AL COURT OF FEE RUSTRALIA CIPAL ae ISTRY CATCHWORDS REAL PROPERTY - Subdivision into units and common property of land held under Crown lease - Application to Supreme Court of Australian Capital Territory for order cancelling units plan - Cancellation part of scheme to substitute new units plan embracing additional parcel of land - Scheme opposed by some unit holders - Court required to have regard to rights and interests of those having estates or interests in leases of units - Provisional order made for cancellation of units plan subject to certain conditions - Extent of Court's power to impose conditions - Meaning of "rights and interests" of unit holders - Whether just and equitable to order cancellation - Principles applicable. Unit Titles Ordinance 1970 (A.C.T.), ss.1l, 25, 26, 97, 98, 99 GENA PTY. LIMITED & ANOR. v. THE PROPRIETORS ~ UNITS PLAN NO.139 & ORS. ACT G 34 of 1986 Sheppard, Kelly and Neaves JJ. 20 February 1987 Canberra IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 34 of 1986 DISTRICT REGISTRY wwe eww GENERAL DIVISION QN APPEAL F'ROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : GENA PTY. LIMITED First Appellant ARGOS PTY. LIMITED Second Appellant AND: THE PROPRIETORS - UNITS PLAN NO.139 First Respondent NICK KARVOUNARIS Second Respondent KOULA KARVOUNARIS Third Respondent STAN KOKOULIS Fourth Respondent IRENE KOKOULIS Fifth Respondent MINUTE OF QRDER JUDGES MAKING ORDER : Sheppard, Kelly and Neaves JJ. DATE OF ORDER : 20 February 1986 WHERE MADE : Canberra THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The cross-appeal of the second, third, fourth and fifth respondents be allowed. 3. The order made by the Supreme Court of the Australian Capital Territory on 20 May 1986 be set aside and in lieu thereof it be ordered that the application to that Court be dismissed. 4. The appellants pay the second, third, fourth and fifth respondents' costs of the appeal and cross-appeal. 5. The first respondent be at liberty to apply on 14 days' notice for such order as to the costs of the appeal and the cross-appeal as it may be advised. 6. All parties be at liberty to apply on 14 days' notice for such order as to the costs of the proceedings in the Supreme Court of the Australian Capital Territory as they may be advised. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA } ) AUSTRALIAN CAPITAL TERRITORY ) ) a) 2] DISTRICT REGISTRY No. A.C.T. G34 of 1986 GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : GENA PTY LIMITED and ANOR. Appellants THE PROPRIETORS - UNITS PLAN NO. 139 and ORS. Respondents a" z Sheppard, Kelly and Neaves JJ. : 20 February 1987 | REASONS FOR JUDGMENT SHEPPARD J.: In this matter I have had the advantage of reading the judgment to be delivered by Neaves J. I am thus saved the necessity of setting out the relevant legislation and much of the detail of the evidence. The essential problem in the case is that the second. third. fourth and fifth respondents ("the respondents"), who are the proprietors of the butcher's shop earried on in unit 7, will not consent to the proposed redevelopment unless the enlarged supermarket to be carried on in the new premises is prohibited from selling meat other than packaged meat which has been packaged off the premises. In other words they wish to preserve the existing position in order to nd . reduce the adverse effect on their business which they expect would result if the supermarket carried on a conventional butcher's business. It should be clear that the respondents are not entitled to the benefit of any covenant or agreement which prevents the supermarket selling unpackaged meat or meat which has been packaged on the premises. It is only because the supermarket has not presently the room to cut up meat on its premises that the respondents enjoy their advantage. In the learned primary Judge's view, justice and equity required the imposition of condition 3 which would operate to preserve the status quo. The submissions of the parties thus centred upon condition 3. In the primary submission of counsel for the appellants it was not within power and should be excised from his Honour's order leaving the balance of his order in force. In the submission of counsel for the respondents it was not within power, but the consequence of that conclusion was not that contended for by counsel for the appellants. Rather it was that the inability of the Court to impose the condition turned the order into one which was not just and equitable with the result that the application should have been dismissed. These submissions raise for consideration the question of the true construction of s. 97 of the Unit Titles Ordinance 1970, particularly sub-secs. (4) and (5) thereof. IT am clearlv of opinion that the condition was not authorized by sub-sec. 97/5) of the Ordinance. Relevantlv the sub-section provides that the Court shall make a provisional order (rather gy than a final order) for the cancellation of the units plan if it considers that it is necessary to impose conditions to be complied with before the making of a final order for the cancellation of the plan for the purpose of adjusting, as between all persons having registered estates or interests in the leases of the units, the respective rights and duties of those persons so far as they may be affected by the cancellation of the plan. The respondents presently have no right to restrain the carrving on of a conventional butcher's shop in the supermarket. As I have said. the advantage they have is due solely to the fact that the supermarket is not large enough to enable the operator to cut up and package meat on the premises as they now exist. If the proprietor were able to overcome this problem, there would be no legal reason why it could not carry ona conventional butcher's shop in the supermarket premises. Sub-section 97(5) empowers only the imposition of conditions for the purposes of adjusting the respective rights and duties of persons having registered estates or interests in the leases of the units. Since the respondents have no right to prevent the carrying on of a butcher's shop in the supermarket premises and the supermarket has no duty to the respondents not to do so. condition 3 cannot be a condition adjusting the respective rights and interests of the lessee of the supermarket and the respondents so far as they may be affected by the cancellation of the plan. If it is valid, its validity must derive from other provisions of the legislation. The only other possible source of power pursuant to which condition 3 could have been imposed is sub-sec. 97/4). A fundamental question is whether the words of sub-sec. 97/4) authorize the imposition of any conditions. The sub-section does not expressly provide for this to be done; sub-sec. 97(5), on the other hand, does authorize the imposition of conditions provided they are conditions of the kind contemplated by that sub-section. If there is a power conferred by sub-sec. 97(4) to impose conditions. it must stem from implications to be drawn from the words of the sub-section. The critical words are contained in the successive phrases, "having regard to the rights and interests of all persons having estates or interests ... in the leases of the units" and "it is just and equitable to do so". I qo to the first of these phrases. The essential question concerns the meaning of the word "interests" where it firstly appears in the sub-section. It is secondly used as part of the expression, "all persons having estates or interests ...". In the context of that expression it is plainly used in the sense of a legal or equitable interest capable of enforcement in a court. It was submitted by counsel for the appellants that it had the same meaning when used as part of the expression, "having regard to the rights and interests of all persons ...". In his submission its use in conjunction with the word "rights", coupled with the consideration that it was unlikely to have been used ina sense different from that in which it is used where it secondlv appears