ALCUNE PTY LTD v TRI-ANTA PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, MEAGHER and POWELL JJA 3 March 1994, 10 August 1994 [1994] NSWCA 3 Building Control and Town Planning — subdivision of land — what constitutes — lease provides for lessee quitting and delivering up possession after notice from lessor — notice given — whether "subdivision" requiring council approval — Local Government Act 1919 s4 "subdivision", "subdivide". Landlord and Tenant — possession recovery ejectment — forfeiture by denial of lessor's title — in what circumstances — waiver by acceptance of rent. In 1982, PTC, then the owner of certain land at Double Bay, which land had a frontage to B Street, and abutted G Lane at the rear, granted to A a lease for 50 years from Ist March 1981 "subject to termination as provided in C136". That clause provided for the lessee, on being given 6 months prior notice in writing, to quit and to deliver up to the lessor a strip of land, about 6 feet in depth, and the width of the subject land, abutting on G Lane — that strip of land was, at the date of the grant of the lease, the subject of a road widening proposal which had been adopted by the local Council. After entry upon the land, A demolished an old building which had been erected on it and erected a new building which occupied the whole of the subject land except for the strip of land at the rear. In mid-1991, PTC transferred the subject land to T, after which time a series if disputes - mainly as to financial matters - arose between T and A. In late 1992, A, having negotiated a sub-lease to B, which wished to use the premises for the conduct of a restaurant, delivered to M, who was engaged by B to fit out the restaurant, a letter, addressed to the Town Clerk which read, in part "As proprietors of the above property we hereby authorise (M) to lodge building and development applications in respect of the above property...". In March 1993, T delivered to A a notice requiring it to deliver to T in September 1993 the strip of land at the rear of the subject property - and this, despite the fact that, by then, the Council had apparently abandoned the earlier road-widening proposal. Thereafter, A commenced proceedings in the Equity Division seeking (inter alia) a Declaration that it was not obliged to comply with the notice to quit, the basis for its challenge being that compliance with the notice to quit, if not approved by the local Council, would amount to an unlawful subdivision of the land. On the trial of a preliminary question of law, Brownie J, in May 1993 answered that question contrary to A's contention. Later, having, meantime, become aware of the letter addressed to the Town Clerk, T, which had earlier filed a Cross-Claim seeking possession of the subject premises on the grounds of alleged breaches of covenant on the part of A, sought leave, on the hearing of the balance of the Summons and of the Cross-Claim, to amend so as to rely, as well, on the terms of that letter, which, so it claimed, constituted a denial of its (T's) title, and thus, gave it a right to re-enter. Before doing so, however, T had demanded, and received, an instalment of rent due under the lease, rent being payable monthly in advance. On the hearing, Windeyer J: - 2 UNREPORTED JUDGMENTS (1) adopted the answer given by Brownie J to the preliminary question of law, and declared that the notice to quit was valid and binding on A; (2) held, first, that the letter to the Council did not constitute a denial of T's title; and, second, that even if it had, T, by demanding and receiving, rent, had waived any right to re-enter which it might otherwise have had; and accordingly dismissed the Cross-Claim. A appealed and T filed a Cross-Appeal HELD: (1) Compliance with the notice to quit would not involve a "subdivision" within the meaning of the Local Government Act 1919. (2) the letter to the Council did not constitute a clear and unambiguous denial of T's title, and, thus, did not work a forfeiture. (3) even if it had, T's conduct in demanding, and receiving, rent, would have constituted a waiver of its right to re-enter. Mahoney AP I agree with Powell JA that the appeal and the cross-appeal should be dismissed. The plaintiff ("Alcune") holds lands as lessee of Tri-Anta Pty Ltd ("Tri-Anta"). Tri-Anta has, as it is entitled to do, given a notice to Alcune to quit part of the land. The issue in this regard is whether Alcune can refuse to comply with the notice to quit because (as it is alleged) to do so would constitute a subdivision within s4 of the Local Government Act 1919 and so contravene PtXI of that Act. The term "subdivision" in that Act includes relevantly "dividing land into parts, whether the dividing is... (b) by any agreement dealing or instrument inter vivos (other than a lease for a period that... does not exceed 5 years) rendering different parts thereof immediately available for separate occupation or disposition;...". The terms of the definition of "subdivision" and their