Hodgson J (reasons of the primary judge).

[26]
South Sydney Council v Royal Botanic Gardens [1999] NSWCA 478 ; BC9908533.

[27]
Reasons of the primary judge at 37.

[28]
Specifically that "may" in cl 4(b)(iv) should be read as "may only".

[29]
Reasons of the primary judge at 46-7.

[30]
[1999] NSWCA 478 ; BC9908533 at [44] per Spigelman CJ, [52] per Beazley JA, [74] per Fitzgerald JA.

[31]
eg R v Kirby ; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 ; Re Wakim ; Ex parte McNally (1999) 198 CLR 511 ; 163 ALR 270 .

[32]
eg Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 178 ALR 253 ; 75 ALJR 600 .

[33]
Emmens v Pottle (1885) 16 QBD 354 at 357-8 noted Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 519.

[34]
McFarlane v Tayside Health Board [2000] 2 AC 59 at 82 ; [1999] 4 All ER 961 at 977. In the case of commercial contracts, commercially sensible constructions should be preferred: Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 at 201 ; [1984] 3 All ER 229 at 233; Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 at 770-1 ; [1997] 3 All ER 352 at 371-2.

[35]
McFarlane v Tayside Health Board [2000] 2 AC 59 at 82 ; [1999] 4 All ER 961 at 977-8.

[36]
[1999] NSWCA 478 ; BC9908533 at [71]: the rent determined by the trust from 1 May 1991 to 30 April 1994 was $500,000 per annum; from 1 May 1994 to 30 April 1995 it was $500,000 per annum. From 1 May 1995 to 30 April 1996 it was $550,000 per annum. From 1 May 1996 to 30 April 1997 it was $600,000 per annum.

[37]
Joint reasons at [1]-[3]; reasons of Callinan J at [118]-[134].

[38]
The 1961 Act was repealed by the 1980 Act, s 25. The applicable legislation is explained in the joint reasons at [13]-[18].

[39]
Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; cf Fashion Fabrics of Iowa Inc v Retail Investors Corp 266 NW 2 d 22 (1978) at 25.

[40]
The provisions of cl 1 are set out in the joint reasons at [4]; the relevant provisions of cl 4 are contained in the joint reasons at [5] and in the reasons of Callinan J at [125].

[41]
Joint reasons at [31]-[35].

[42]
[1999] NSWCA 478 ; BC9908533 at [56]-[63] per Fitzgerald JA.

[43]
[1999] NSWCA 478 ; BC9908533 at [66]-[72].

[44]
cf [1999] NSWCA 478 at [12] referring to Sudbrook Trading Estate Ltd v Eggleton [1983] 1 AC 444 at 477, 483-4; [1982] 3 All ER 1 at 5, 10.

[45]
Reasons of the primary judge at 44-8.

[46]
[1999] NSWCA 478 ; BC9908533 at [128]-[129] per Fitzgerald JA.

[47]
[1999] NSWCA 478 ; BC9908533 at [45] per Spigelman CJ, [110]-[112] per Fitzgerald JA.

[48]
[1999] NSWCA 478 ; BC9908533 at [17].

[49]
[1999] NSWCA 478 ; BC9908533 at [2].

[50]
[1999] NSWCA 478 ; BC9908533 at [44].

[51]
Like the primary rule which governs the interpretation of treaties: De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 682 ; 139 ALR 417 at 447.

[52]
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic ) (2001) 181 ALR 307 at 319 [46] ; 75 ALJR 1342 at 1351; Victorian WorkCover Authority v Esso Australia Ltd (2001) 182 ALR 321 at 339 [63] ; 75 ALJR 1513 at 1526-7; Allan v Transurban City Link Ltd (2001) 183 ALR 380 at 392-3 [54] ; 75 ALJR 1551 at 1561; cf Brodie v Singleton Shire Council (2001) 180 ALR 145 at 209-10 [231]-[232] ; 75 ALJR 992 at 1038.

[53]
Commonwealth v Yarmirr (2001) 184 ALR 113 at 180 [249] ; 75 ALJR 1582 at 1630.

[54]
Hayne, "Letting Justice Be Done Without the Heavens Falling" (2001) 27 Monash University Law Review 12 at 16.

[55]
Burns Philp Hardware Ltd v Howard Chia Pty Ltd (1987) 8 NSWLR 642 at 645-6.

[56]
cf Perry v Wright [1908] 1 KB 441 at 458; Wallace v Stanford (1995) 37 NSWLR 1 at 9, 10, 23; cf at 19?20.

[57]
[1999] NSWCA 478 ; BC9908533 at [3], [83].