in the sub-section, led to the conclusion that this was its meanina. The contrary view is that the word "interests". where firstly used, should be given a far wider and less precise meaning. In the context in which it appears it should he construed to encompass, not onlv legal and equitable interests, but also such interests as derive from the leqitimate business or commercial concerns of a unit holder likely to be affected by the cancellation of a units plan. Having reflected on the matter, I have reached the conclusion that the word is used in the same sense each time it appears and thus has the restricted meaning contended for by counsel for the appellants. In other words, the section is not dealing with interests which are not legal or equitable in character. My conclusion in this reqard stems from a number of considerations. Firstly, a word in a section should not, prima facie, be qiven a different meaning from that which it plainly has when used in another place in the section. That rule of construction may be displaced by the context or by other considerations which indicate that the leqislature intended a different meaning. But the rule is a starting point. Then the word "interests", where it firstly appears, is used in conjunction with the word "rights", a word which clearly refers to legal or equitable rights capable of enforcement by a court. Next the section is designed to enable changes in legal and equitable estates and interests to be brought about provided its procedures are followed and the instant case is an appropriate one. That is the subject matter with which the section is dealing. It is not a gqeneral provision dealing with the eircumstances in which changes in the user of land or buildings may be authorized or permitted: cf. City Area Leases Ordinance 1936. s. 11A. Finallv, the construction which gives to the word the restricted meaning contended for by counsel for the appellants qives the section, in my opinion, a more cohesive operation because such a construction fits well with the words of sub-sec. 97(5). For all these reasons I am of opinion that the interests to which the Court may have regard in determining whether it is just and equitable to make an order for the cancellation of a units plan are leqal or equitable ones and no others. The only difference between them and those provided for in sub-sec. 97(5) is that those dealt with in that provision must be registered; there is no such requirement in sub-sec. 974). The advantageous position which the respondents have because of the inability of the supermarket to carry on a conventional butcher's business is not, therefore, an interest within the meaning of sub-sec. 97(4) any more than it is a right within the meaning either of that sub-section or of sub-sec. 97(5). It follows that the words, "having regard to the rights and interests of all persons having estates or interests ... in the leases of the units". cannot be a source of power for the imposition of condition 3. I turn to the second of the phrases in question which is really the gist of the sub-section. In essence it is. "The Court shall not make an order for the cancellation of a units plan unless it is satisfied that ... it is just and equitable so to do". A first question is whether the Court. in determining whether it is just and equitable to make the order. may have regard only to the rights and interests of all persons having estates or interests in the leases or to the entirety of the circumstances of the case as well. In mv opinion the better view is that it is bound to have regard to the entirety of the circumstances of the case. The Court is required to bear the cights and interests of all affected persons in mind in reaching its conclusion: but otherwise it is required to take account of the whole of the circumstances of the case which is before it. My reason for that conclusion derives from the use of the phrase "just and equitable". That is an expression of wide import usually giving to a court empowered to act in accordance with such a mandate avery wide discretion to take account of all matters and circumstances touching the matter before it and giving such weight to each as it thinks appropriate. It is this exercise upon which it must embark in order to determine whether it is just and equitable to make the order which the statute has empowered it to make. I have now expressed my view of the meaning of the two essential phrases in the sub-section. The critical question is whether, by implication. the Court is empowered to impose conditions or whether its only power, subject to the operation of sub-sec. 97(5), is either to grant or refuse to make the order for cancellation. Really the question is whether the Court, in order to see that justice and equity are done. may impose conditions in the absence of which its order would not be just and equitable. If there is a power to impose conditions independent of that conferred by sub-sec. 97(5), its existence can only derive from the use of the words "just and equitable" and the wide meaning and effect which those words should be given. But the section must be read as a whole. Particular account must be taken of the express power to impose conditions of a particular kind conferred by sub-sec. 97/5), Furthermore, sub-sec. 97(3) indicates that the Court may take one of three courses. It may make a provisional order or a final order for the cancellation of the plan, or it may dismiss the application. The circumstances in which it may make a provisional order are provided for expressly in sub-sec. 97(5). It is necessary that the order be provisional because conditions will need to be complied with and the order ought not to become final until they have been. This is a further pointer to the construction of sub-sec. 97(4). The only cases in which it will be appropriate to make provisional orders will be those in which the Court imposes conditions of the kind contemplated by sub-sec. 97(5). If no such conditions are imposed, the section does not contemplate the making of a provisional order. That in turn leads to the conclusion that the leqislature did not intend the Court to have power to impose conditions pursuant to sub-sec. 97(4). It is accordingly my opinion that the Court did not have power to impose condition 3 pursuant either to sub-sec. 97(4) or sub-sec. 97/5), During the argument there were submissions concerning the remaining conditions. Particular reference was made by counsel for the respondents to condition 4 which provides that the appellant, Arqos Pty Limited, at its own expense complete the erection of the building on Block 25 and complete the alteration of the building on Block 6 as shown in plans which were in evidence. In my opinion condition 4 is not a condition fallina within sub-sec. 97(5) and was therefore also beyond power. I do not express any view on the validity of the remaining conditions. It may be that some or all of these were authorized by sub-sec. 97(5). It is unnecessary to decide. What then follows from these conclusions? Should the order be left to operate without condition 3 (and condition 4) as part of it? His Honour's conclusion was that it was not just and equitable to make the order unless those conditions were imposed. A course open to this Court would be to send the matter back to the Supreme Court to be heard and determined aagain. I do not think it is necessary to take that course. As I have said, the section is one which authorizes interference with legal and equitable estates and interests and also with rights, but only if the case falls within the provisions of the section and it is just and equitable that such interference be authorized. At the moment the respondents have a lease of unit 7 which is one of the units in the shopping centre. They object to any change in their legal entitlement which will have the effect of taking away the practical advantage which they presently enjoy. The purpose of the application is to enable the supermarket to have much larger premises and