operation are, in my respectful view, difficult to understand. In Registrar General v Lee (1990) 19 NSWLR 240 at 248 et seq, I referred to some of the meanings which may be attributed to the term according to its ordinary meaning and to the difficulties in giving effect to the statutory extension of it. It is difficult to give to the relevant portion of the definition any meaning which will not produce curious results. Brownie J held that there was no subdivision within this provision because the giving of the notice to quit did not make the portion of the leased land in question "immediately" available to Tri-Anta because the relevant instrument, the notice to quit, did not require possession to be given until the expiry of the term there specified. In the present case, Mr Motbey, for Alcune, has submitted that, if Alcune gives up possession of portion of the land the subject of the notice to quit, the result will be to "render" that portion of the leased land "immediately available for separate occupation" by Tri-Anta within the meaning of para(b) of the definition. His submission suggested that, if part of a lease or occupancy arrangement could be terminated, by notice to quit or for default or otherwise, the resultant availability of that part of the lease "for separate occupation" would constitute a subdivision. The argument rests, I think, essentially upon the terms "rendering" and "for separate occupation or disposition". It suggests, I think, that - I put the matter broadly - there is a subdivision where there is occupation or disposition by at least two persons in circumstances where there had not formally been occupation or disposition available to more than one person. It would, I believe, be incongruous if (as may have been the case in the present instance) the grant of a lease or licence did not require the consent of council but the return of the land, or part of the land, to the lessor or licensor did require that URJ ALCUNE PTY LTD v TRI-ANTA PTY LTD (Powell JA) 3 consent. Thus, assume the lease was granted properly to the lessee without council consent. The return to the lessor of part of the land would cause part of the land to be immediately available for occupation or disposition by him. The lease of the part still held would not require council consent. That, in my opinion, was not the intended operation of the Act. The draftsman of the paragraph clearly saw the possibility of the evasion (if it be such) of the proscription of unapproved subdivision by the grant of, eg, a long term lease. Para(b) was intended, at least, to prevent such an evasion. It was, I think, intended to prevent, eg, a long lease of part of the land to A and a long lease of another part to B. But I cannot think that it was intended that the surrender, termination for default or termination according to the term of one of the leases should constitute a subdivision requiring council consent. To terminate A's lease in this way would render that part "immediately available for separate occupation or disposition" by the lessor. It would be curious if such a termination of a lease or licence was intended to require council consent when the original grant of the lease did not. I am conscious that there are dangers in construing statutes by reference merely to examples. But it is, I think, proper to test the intention of the legislation by reference to examples. To do this is a legitimate judicial function in aid of the statutory purpose. Accordingly, I agree with the orders proposed by Powell JA in this regard. I agree also with his Honour's conclusions in relation to the cross-claim and the orders which he there proposes. Meagher JA I agree with Powell JA. Powell JA The proceedings before the Court are said to involve an Appeal from a Declaration made by Windeyer J on 5th October 1993 insofar as that Declaration is founded upon a Judgment given by Brownie J on, 31st May 1 993 when determining a preliminary question of law, and a Cross-Appeal in respect of so much of the Judgment delivered by Windeyer J on Sth October 1993 and the Declaration based thereon as determined that the Defendant Cross-Appellant ("Tri-Anta") was not entitled to forfeit a lease ("the subject lease") of a property at Bay Street, Double Bay ("the subject property") of which property Tri-Anta had become the registered proprietor, and of which property, the Plaintiff Cross-Defendant ("Alcune") was then the lessee tenant by reason of what was alleged to be the Alcune's denial of the Tri-Anta's title or its ("Alcune's) disclaimer of its estate lessee in the subject property. As is apparent from that short statement, a variety of other questions arose for determination, and were determined, in the proceedings at first instance but they have not been made the subject of either the Appeal or Cross-Appeal. In order that one might more readily understand the nature of the issues which - for present purposes - were debated before Brownie J and Windeyer J, and which have been