[58]
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109.

[59]
cf Allan v Transurban City Link Ltd (2001) 183 ALR 380 at 389 [40] ; 75 ALJR 1551 at 1559.

[60]
Tepko Pty Ltd v Water Board (2001) 178 ALR 634 at 636-7 [8], 649 [69], 664 [124]; 75 ALJR 775 at 777, 786, 797-8; mentioned in the joint reasons at [12] fn 8 .

[61]
Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 343-4; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 195-7 ; 146 ALR 1 at 40-1; Webster v Auckland Harbour Board [1983] NZLR 646 at 649-51.

[62]
Commonwealth v Yarmirr (2001) 184 ALR 113 at 182 [254] ; 75 ALJR 1582 at 1631.

[63]
cf Annetts v McCann (1990) 170 CLR 596 at 604 ; 97 ALR 177 at 183; Re Minister for Immigration and Multicultural Affairs ; Ex parte Miah (2001) 179 ALR 238 at 251 [52] ; 75 ALJR 889 at 899.

[64]
1961 Act, s 3(1).

[65]
Reasons of the primary judge at 32-6.

[66]
[1999] NSWCA 478 ; BC9908533 at [8]-[10] applying Thorby v Goldberg (1964) 112 CLR 597 at 613; Meehan v Jones (1982) 149 CLR 571 at 581, 589-90; 42 ALR 463 at 469, 475-6.

[67]
Hillas & Co Ltd v Arcos Ltd (1932) 43 Ll L Rep 359 at 371; Powell v Braun [1954] 1 WLR 401 at 404-5; [1954] 1 All ER 484 at 485-6; Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 at 614-17 ; 43 ALR 68 at 78-80; cf Queensland Electricity Generating Board v New Hope Collieries Pty Ltd [1989] 1 Lloyd's Rep 205 at 209-10.

[68]
Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 256, 263-8; Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 at 369; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR 41-703; Far Horizons Pty Ltd v McDonald's Australia Ltd [2000] VSC 310 ; BC200004860 at [120].

[69]
Restatement of Contracts , 2nd ed, vol 2, 1981, §205; Pratt Contractors Ltd v Palmerston North City Council [1995] 1 NZLR 469 at 478-83; Martselos Services Ltd v Arctic College (1994) 111 DLR (4th) 65.

[70]
eg Peden, "Incorporating Terms of Good Faith in Contract Law in Australia" (2001) 23 Sydney Law Review 222; Renard, "Fair Dealing and Good Faith" in Saunders (ed), Courts of Final Jurisdiction , 1996, p 63; Farnsworth, "Good Faith in Contract Performance" in Beatson and Friedmann (eds), Good Faith and Fault in Contract Law , 1995, p 153; Staughton, "Good Faith and Fairness in Commercial Contract Law" (1994) 7 Journal of Contract Law 193; Lücke, "Good Faith and Contractual Performance" in Finn (ed), Essays on Contract , 1987, p 155.

[71]
Sons of Thunder Inc v Borden Inc 690 A 2 d 575 (1997).

[72]
Sons of Thunder Inc v Borden Inc 690 A 2 d 575 (1997).

[73]
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283 ; 16 ALR 363 at 376-7 (PC); Codelfa Construction Pty Ltd v State Rail Authority (NSW ) (1982) 149 CLR 337 at 353 ; 41 ALR 367 at 375-6; Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at 121-2 ; 55 ALR 417 at 472-3; Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226 at 241 ; 64 ALR 481 at 489; Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 185 ALR 335 at 379-2 [156]-[164]; Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 256; cf Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84 at 96-7 ; 117 ALR 393 at 406.

[74]
In this I agree with the joint reasons at [39] and the reasons of Callinan J at [156].

[75]
Abebe v Commonwealth (1999) 197 CLR 510 at 554 [116] ; 162 ALR 1 at 33; see also Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 at 615 ; 43 ALR 68 at 78-9; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410 ; [1984] 3 All ER 935 at 950-1.

[76]
This is what the trust stated in its amended points of defence.

[77]
1980 Act, s 25.

[78]
By the 1980 Act, Sch 3, cl 3(2)(e), all deeds entered into by the trustees under the 1961 Act, in force immediately before the commencement of the 1980 Act, "shall be deemed to be deeds ... entered into with the Trust".

[79]
Contrast the legislation referred to in Puntoriero v Water Administration Ministerial Corp (1999) 199 CLR 575 at 578 [5], 602-3 [78]-[79]; 165 ALR 337 at 340, 359.

[80]
1980 Act, s 7(1).