thus change the nature of the shopping centre of which the respondents are a part. The respondents have no interest (using that expression broadly) in that matter unless the proposed changes may adversely affect their business. But, as the evidence discloses and the learned primary Judge has found, that would be the likely consequence of the making of an order which omitted condition 3. In those circumstances I am i0. unable to conclude that it is just and equitable that an order which does not preserve the advantage the respondents presently have is just and equitable. If one takes into account the invalidity of condition 4, the problem is exacerbated. It follows that the application should have been dismissed. Before concluding I should say a little of the course of the hearing before his Honour and before this Court. The matters argued before this Court were not the subject of argument before his Honour and he did not consider them. The order sought in the notice of appeal in the form in which it was when the appeal was called on for hearing sought, not the excision of condition 3, but a variation of it to enable the supermarket to sell packaged meat which had been packaged on the premises. It was only after counsel for the appellants beqan to develop his arqument that it was perceived, both by the respondents and this Court. that his argument had wider implications. It was then that more detailed consideration was given to the matter by all parties. We gave leave to the appellants to amend their notice of appeal and leave to the respondents to bring their cross appeal. Although the parties had to prepare part of their arqument, so to speak, on the run. no application for an adjournment was made and no submission was made that there should be some limited or special order as to costs. Nor was there any discussion concerning the costs of the proceedings in the Supreme Court in respect of which the learned primary Judge does not appear to have made any order. In the circumstances I would propose the following orders:- (1) The appeal be dismissed. (2) (3) (4) (5) 6) ll. The cross appeal be allowed. The order made by the Supreme Court of the Australian Capital Territory on 20 May 1986 be set aside and in lieu thereof it be ordered that the application made to that Court be dismissed. The appellants pay the second, third, fourth and fifth respondents' costs of the appeal and cross appeal. The first respondent be at liberty to apply on 14 days' notice for such order as to the costs of the appeal and crossd-appeal as it may be advised. All parties be at liberty to apply on 14 days' notice for such order as to the costs of the proceedings in the Supreme Court as they may be advised. I certify that this and the (0 Preceding Pages are a true copy of the reasons for judgment herein of The Honourable Mr Justice Sheppard. , "A A Assoclate Dated 20 FEBRUARY /927 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) ) No. ACT G34 of 1986 DISTRICT REGISTRY ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: GENA PTY. LIMITED Firstnamed Appellant ARGOS PTY. LIMITED Secondnamed Appellant AND: THE PROPRIETORS OF UNIT PLAN 139 Firstnamed Respondent NICK KARVOUNARIS Secondnamed Respondent KOULA KARVOUNARIS Thirdnamed Respondent STAN _KOKOULIS Fourthnamed Respondent IRENE KOKOULIS Fifthnamed Respondent CORAM: Sheppard, Kelly and Neaves JJ DATE: 20 February 1987 REASONS FOR JUDGMENT KELLY J: I have had the advantage of reading the draft reasons for judgment prepared by Sheppard and Neaves JJ. I agree with them that the appeal should be dismissed and the cross-appeal allowed and with the other orders they propose, I respectfully adopt their discussion of the evidence before the Supreme Court of the Australian Capital Territory. -2- I set out those parts of the Unit Titles Ordinance 1970 (the Ordinance) which seem to me to assist in resolution of the problem posed, namely, whether either of s.97(4) or (5) of the Ordinance can support the conditions which are the subject of challenge in the appeal and cross-appeal herein. "97.(1) A corporation, the administrator of a corporation or all or any of the members of a corporation may apply to the Court for an order for the cancellation of the units plan. (2) A copy of an application under this section shall be served on the Registrar, (3) On an application made under the last preceding sub-section, the Court may make a provisional order, or a final order, for the cancellation of the units plan or may make an order dismissing the application. (4) The Court shall not make an order for the cancellation of a units plan unless it is satisfied that, having regard to the rights and interests of all persons having estates or interests (whether registered or not) in the leases of the units, it is just and equitable to do so. (5) If the Court considers, on an application for an order under this section, that it 1s necessary to impose conditions, and give directions, to be complied with before the making of a final order for the cancellation of the units plan for the purpose of protecting the interests of the Commonwealth or for the purpose of adjusting, as between all persons having registered estates or interests in the leases of the units, the respective rights and-duties of those persons so far as they may be affected by the cancellation of the units plan, the Court shall make a provisional order for the cancellation of the units plan specifying the conditions and directions to be complied with before the making of a final order. (7) A final order may include directions to be complied with after the cancellation of the units plan and, in such a case, the order may be enforced as if it were a judgment of ~3- the Court obtained by a person for whose benefit the directions were given against the person required to comply with the directions, 98.(1) On the registration of an order for the cancellation of a units plan - (a) (b) (c) (a) the corporation is dissolved; the lease of the common property and the lease of each of the units are determined; the land comprised in those leases forms one parcel of land; and the persons who were, immediately before the registration of the order, the proprietors of the units become possessed of an estate of leasehold in the parcel of land as tenants in common in undivided shares proportional to the unit entitlement of their respective units, or, if a person was, immediately before the registration of the order, the proprietor of all the units, that person becomes possessed of an estate of leasehold in the parcel of land, for the term commencing on the registration of the order and expiring on the date on which the lease that was, by section 25 of this Ordinance, determined on the registration of the units plan would have expired 1f it had not been so determined and subject to the provisions, covenants and conditions to which that lease was subject on the date immediately before the registration of the units plan, as if a lease of the parcel of land had been granted to them or to him, as the case may be, by the Commonwealth under the City Area Leases Ordinance for that term and subject to those provisions, covenants and conditions. 99.(1) On the dissolution of a corporation under the last preceding section - (a) all rights, whether at law or in equity, vested in the corporation immediately before the dissolution are vested jointly in the persons who were, immediately before the dissolution, the members of the corporation; -4- (b) subject to the next succeeding sub-section, the persons who, immediately before the dissolution, were the members of the corporation are jointly and severally liable for all the liabilities of the corporation subsisting immediately before the dissolution; and (c) for the purposes of the last two preceding paragraphs, a reference in an instrument to the corporation shall be read as a reference to those persons. (2) On an application made to the Court before the order for the cancellation of the units plan is made, the Court may, 1f it considers, in the circumstances of the case, that 1t 1S just and equitable to do so, by order vary the operation of paragraph (a) or (b) of the last preceding sub-section in such Manner as the Court thinks fit. 100.