Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

ROYAL BOTANIC GARDENS AND DOMAIN TRUST APPELLANT

AND

SOUTH SYDNEY CITY COUNCIL RESPONDENT

Royal Botanic Gardens and Domain Trust v South Sydney City Council

[2002] HCA 5

14 February 2002

S263/2000

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

J T Gleeson SC with A S Bell for the appellant (instructed by Minter Ellison)

D F Jackson QC with P J Brereton for the respondent (instructed by Pike Pike & Fenwick)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Royal Botanic Gardens and Domain Trust v South Sydney City Council

Contract – Construction of lease – Determination of rent by lessor – Lease provided that, in determining amount of rent payable, lessor "may have regard to" certain additional costs and expenses – Whether lessor limited to consideration of those factors – Use of surrounding circumstances to assist in interpretation of written contract in case of ambiguity – Both parties public bodies operating under particular legislative regimes – Whether statutory powers of lessor relevant to the meaning of the lease and the exercise of the determination of the amount of rent payable under the lease – Transaction of a non-commercial nature and designed to provide a public facility – Whether covenant of good faith and fair dealing implied in contractual dealings.

Precedent – Application of Codelfa Construction Pty Ltd v State Rail Authority of NSW – Status in other Australian courts of subsequent English authority.

Construction and interpretation – Contract – Deed of lease – Primary duty to construe language of the lease – Use of surrounding circumstances to assist in interpretation of written contract in case of ambiguity – Both parties public bodies operating under particular legislative regimes – Whether statutory powers of lessor relevant to the construction of the lease – Whether covenant of good faith and fair dealing implied in contractual dealings.