[81]
eg Re Wakim ; Ex parte McNally (1999) 198 CLR 511 at 553 [45] ; 163 ALR 270 at 286; Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 at 35 ; [1999] 4 All ER 705 at 711.

[82]
[1999] NSWCA 478 ; BC9908533 at [66]-[67].

[83]
In the early years of the informal lease, when the SCC was obliged to reduce its very large capital investment, and to service a large interest debt in respect of that investment, it could well have been a proper exercise of the power to determine a "fair and reasonable rent" to keep that rent relatively small. When, in time, the income from the parking station substantially became pure profit to the SCC (and later the council), and that body could, in any case, pass on to users a "fair and reasonable" rent, a consideration of the opportunity costs would be neither unreasonable nor unfair.

[84]
cf Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 194-7 ; 146 ALR 1 at 39-41; Pratt Contractors Ltd v Palmerston North City Council [1995] 1 NZLR 469 at 478-80; Seddon, Government Contracts , 2nd ed, 1999, p 236 [7.15]; Taggart, "Corporatisation, contracting and the courts" (1994) Public Law 351; O'Brien, "Administrative Law -- Can it come to grips with tendering and contracting by public sector agencies?" in Pearson (ed), Administrative Law : Setting the Pace or being left behind ?, 1997, p 420; Schoombee, "The judicial review of contractual powers" in Pearson (ed), Administrative Law , 1997, p 433.

[85]
(1909) 8 CLR 316 at 323-4. See also Bacchus Marsh Concentrated Milk Co Ltd (in liq) v Joseph Nathan & Co Ltd (1919) 26 CLR 410 at 427.

[86]
Petelin v Cullen (1975) 132 CLR 355 at 359 ; 6 ALR 129 at 133; see also Prenn v Simmonds [1971] 1 WLR 1381 at 1384 ; [1971] 3 All ER 237 at 240.

[87]
cf Greig and Davis, The Law of Contract , 1987, p 414. The authors suggest that the reason for the reception in United States law of evidence of subjective intentions in the interpretation of contracts is the much greater fusion between common law and equity that has taken place in that country and the consequent reception of equitable principles into common law doctrines of contract.

[88]
Port Sudan Cotton Co v Govindaswamy Chettiar & Sons [1977] 2 Lloyd's Rep 5 at 11 commenting on Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235 ; [1973] 2 All ER 39 .

[89]
Manufacturers' Mutual Insurance Ltd v Withers (1988) 5 ANZ Insurance Cases 60-853 at 75,343 per McHugh JA; see also Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 at 337.

[90]
B & B Constructions (Aust) Pty Ltd v Brian A Cheeseman & Associates Pty Ltd (1994) 35 NSWLR 227 at 234.

[91]
Some judicial diehards still disapprove the use of extrinsic materials in aid of statutory construction: James Hardie & Co Pty Ltd v Wootton (1990) 20 NSWLR 713 at 719; cf at 718; Lemair (Aust) Pty Ltd v Cahill (1993) 30 NSWLR 167 at 172.

[92]
(1987) 162 CLR 514 at 518; 70 ALR 225 ; see also Re Coleman ; Ex parte Billing (1986) 68 ALR 416 at 420 ; 61 ALJR 37 at 39.

[93]
eg Acts Interpretation Act 1901 (Cth) s 15AB; Interpretation Act 1987 (NSW) s 34; see Pearce and Geddes, Statutory Interpretation in Australia , 5th ed, 2001, pp 58-63 [3.9]-[3.15]; Avel Pty Ltd t / as Leisure & Allied Industries v Attorney-General (NSW ) (1987) 11 NSWLR 126 at 128.

[94]
Rescission was a remedy available in the present case, sought by the council but rejected by the primary judge and the Court of Appeal; cf Taylor v Johnson (1983) 151 CLR 422 at 431 ; 45 ALR 265 at 270.

[95]
This is why the fiction of parliamentary "intention" should not be used in relation to statutes: Commonwealth v Yarmirr (2001) 184 ALR 113 at 185 [261]-[262] ; 75 ALJR 1582 at 1633-4.

[96]
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 913; [1998] 1 All ER 98 at 114-15.

[97]
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 at 771 ; [1997] 3 All ER 352 at 372.

[98]
cf Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912-13; [1998] 1 All ER 98 at 114-15; Bank of Credit and Commerce International SA v Ali [2001] 2 WLR 735 at 739 [8] ; [2001] 1 All ER 961 at 965.

[99]
(1982) 149 CLR 337 at 352; 41 ALR 367 at 374-5. In this I agree with the joint reasons at [39].

[100]
Reasons of the primary judge at 37.

[101]
Reasons of the primary judge at 45-6.