(1) Where - (a) after the registration of a units plan, a building or other improvement on the parcel is damaged or destroyed; (b) an order for the cancellation of the units plan has not been made under this Part; and (c) an application for such an order is not pending, an application may be made to the Court for an order approving a scheme that makes provision for the reinstatement of the building or other improvement, or, in a case where a unit has been damaged or destroyed, for the elimination of that unit and for any consequential alteration of the units plan. 103. Each of the following persons has the right to appear and to be heard in support of, or in opposition to, an application made under section 97 or 100 of this Ordinance: (a) the corporation or, if an administrator has been appointed, the administrator; (b) a member of the corporation; (c) a person claiming to have an estate or interest in a unit; -5- (d) an insurer who has effected insurance of a building or other improvement on the parcel; and (e) the Minister." I respectfully agree, for the reasons given by Sheppard and Neaves JJ, that s.97(5) provides no support for either of the third and fourth "terms and conditions" set out in the order of the Supreme Court. Nor do I think that s.97(4) provides such support. As a matter of construction it seems to me that on an application for the cancellation of a units plan the only provision which permits of the imposition of conditions to be complied with before the making of a final order for the cancellation of the units plan is s.97(5). The sub-section is in marked contrast to s.97(4) the terms of which are directed, not to the imposition of conditions, but to the preservation of rights and interests. It seems to me that those rights and interests are those which flow directly from and as a result of the nature of the estates or interests (whether registered or not) which any person May have in a lease of one of the units of a units plan. Clearly such persons would include at least the lessee of a unit and any legal or equitable mortgagee of it. Significantly enough, s.97 makes no provision for service of a copy of an application on the persons referred to in sub-s.(4) although a copy of an application is to be served on the Registrar. One notes, of course, the rights of appearance given by s.103. An application may be made, inter alia, as in the instant case, as a result of a vote by a majority of the -6- corporation or, in an extreme case, by one member only of the corporation, Clearly the duty cast upon the Court to be satisfied under s.97(4) that it is just and equitable to order cancellation of a units plan can hardly be satisfied unless the Court is aware, at the least, of all persons who have estates or interests whether registered or not in the leases of the units concerned and the nature of those estates and interests. No doubt the Court might order that service of a notice of an application under s.97 be effected on all the persons referred to in s.97(4) and in an appropriate case might well be required, as a matter of justice, to insist upon service of such notices. It seems to me, however, that, under any circumstances, it is necessary that the Court consider all the rights and Interests of the persons having estates or interests in the leases of the units, no doubt after considering appropriate evidence as to what those rights and interests and who those persons are, Under s.98, registration of an order for the cancellation of a units plan effects a radical change in the nature of the registered interest in a unit of the units plan. What was before a single certificate of title in respect of a defined unit plus the share in the common property which practically the lessee has by virtue of membership of the corporation becomes simply a tenancy in common of a fraction proportional to the unit entitlement of his unit. An estate as tenant in common of a fraction of land is obviously less desirable in the eyes of mortgagees ~7J- and sublessees and has many attendant difficulties. It is because of those attendant difficulties, one would think, that the Ordinance was made. It seems to me, therefore, that s.97(4) has its work to do simply in relation to ensuring that it is just and equitable to cancel the plan having regard to the results attendant upon cancellation. This, in a given set of circumstances, may not be an easy task but it gives to the sub-section adequate meaning without the necessity for finding an implication that it permits of the imposition of conditions other than those referred to in s.97(5). But there is another reason why 1t seems to me that terms and conditions such as those sought to be imposed, which effectively amount to redevelopment conditions, ought not to be the subject of an order on an application under s.97. The Ordinance provides by s.100 for the situation which occurs when a building 1s damaged or destroyed. It makes no such provision in respect of redevelopment and I do not think the lacuna can be filled by attributing to s.97(4) a meaning which, 1n my respectful opinion, it does not properly bear. It follows, I think, that no such condition as 1s to be found in the third and feurth terms and conditions 1s permitted by s.97(4). In my opinion, therefore, the appeal should be dismissed and the cross-appeal allowed. Iocertaify that this and tue Sb. preveding pues are a true copy of the Roasons for Juugment herein of his Honour Mr. Justice Métly Krnceon Voie wren me Associate Dated: 2a." a | Na tar IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 34 of 1986 DISTRICT REGISTRY ee we ww GENERAL DIVISION ON APPRAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : GENA PTY. LIMITED First Appellant ARGOS PTY. LIMITED Second Appellant AND: THE PROPRIETORS - UNITS PLAN NO.139 First Respondent NICK KARVOUNARIS Second Respondent KOULA KARVOUNARIS Third Respondent STAN KOKOULIS Fourth Respondent IRENE KOKOULIS Fifth Respondent CORAM: Sheppard, Kelly and Neaves JJ. DATE: 20 February 1987 REASONS FOR JUDGMENT NEAVES J. This is an appeal and cross-appeal from a judgment of the Supreme Court of the Australian Capital Territory (Miles 2. C.d.) given on 20 May 1986 upon an application made to that Court under s.97 of the Unit Titles Ordinance 1970 (A.C.T.). The application sought an order for the cancellation of a certain units plan - identified as Units Plan No.139 - registered under the Real Property (Unit Titles) Ordinance 1970 (A.C.T.). the Court made a provisional order for cancellation of the units plan and imposed conditions, and gave directions, to be complied with before the making of a final order. It will be necessary to refer to these conditions and directions but, before doing so, it may be convenient to refer to the relevant legislative provisions and to identify the parties and their respective interests. The Unit Titles Ordinance 1970 (A.C.T.) ("the Unit Titles Ordinance") is described in its iong title as an Ordinance relating to the sub-division of land into units, unit subsidiaries and common property. Part III of the Ordinance (comprising ss.10-23) makes provision whereby the lessee under a lease of a parcel of land granted under, or continued in force by, the City Area Leases Ordinance 1936 (A.C.T.) ("the City Area Leases Ordinance") may obtain the approval of the Minister of proposals for the sub-division of the parcel under the Ordinance. Sub-section 11(1) entitles the lessee under such a lease to put forward proposals which provide for the sub-division of the parcel into not less than four units and common property and which may provide for one or more than one unit subsidiary appurtenant to a unit (sub-s.11(2)). The proposals are to include specified diagrams and other documents including a schedule specifying a whole number in respect of 3. each unit