debated on this Appeal and Cross-Appeal, it is necessary to go back some 15 or so years, to the year 1979, at which time, so it would seem, the Public Transport Commission of New South Wales ('the Commission") owned the subject property, which property, in addition to having a frontage to Bay Street, abutted Gumtree Lane ("the Lane") on its rear boundary. At that time, there was erected upon the subject property - which, as it would seem was held under Old System Title - was a building which appears as if it may have done duty as a Bus Depot and Rest Room for drivers and conductors of the Commission's buses which then terminated in Double Bay. 4 UNREPORTED JUDGMENTS It would seem that, at some time in or prior to the year 1974, the Council of the Municipality of Woollahra (as it was then known) ("the Council") had, at least in principle, adopted a proposal which involved the widening of (inter alia) the Lane, which proposal, if given effect to, would have involved the acquisition from the owners of each of the lots which abutted the Lane on its western side - those lots included the subject property - of a strip of land 6 feet wide - a copy of the plan showing the proposed road widening of (inter alia) the Lane seems to have been provided by the Council to the Commission by no later than September 1974. It would further seem that, by no later than December 1979, the Commission, having apparently no further use for the building erected upon the subject property, had invited public tenders for a long term lease of the land - the tender documents included a copy of the plan - to which it will be necessary later to refer in greater dealt - which became annexure "A" to the subject lease. Following upon the close of such invitation, had entered into negotiations with Messrs R McDonald, J McDonald and L Abrahams, (the former 2 of whom were to become "the Guarantors" for the purposes of the lease) for the grant of a 50 year lease of the land to the Alcune. At the conclusion of those negotiations, the Secretary of the Commission wrote to the Under Secretary of the Department of Transport ("the Department") outlining the particulars of the proposed lease and requesting that the proposal be submitted to the Executive Council with a view to obtaining its approval to the grant of the proposed lease. Although the terms of the lease which was finally entered into are not entirely apposite, it seems fairly clear that what was contemplated by the Commission and Alcune was that, in the event of the lease being granted, the existing building would be demolished and that the Alcune would erect upon the subject land a new building which would include, at the least, provision therein for the conduct of a restaurant. In an Executive Council Minute dated 22nd May 1980, the then Minister for Transport ("The Minister") recommended to His Excellency the Governor and the Executive Council that approval be given in pursuance of the provisions of the Transport Act 1930 for the Commission to lease the property to Alcune for a term of 50 years "but subject to six (6) months notice of termination as regard the area coloured blue (on the annexed plan marked 'A')". The Minister's proposal was approved by the Governor on the advice of the Executive Council on 28th May 1980, a copy of the Executive Council Minute bearing the signatures of the Governor and the Clerk of the Council being then forwarded to the Commission which received it on 30th May 1980. A reference to "the annexed plan marked 'A'" ("the plan") referred to in the Executive Council Minute, which plan, as I have previously indicated, was incorporated in the form of lease which was subsequently executed by the State Rail Authority of New South Wales ("the Authority") - which was, relevantly the successor to the Commission - and Alcune, makes it clear that "the area coloured blue" on that plan was the strip of land at the rear of the subject property, abutting on the Lane, which was the subject of the Council's road widening proposal. Lest there be any doubt that this was so, it is sufficient to indicate that, when, in August 1980, the Town Clerk advised Alcune of the Council's consent to its Development Application for the establishment of a restaurant at 21 Bay Street, URJ ALCUNE PTY LTD v TRI-ANTA PTY LTD (Powell JA) 5 Double Bay - a copy of which notification was, at the same time, forwarded to the Commission - the conditions attached by the Council to its consent included the following: - "14. The rear of the building being set back 2.13 metres from The Lane for future dedication to Council for lane widening." (On the plan the "area coloured blue" is depicted as having a depth of 1830 millimetres, which is, of course, 6 feet in Imperial measurement - 2.13 metres is, in Imperial terms, 7 feet.) The evidence which is before the Court does not disclose when the building which now stands upon the land was erected, but, having regard to the fact that, in the lease which was finally executed by the