PERPETUAL TRUSTEE Co Ltd vy CROOKS MICHELL PEACOCK STEWART Pty Ltd SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and CLARKE JJA 9 July 1992, 16 October 1992 [1992] NSWCA 184 CONVEYANCING — FORM OF ORDERS. Kirby P, Priestley and Clarke JJA The court's reasons in this appeal were published on 19 August last. Directions were given for the bringing in or short minutes of orders and declarations. This was done and the court heard argument on them on 9 October last. The question in issue was whether the appeal should simply be dismissed or whether the substance of what both Brownie J and this court (by majority) thought was the appropriate interpretation of the disputed clause should be embodied in declarations taking a somewhat different form from those made by Brownie J, aiming at greater clarity. The court is of the view that the following orders and declarations appropriately reflect the views of the majority, and should therefore be made: 1. 2. Appeal dismissed, subject only to variation of the declarations made by Brownie J. In lieu of the declarations of Brownie J dated 12 March 1992, declare that on the true construction of CL4.5.8 of the sublease dated 28 February 1990 from the first defendant to the of levels | to 6, 66 Albert Road, Chatswood: (a) the references to the Lessee, Premises, Lease and Lessor in para(a), para(b), para(c), para(d) and para(f) of that clause are references to, and only to, the Lessee, Premises, Lease and Lessor as defined in CLI; (b) compliance with par(a), para(b), para(c), para(d) and para(f) of CL4.5.8 does not oblige any valuer or valuers determining the open market rental of the Premises as at the Market Review Date, when complying with para(e) of the clause, to: take account of matters of the kind stated in para(a) of the clause; have regard to matters of the kind stated in para(b) and para(f) of the clause; make any assumption of the kind stated in para(c) and para(d) of the clause; or make no reduction of the kind stated in para(d) of the clause; (c) the prohibition in those words of para(d) of that clause which say "and make no reduction on account of any concession otherwise required to secure a tenant or any period of rent abatement" applies to the determination of the open market rental of the Premises at the Market Review Date and says nothing about the manner in which the rental value of any comparable premises referred to in para(e) of that clause is to be arrived at. The appellant to pay the costs of the appeal of the first respondent and of the second respondent (the latter as a submitting party). 2 UNREPORTED JUDGMENTS Counsel for the Appellant: M TOBIAS QC/GK BURTON, Instructed by: MALLESONS STEPHEN JAQUES Counsel for the Ist Respondent: PM BISCOE QC, Instructed by: 5 MARSHALL MARKS KENNEDY Counsel for the 2nd Respondent: M BOWEN, SOLICITOR (SUBMITTING), Instructed by: DUFFIELD and DUFFIELD