being the unit entitlement proposed for that unit, a whole number being the aggregrate unit entitlement proposed for all the units, the rent proposed to be reserved under the lease of each unit and, where the proposals provide for the erection or alteration of, or an addition to, a building, a copy of the plans and specifications for the erection, alteration or addition (ss.12, 13). Sub-section 16(1) prescribes certain conditions precedent to the approval of the proposals. One of the matters so prescribed is that each unit must be suitable for separate occupation and for use in a manner not inconsistent with the covenants in the lease of the parcel. Another is that the schedule of unit entitlement is reasonable, having regard to the respective values of the units. The Minister may, in his discretion, approve or refuse to approve the proposals if the lessee of the parcel 1s in breach of a covenant contained in the lease of the parcel or in breach of a provision of the City Area Leases Ordinance or a requirement made under that Ordinance (sub~-s.16(3)). Where the Minister has approved the proposals, the appropriate steps may be taken to have the necessary diagrams and schedules prepared for registration under the Real Property (Unit Titles) Ordinance 1970 (A.C.T.) (5.22). On and after registration of the units plan, the parcel is sub-divided in the manner specified in the diagrams in the units plan (s.24). Sections 25 and 26 provide: 4. "25. (1) On the registration of the units plan - (a) the lease of the parcel is determined; (b) the person who was, immediately before the registration of the units plan, the lessee of the parcel becomes possessed of an estate of leasehold in each unit for the term fixed under the next succeeding sub-section and subject to the provisions, covenants and conditions set out in the units plan in relation to that unit as if a separate lease of that unit for that term and subject to those provisions, covenants and conditions had been granted to him by the Commonwealth under the City Area Leases Ordinance; and (c) the corporation becomes possessed of an estate of leasehold in the common property for the term fixed under the next succeeding sub-section and subject to the provisions, covenants and conditions set out in the units plan in relation to the common property as if a lease of the common property for that term and subject to those provisions, covenants and conditions had been granted to the corporation by the Commonwealth under the City Area Leases Ordinance. (2) The term of the lease of a unit and of the lease of the common property commences on the registration of the units plan and expires on the date specified in the units plan, being the date on which, but for the operation of this section, the term of the lease of the parcel would have expired. (3) The estate of which a person or the corporation, as the case may be, becomes possessed under this section - (a) is subject to any mortgage referred to in section 10 of the Real Property (Unit Titles) Ordinance 1970; and (b) ais subject to, and has appurtenant to it, the easements created by section 27 of this Ordinance and any easement referred to in section 10 of that Ordinance. , 26 (1) The corporation shall hold the common property in trust for the persons who are for the 5. time being the members of the corporation as tenants in common in undivided shares proportional to the unit entitlements of their respective units, and shall afford those persons opportunity for the reasonable use and enjoyment of the common property. (2) The estate in the lease of the common property held by the corporation is not capable, either at law or in equity, of being transferred, assigned, sub-let or mortgaged." On and after the registration of the units plan, certain easements are created by virtue of the Ordinance (s.27). Another consequence of the registration of the units plan is that there is thereupon constituted a body corporate under the name "The Proprizretors - Units Plan No. ", the number to be included in the name being the number allotted to the units plan by the Registrar upon its registration (s.29). Such corporation is charged, inter alia, with the enforcement of its articles and the control, Management and administration of the common property (s.36). It is convenient to interrupt the reference to the relevant legislation at this point to mention that Units Plan No.139 effected the sub-division of the parcel of land known as Block 6, Section 120, Division of Kaleen in the Australian Capital Territory. Immediately prior to the registration of the units plan that parcel of land was the subject of a lease under the City Area Leases Ordinance but that lease determined upon such registration. The units Plan effected a sub-division of the parcel into eight units and common property. Separate retail businesses are 6. conducted in the eight units, the whole being known as the Kaleen Shopping Centre. The lease of Unit No.8 is held by Argos Pty. Limited, the second appellant, while Gena Pty. Limited, the first appellant, occupies the premises as a sub-lessee under a monthly tenancy. From the premises the latter company Operates a supermarket business under the name "Kaleen Shop-Rite". Amongst the goods in which the supermarket deals is meat which has been pre-packaged elsewhere and is bought on to the premises for the purposes of sale. There is nothing in the lease or sub-lease of the unit or in any contractual arrangement between the first or second appellant and the other unit holders which would preclude the first or second appellant from selling in the supermarket meat pre-packaged on the premises or, indeed, from operating a retail butchery section as part of the supermarket business. A retail butchery business is operated from Unit No.7 by Kaleen Market Butchery Pty. Limited under 5 sub-lease from Nick Karvounaris, Koula Karvounaris, Stan Kokoulis and Irene Kokoulis, the second, third, fourth and fifth respondents. The businesses operated from the remaining six units are a hairdresser, a dentist, a newsagency, a Chinese restaurant, a chemist and a take-away food shop. 7. The lease of the common property is held by the corporation known as The Proprietors - Units Plan No.139, the first respondent. That corporation was the applicant in the proceedings before the Supreme Court. The lease of each of the units is for a term which commenced on 22 June 1983 and will expire on 21 June 2027. The lessee of each lease has covenanted with the Commonwealth of Australia to use the unit "only for the purposes of retail trading personal services agencies trading offices cafes and restaurants". Argos Pty. Limited is also the lessee from the Commonwealth of Australia of a parcel of land known as Block 25, Section 120, Division of Kaleen in the Australian Capital Territory. That parcel of land has a_ boundary which, for part of its length, forms a common boundary with the land upon which Unit No.8 in Units Plan No.139 is situate. The lease of Block 25 is for aterm which commenced on 29 March 1984 and will terminate on 21 June 2076. The land may be used only "for the purpose of the handling and storage of goods excluding retail sales and the provision of staff amenities for the contiguous shop". The reference to "the contiguous shop" is an obvious reference to Unit No.8. On 29 September 1985 a meeting was held of the members of The Proprietors - Units Plan No.139, that is to say, of those who were the registered proprietors of the 8. leases of each of the units. The purpose of the meeting was to discuss a proposal under which the existing units plan would be cancelled, the parcels of land comprising Blocks 6 and 25, Section 120, Division of Kaleen would be amalgamated into a single parcel, a new lease would be granted under the City Area Leases Ordinance in respect of the composite parcel, existing leases being surrendered for the purpose, and a new units plan would be registered in respect of the enlarged parcel. Under the proposal the additional land would, in effect, be added to Unit No.8. Resolutions were passed at the meeting by a majority of the members present in person or by proxy favouring the carrying out of the proposal. The proprietors of Unit No.7, however, were opposed to the proposal and voted against the resolutions. Thereafter, application was made to the Supreme Court by The Proprietors - Units Plan No.139 for the cancellation of Units Plan WNo.139 subject to certain conditions and directions set out in the application. It is unnecessary to refer in detail to the conditions and directions proposed by the applicant but 1t is desirable at this stage to refer to the terms of the order made by the Supreme Court. That Court ordered that Units Plan No.139 he cancelled upon the following terms and conditions: "J. That until further order of the Court the order for cancellation is provisional only. 2. 