[102]
Codelfa Construction (1982) 149 CLR 337 at 353 ; 41 ALR 367 at 375; New South Wales Cancer Council v Sarfaty (1992) 28 NSWLR 68 at 77.

[103]
Arrale v Costain Civil Engineering Ltd [1976] 1 Lloyd's Rep 98 at 101 per Lord Denning MR.

[104]
B & B Constructions (Aust) Pty Ltd v Brian A Cheeseman & Associates Pty Ltd (1994) 35 NSWLR 227 at 233. Note that a wider range of evidence may be considered by a court in a claim for rectification: Frederick E Rose (London) Ltd v Wm H Pim Junr & Co Ltd [1953] 1 Lloyd's Rep 84 .

[105]
White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266 at 271, 281; cf Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 405, 446, 459.

[106]
Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 at 315, 328.

[107]
Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235 ; [1973] 2 All ER 39 ; Re Canadian National Railways and Canadian Pacific Ltd (1978) 95 DLR (3d) 242; New Zealand Diving Equipment Ltd v Canterbury Pipe Lines Ltd [1967] NZLR 961 at 978, 980, 984; cf Herriott v Crofton Holdings Ltd [1974] 2 NZLR 383 at 388.

[108]
cf Re CNR Co and City of Ottawa [1924] 4 DLR 1217 at 1221.

[109]
The primary judge made a declaration that in making a determination of rent pursuant to cl 4(b) of the lease, the lessor must act bona fide for the purpose of determining a rent which is no more than a fair and reasonable rent: South Sydney City Council v Royal Botanic Gardens and Domain Trust (unreported, SC(NSW), 10 October 1997 ) at p 8 per Hodgson CJ in Eq.

[110]
The Court of Appeal made a separate determination disposing of costs: South Sydney Council v Royal Botanic Gardens (No 2 ) [2000] NSWCA 242 ; BC200005211.

[111]
(1959) 102 CLR 54 .

[112]
(1959) 102 CLR 54 at 71.

[113]
(1959) 102 CLR 54 at 70.

[114]
cf Wallace v Stanford (1995) 37 NSWLR 1 at 9-10, 19-20, 23.

[115]
Codelfa Construction Pty Ltd v State Rail Authority (NSW ) (1982) 149 CLR 337 ; 41 ALR 367 .

[116]
(1982) 149 CLR 337 at 352; 41 ALR 367 at 375:
"Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting . We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract." (emphasis added)

[117]
Section 3 of the Domain Leasing Act provided:
"(1) Notwithstanding anything contained in any other Act, the trustees may, with the consent of the Minister for Lands, from time to time grant:

(a)
to the Council such leases, and licenses for the use, of such parts of the Domain as may be necessary for the purposes of or for purposes connected with the operation and maintenance by the Council of the car parking station and the moving footway leading thereto, constructed before the commencement of this Act by or on behalf of the Council on part of the Domain; and
(b)
to the Commonwealth such leases of such part of the Domain as may be necessary for the purposes of or for purposes connected with the operation and maintenance by the Commonwealth of the fuel oil installations constructed before the commencement of this Act by or on behalf of the Commonwealth on part of the Domain,

such terms or periods, at such rentals and subject to such covenants and conditions as the trustees, with the approval of the Minister for Lands, may determine.
(2) For the purposes of this section the trustees shall be deemed to hold an estate in fee simple in the land in respect of which their powers are exercised."

[118]
Powell v Braun [1954] 1 WLR 401 at 404-5 ; [1954] 1 All ER 484 at 485-6 per Evershed MR; Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 at 614-17 ; 43 ALR 68 at 78-80.

[119]
(1998) 44 NSWLR 349 .

[120]
[2001] NSWCA 187 ; BC200103318. A similar approach has now been taken in Victoria in Far Horizons Pty Ltd v McDonald's Australia Ltd [2000] VSC 310 ; BC200004860 and in the Federal Court in Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR 41-703.

[121]
It has been held that a covenant in a lease for a long term (99 years) requiring a lessee to undertake construction on land is enforceable by a decree of specific performance as damages would not be a sufficient remedy: Molyneux v Richard [1906] 1 Ch 34 . See also Wolverhampton Corporation v Emmons [1901] 1 KB 515 .

[122]
Local Government Act 1919 (NSW); Domain Leasing Act 1961 (NSW); Royal Botanic Gardens and Domain Trust Act 1980 (NSW).

[123]
Section 3 of the Domain Leasing Act.

[124]
(1998) 44 NSWLR 349 .

[125]
[2001] NSWCA 187 ; BC200103318.

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