9. That no final order for cancellation be made until - (a) the Minister has approved the proposals for the subdivision of that parcel of land being the aggregate of Block 6 and Block 25 Section 120 Division of Kaleen as set out in the draft units plan being annexure I to the affidavit of Barry Hayward sworn 6 March 1986 and filed herein, (b) the Minister has made an endorsement of his approval of the said proposed subdivision in accordance with Section 22(4) of the Unit Titles Ordinance 1970, and (c) the Registrar has signified that the documents referred to in Section 9(1) of the Real Property (Unit Titles) Ordinance 1930 Csicl relating to the said proposed subdivision have been sighted by him or on his behalf and that there is, subject to the cancellation of Units Plan No.139, no objection to the lodgment of those documents and the proposed units plan. That any lease of the premises or of a un1it now partly constituted by Unit No.8 of Units Plan No.139 include a provision that or to the effect that the premises or unit shall not be used for the purpose of a retail butchery other than the sale of meats pre-packed off the premises. That Argos Pty. Limited at its own expense complete the erection of the building on Block 25 and complete the alteration of the buiiding on Block 6 as shown in the plans being Annexure I and Annexure Jd to the said affidavit of Barry Hayward and Exhibit D herein. That the costs and expenses arising from the cancellation of Units Plan No.139 and the registration of a units plan in substitution therefor be borne by the proprietors of the units in Units Plan No.139 in proportion to the units entitlements shown on the substituted units plan, such costs to include the 10. party and party costs and reasonable disbursements incurred by the parties who appeared in the proceedings. 6. That the office copy of any final order for cancellation of Units Plan No.139 not be lodged for registration unless there be lodged at the same time the necessary documents for registration of the said substituted units plan. 7. '(That the registration of the said substituted plan be effected immediately after the registration of the final order for cancellation of Units Plan No.139. 8. That the parties be granted liberty to apply." Gena Pty. Limited and Argos Pty. Limited have appealed against so much of the order as purports to make the order of cancellation of Units Plan No.139 conditional upon there being a restriction on the sale of meat from the premises constituting the proposed enlarged Unit No.8. The proprietors of Unit No.7, being the second, third, fourth and fifth respondents, have, by leave of the Court, cross-appeaied on the following ground: "There is no power in the Unit Titles Ordinance 1970 to grant an order for cancellation of a units plan for the purposes of redeveloping the improvements the subject of the units plan with directions or conditions not adjusting the rights and duties of persons having registered estates in the leases of the units." It is now necessary to refer to certain further provisions of the Unit Titles Ordinance. Part VIII (comprising ss.97-105) 1s headed "Cancellation and Alteration of Units Plans". Sections 97, 98 and 99 should be set out in full. Section 97 provides: ll. "97. (1) A corporation, the administrator of a corporation or all or any of the members of a corporation may apply to the Court for an order for the cancellation of the units plan. (2) A copy of an application under this section shall be served on the Registrar. (3) On an application made under the last preceding sub-section, the Court may make a provisional order, or a final order, for the cancellation of the units plan or may make an order dismissing the application. (4) The Court shall not make an order for the cancellation of a units plan unless it is satisfied that, having regard to the rights and interests of all persons having estates or interests (whether registered or not) in the leases of the units, it is just and equitable to do so. (5) If the Court considers, on an application for an order under this section, that it is necessary to impose conditions, and give directions, to be complied with before the making of a final order for the cancellation of the units plan for the purpose of protecting the interests of the Commonwealth or for the purpose of adjusting, as between all persons having registered estates or interests in the leases of the units, the respective rights and duties of those persons so far as they may be affected by the cancellation of the units plan, the Court shall make a provisional order for the cancellation of the units plan specifying the conditions and directions to be complied with before the making of a final order. (6) The Court may, if satisfied, on an application made for the purpose, that' the conditions and directions specified in the provisional order have been complied with, make a final order for the cancellation of the units plan. (7) A final order may include directions to be complied with after the cancellation of the units plan and, in such a case, the order may be enforced as if it were a judgment of the Court obtained by a person for whose benefit the directions were given against the person required to comply with the directions." The references to Court of the Australian Capital Territory. noted that the reference in sub-s.(3) to "the last preceding sub-section" is obviously a reference to sub-s.(1). 98 provides: "98. 12. (1) On the registration of an order for the cancellation of a units plan - (a) (b) (c) (d) the corporation is dissolved; the lease of the common property and the lease of each of the units are determined; the land comprised in those leases forms one parcel of land; and the persons who were, immediately before the registration of the order, the proprietors of the units become possessed of an estate of leasehold in the parcel of land as tenants in common in undivided shares proportional to the unit entitlement of their respective units, or if a person was, immediatley before the registration of the order, the proprietor of all the units, that person becomes possessed of an estate of leasehold in the parcel of land, for the term commencing on the registration of the order and expiring on the date on which the lease that was, by section 25 of this Ordinance, determined on the registration of the units plan would have expired if it had not been s0 determined and subject to the provisions, covenants and conditions to which that lease was subject on the date immediately before the registration of the units plan, as if a lease of the parcel of land had ben granted to them or to him, as the case may be, by the Commonwealth under the City Area Leases Ordinance for that term and subject to those provisions, covenants and conditions. (2) For the purposes of paragraph (d) of the last preceding sub-section, if, immediately before the registration of the order, two or more persons were proprietors, as joint tenants or as "the Court" are references to the Supreme It may also be Section 13. tenants in common, of a unit, two or more units or all the units, then, the share in the estate, or the whole estate, as the case may be, vested by that paragraph in those persons is vested in them jointly if they were joint tenants or, if they were tenants in common, is vested in them as tenants in common in the same shares as they held in the unit or units. (4) The reference in paragraph {d) of sub-section (1) of this section to the provisions, covenants and conditions to which the lease of the parcel was subject shall be read as including a reference to a provision, covenant or condition of that lease as varied under section 11A of the City Area Leases Ordinance on an application made before the registration of the units plan or an application made in contemplation of the application for the order for the cancellation of the units plan. (5) The share in the estate, or the estate, as the case may be, of which a person becomes possessed under paragraph (d) of sub-section (1) of this section is subject to any mortgage and any easement referred to in section 13 of the Real Property (Unit Titles) Ordinance 1970." Section 99 provides: "99. (1) On the dissolution of a corporation under the last preceding section - (a) all rights, whether at law or in equity, vested in the corporation immediately before the dissolution are vested jointly in the persons who were, immediately before the dissolution, the members of the corporation; (b) subject to the next succeeding sub-section, the persons who, immediately before the dissolution, were the members of the corporation are jointly and severally liable for all the liabilities of the corporation subsisting immediately before the dissolution; and (c) for the purposes of the last two preceding paragraphs, a reference in an instrument to the corporation shall be read as a reference to those persons. 14. (2) On an application made to the Court before the order for the cancellation of the units plan is made, the Court may, if it considers, in the circumstances of the case, that it is just and equitable to do so, by order vary the operation of paragraph (a) or (b) of the last preceding sub-section in such manner as the Court thinks fit." It may be noted, in passing, that ss.100-102 make provision for the case where, after the registration of a units plan, a building or other improvement on the parcel of land the subject of the units plan is damaged or destroyed. In such a case, the Supreme Court may, by order, approve a scheme that makes provision for the reinstatement of the building or other improvement or, 2n a case where a unit has been damaged or destroyed, for the elimination of that unit and for any consequential alteration of the units plan. Apart from those provisions the Ordinance makes no provision for alterations being made to a units plan either by altering the boundaries of the parcel of land to which it relates or otherwise. The provisions made by ss.97-99 of the Unit Titles Ordinance are apt to deal with a situation where the cancellation of a units plan is an end in itself or is to he followed by a simple transaction such as the sale of the subject parcel of land. It is, perhaps, not so clear that the provisions are adequate where the cancellation of an existing units plan is but a means towards the implementation of a broader plan involving a new units plan providing for a re-arrangement inter se of the respective rights and obligations of the unit proprietors or embracing, 15. as here, an additional parcel of land. The legislature, as has already been noted, has made special provision in the case of damage to or destruction of a building or other improvement on the parcel of land the subject of a units plan but no special provision is made in any other case. But, it must be remembered that, in the case of the proposed cancellation of a units plan which is intended to be followed by the registration of a new units plan, the role of the Supreme Court is strictly limited. Its role is to determine whether or not an order for the cancellation of the existing units plan, provisional or final, should or should not be made and it may not make an order for cancellation unless it is satisfied that it is just and equitable to do so. It is given no general power to approve anew units plan or a scheme for such a plan, the absence of such a power in s.97 being in marked contrast to the power which the Court is expressly given by s.100 where a building or other improvement has been damaged or destroyed. But this does not mean that the power to order cancellation of a units plan is not available in a case such as this where a new units plan in substitution for the old is in contemplation. But, the Ordinance proceeds on the basis that, if anew units plan is to be proposed, approved and registered, the procedures prescribed in Part III of the Ordinance will be followed. In other words, the proposed new units plan will be dealt with in the same way as if it were an original scheme. That this is the position is illustrated by the reference in sub-s.11(1) of the Ordinance 16. to "a lease of a parcel of land referred to in paragraph (d) of sub-section (1) of section 98 of this Ordinance". If the Court is to reach a state of satisfaction that it is just and equitable to make an order for the cancellation of a units plan, it must do so "having regard to the rights and interests of all persons having estates or interests (whether registered or not) in the leases of the units". The Court must first identify all persons who have estates or interests in the leases of the units. The expression "estates or interests" in this context must, I think, be limited to those having a legal or equitable estate or interest ina relevant lease. Having identified such persons, the Court is required to have regard to "the rights and interests" of those persons, a composite expression which, in its setting, must, I think, be givena very wide meaning. The sub-section 1s dealing with a situation in which, unless the standard form of articles of association of the corporation managing the units plan has been amended by special resolution to provide to the contrary, a resolution for cancellation passed by a simple majority of the proprietors of the units present at the meeting will be sufficient to bring the matter before the Supreme Court. In these circumstances, sub-s.97(4) should not be read in any restricted sense unless there are compelling reasons to do so. I see no warrant for giving the words "rights and interests" a more limited meaning than those words are capable of bearing. 17. Attention was also focussed during argument on the provisions of sub~-s.97(5). It seemed to be assumed that that sub-section delimited the kinds of conditions and directions which the Supreme Court might decree when making an order for cancellation of a units plan under sub-s.97(3), so that the Court might impose no condition and give no direction other than a condition or direction for the purposes of protecting the interests of the Commonwealth or for the purpose of adjusting, as between all persons having registered estates or interests in the leases of the units, the respective rights and duties of those persons so far as they might be affected by the cancellation of the units plan. In my opinion, sub-s.97(5) is dealing with specific situations. Its purpose is clearly to limit the power of the Supreme Court in the situations with which the sub-section is concerned, ensuring that in any such situation only a provisional and not a final order is made until such time as the conditions and directions necessary to deal with the particular situation have been satisfied. The sub-section does not, in my opinion, have the effect of limiting any power which the Supreme Court otherwise has to impose conditions or give directions to be carried out before a final order for cancellation of a units plan is made. One source of such power is, I think, to be found in sub-s.97(4). I do not read that sub-section as requiring the Supreme Court, if it concludes on the material put before it that it would not be just and equitable to make an 18. order for cancellation, to dismiss the application. It seems to me that the sub-section is wide enough in its terms to permit the Court to mould its order in such a way that, by imposing conditions or giving directions to be carried out prior to the order for cancellation being made final, a situation can be achieved in which it can be satisfied that 1t is just and equitable to make the order for cancellation. If, of course, the conditions are not fulfilled, the order for cancellation will not come into effect. But, so to construe the sub-section would, so it seems to me, reflect a desirable element of flexibility ain the procedures and is more likely to accord with the legislative intention. The power to impose conditions is not, however, unlimited. Its limits are to be found in what is necessary in order that the making of the order for cancellation can be seen by the Court as being something which it is just and equitable to do having regard to the rights and interests of all persons having estates or interests in the leases of the units. I turn, then, to the question whether the Supreme Court had power to attach to the order for cancellation of the units plan the terms and conditions expressed in its order. It may be said, at once, that sub-s.97(5) provides no support for those conditions. That is because the conditions are not directed to either of the purposes mentioned in that sub-section. They are clearly not directed to protecting the interests of the Commonwealth and, as there is no relevant right or duty of the holders of units 7 and 8 which would be affected by the cancellation of 19. the units plan, the conditions cannot be supported as being directed to adjusting, as between the holders of those units, their respective rights or duties. The question then is whether the conditions are supportable by sub-s.97(4) construed in the manner to which I have already referred. Subject to what is said hereafter concerning the steps necessary for the approval and registration of a new units plan for the composite parcel of land comprising Blocks 6 and 25, Section 120, Iam of opinion that the condition numbered 2 was within power. It could hardly be considered just and equitable, in the circumstances of this case, to order cancellation of the units plan unless a new plan was thereupon to come into existence. Condition 2 was clearly directed to that situation. Similarly, conditions numbered 4, 5, 6 and 7 appear to satisfy the test of conditions necessary or desirable inorder that it may be seen to be just and equitable that the existing plan be cancelled. Condition numbered 3, however, stands ina different situation. Its purpose is to ensure that if a new units plan comes into existence the proprietor of the expanded unit No.8 will have restrictions placed upon its freedom to trade additional to those to which it is subject under the existing units plan. To concede power in the Supreme Court to impose such a condition would seem to involve the step that the Supreme Court may, by the imposition of conditions, in effect impose 20. its views of what any new units plan in respect of the composite parcel of land should contain. Whatever be the width of the power conferred by sub~s.97(4), it cannot, I think, be held to extend so far. In a case such as the present where the order for cancellation is sought as part of a scheme to substitute a new units plan for the existing one, no real problem would seem to arise in following out the procedures necessary under the Unit Titles Ordinance if all interested parties, including the Minister, are in full agreement as to what is to occur. But there is clearly a problem where, as in this case, the proprietors of one of the existing units are opposed to the proposed units plan or are not prepared to agree to that plan unless it is structured in such a way as to give them rights additional to those which they have under the existing plan. The problem is illuminated if one considers seriatim the steps which must be taken if the result desired by the majority of the members of the managing corporation is to be achieved, recognising, however, that, in practice, all the steps must be able to take place in sequence but almost instantaneously. The first step is for the existing units plan to be cancelled. Immediately upon registration of the final order for cancellation, the management corporation is dissolved, the lease of the common property and the lease of each of al. the eight units are determined and the land comprised in those leases (Block 6, Section 120) forms one parcel of land. The persons who had been the proprietors of the eight units immediately before the registration of the order for cancellation become possessed of an estate of leasehold in Block 6, Section 120 as tenants in common in undivided shares proportional to the unit entitlement of their respective units. The statutory lease so created is for a term expiring on the date on which the lease of Block 6 would have expired had it not been determined upon the registration of Units Plan No.139 and is subject to the same provisions, covenants and conditions as were contained in that lease. It may be noted that there is no evidence before the Court as to the provisions of that lease prescribing the purposes for which Block 6 might be used. The next step would be for that statutory lease and the lease held by Argos Pty. Limited over Block 25, Section 120 to be surrendered, for the two parcels of land to be amalgamated and for a new lease over the composite parcel to be granted under the City Area Leases Ordinance. Presumably, the lessees of that parcel would he identical with those who, on registration of the order for cancellation, became the lessees of Block 6, Argos Pty. Limited being one such. The lease of the composite parcel would, of course, contain a purpose clause but it is not clear what the terms of that clause would be, particularly , 22. as it seems clear that the purpose clause contained in the existing lease of Block 25 is different from that which was contained in the lease of Block 6 before that lease was determined and different from the purpose clause which appeared in the lease of each of the units in Unit Plan No.139. The lessees under the lease of the composite parcel would then apply to the Minister under sub~-s.11(1) of the Unit Titles Ordinance for approval of proposals for the sub-division of the composite parcel under the Ordinance. There is no provision whereby a majority of such lessees may bind a minority so that it would seem that any proposal for a units plan could only be put forward for approval if the lessees were unanimous. On the evidence as it presently stands, there is no unanimity amongst those who,on the hypothesis that the provisional order for cancellation is made final and registered and a lease for the composite site is granted, would be the lessees entitled to apply for approval of a new units plan. In the absence of such unanimity, it seems to me that it is impossible to be satisfied, having regard to the rights and interests of all the persons referred to in sub-s.97(4) of the Ordinance, that it is just and equitable to make an order for the cancellation of Units Plan No.139. I am, therefore, of opinion that the appeal should he dismissed, the cross-appeal should be allowed and the order 23. of the Supreme Court should be set aside and in lieu thereof it be ordered that the application to that Court be dismissed. I certify that this and the preceding 22 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Vick "Pow Associate Dated: 20 February 1987 Counsel for the appellants : Mr D.M.J. Bennett, Q.C. and Mr S.L. Walmsley Solicitors for the appellants : Gallens Counsel for the first respondent : Mr T.J. Higgins Solicitors for the first respondent: Peter Smyth, Burnett & Co. Counsel for the second, third, Mr B.J. Salmon, Q.C. fourth and fifth respondents and Mr F.d. Purnell Solicitors for the second, third, fourth and fifth respondents we Colquhoun Murphy Dates of hearing a 5, 6 November 1986