Authority and Alcune in 1982, the term is defined as being "fifty (50) years commencing on the first day of March One thousand nine hundred and eighty-one subject to termination by the lessor as provided in cl36,...", the probability is that possession of the land was given at the beginning of March 1981 to enable Alcune to demolish the existing structure on the land and thereafter to erect the new building which it had proposed. Although, again, the evidence is not entirely clear the facts, that the uses to which, for the purposes of the lease, the subject property might be put were limited to "use as a bistro or for offices", and that Mr Abrahams, who had earlier been intended to be a Guarantor of Alcune's covenants under the proposed lease, did not join in the lease would suggest, first, that, at some time, an Amended Development Application was lodged with the Council and approved by it and, second, that Mr Abrahams had, meantime, disposed of his share in Alcune. That this was in all probability so is suggested by the fact that it would appear that, that although a two storey building was erected on the land - no part of the building standing on - although several steps from the rear of the building did so - "the area coloured blue" which appears to have been used solely as a place to stand garbage bins - that building, at least until late 1992, did not contain a restaurant, but, rather, was used for commercial and retail purposes. The formal lease from the Authority to Alcune seems to have been executed on 18th February 1982. For present purposes, the only term in the lease which needs to be noted is cl36 which was in the following terms: - "36. The lessor may by six (6) months notice in writing given on expiring (sic) at any time require the lessee to quit and deliver up possession of that part of the demised premises shown coloured blue on the attached plan and upon the expiration of the said notice the tenancy hereby created of that part of the demised premises shall cease and determine but without prejudice to the rights and remedies of the lessor in respect of any breach of the covenants conditions and restrictions on the part of the lessee herein contained or implied but such action shall not give rise to any claim for compensation whatsoever on the part of the lessee." Although the evidence is singularly sparse, it would seem that, in 1991, or thereabouts, the Authority entered into a contract to sell the subject property to Tri-Anta, the completion of that sale being effected in about the middle of 1991. Whatever may have been the relations between the Authority and Alcune, it was soon to become apparent that the relations between Alcune and Tri-Anta were to be singularly strained, the cause of that situation, as best as I can judge, it being a variety of demands - namely of a financial nature, made by Tri-Anta 6 UNREPORTED JUDGMENTS upon Alcune which demands were roundly rebuffed by Alcune. Although it has no particular bearing on the questions arising on this Appeal and Cross-Appeal, the attitude taken by Alcune to Tri-anta's demands seems, for the most part, to have been justified in law. The disputes between Alcune and Tri-Anta continued well into 1992. It would seem that, while the disputes were still raging, Alcune's then sub-tenant of the property - which, by then, had become the subject of a qualified folio in the Register - Folio Identifier 1/196796 - vacated the property. Thereafter, Alcune sought to obtain a fresh sub-lessee, and, in due course, negotiated a sub-lease to Botticelli Italian Restaurant Pty Ltd ("Botticelli"). Although, yet again, the evidence is less than clear, it seems that, although, by that time, the formal sub-lease from Alcune to Botticelli had not been executed - indeed, at the time, Tri-Anta's approval to the proposed sub-lease had not been sought or obtained - Botticelli had retained the services of one Frank Molo ("Mr Moio") for the purpose of refurbishing the building and fitting it out for use as a restaurant. That this was so is indicated by the fact that, on 22nd September 1992, Alcune, under its common seal, executed a document addressed to the Town Clerk of the Council which document, so far as is relevant was as follows: - "RE: 21 BAY STREET, DOUBLE BAY As proprietors of the above property, we hereby authorise Frank Moio to lodge development and building applications in respect of the above property for use as a restaurant." Thereafter, on Ist October 1992, Mr Moio executed a form of Development Application, later given an identifying number DA 92/212, the nature of the development being described as "change of use existing retail to new restaurant", the estimated costs of the works being said to be $150,000.00. At the foot of the second page of the Development Application, where provision is made for signature by the applicant and also by the owner of the land or alternatively for the owner's written consent to accompany the application, Mr Moio wrote "see attached letter", the "attached letter", one assumes, being the document executed by Alcune on 22nd September 1991. On 19th October 1991, MrMoio executed yet a further Development Application, the nature of the development in that further Development Application being described as "alterations and fit-out for new restaurant including new shop front", the estimated costs of the works being said to be $85,000.00. A formal Building Application and, as well, an Advertising Sign Application appear later to have been lodged by Mr Moio, but it is impossible, with any degree of precision, to determine from the evidence when it was that those Applications were lodged, or approved. It might be noted that on the Advertising Sign Application, the name of the owner of the premises was, on this occasion, said to be Tri-Anta. Despite the fact that, at the time, the Development Application had not been approved, nor the formal consent of Tri-Anta to the proposed sub-lease to Botticelli sought, it would appear that, by no later than 23rd October 1992, Mr Moio had commenced work in relation to the proposed refurbishment of the building - this may be due to the fact that the term of the sub-lease which had been negotiated was for a period of 3 years commencing URJ ALCUNE PTY LTD v TRI-ANTA PTY LTD (Powell JA) 7 14th October 1992. Be that as it may, on 23rd October 1992, Tri-Anta's solicitors protested at the fact that work was being carried out - and advised Alcune's solicitors - who indicated that they were unaware of the works - that, unless approval to both the proposed sub-lease and the proposed alternations to the property were promptly sought, an application would be made for an injunction to restrain the carrying out of any further work on the property. A copy of the proposed sub-lease was forwarded to Tri-Anta's solicitors on 23rd October 1992, and, on 29th October 1992, Alcune's solicitors forwarded to Tri-Anta's solicitors a copy of the plans relating to the work proposed to be carried out at the premises As best as I can judge it, it would seem that one, or both, of the Development Applications had been approved by the Council by this time. It is likely that the Building Application was lodged shortly after the approval of-the Development Application for, on 9th November 1992 the Town Clerk wrote to Tri-Anta a letter which, so far is relevant for present purposes, was in the following terms: - "RE PREMISES - 21 BAY STREET, DOUBLE BAY I acknowledge receipt of your building application for the above mentioned premises and advise it is being processed within the Council's Building and Health Department. The application will be examined for compliance with the building regulations and the Council's codes and policies, and a site inspection made to determine affectation of adjoining premises. Adjoining owners will be notified of the proposal and given the opportunity to peruse the plans held at the Council Chambers and make a submission should they so wish. The time taken to process the application varies with the type of application, submissions from adjoining property owners and the level of decision making, with the present average turn around time being in the vicinity of twenty-eight (29) calendar days Meantime, the sniping by Tri-Anta appears to have continued unabated, with various demands - relating to financial matters - continuing - but unsuccessfully - to be made. In the light of what had previously occurred and of what was later to occur, it is difficult to avoid the conclusion that those who control Tri-Anta determined to use any device available to them in order to rid themselves of their turbulent tenant. The next step which appears to have been taken was that, on 2nd March 1993, Tri-Anta caused to be served upon Alcune and its solicitors a Notice to Quit which, so far as is relevant, was in the following terms: - "NOTICE TO QUIT RECITALS A. Tri-Anta Pty Ltd ('the Lessor') is the registered proprietor of the property known as 21 Bay Street, Double Bay ('the Property') having acquired the property on or about September 1991 from The State Rail Authority of New South Wales. B. The Lessor by virtue of becoming the registered proprietor of the Property became the Lessor of the lease dated 18th February, 1982 ('the Lease') to Alcune Pty.('the Lessee'). 8 UNREPORTED JUDGMENTS C. The Lessor is entitled in accordance with C136 of the lease to give the Lessee six months notice in writing expiring at any time to require the Lessee to quit and deliver up possession of that part of the Property coloured blue on the plan attached to the Lease (a copy of which is attached hereto) and upon expiration of the said notice, the tenancy of that part of the Property shall cease and determine. OPERATIVE PART 1. The lessor hereby gives notice that it requires the Lessee on or before Monday 6th September, 1993 to quit and deliver up possession of that part of the Property highlighted in yellow on the plan attached hereto and on Monday 6th September 1993 the tenancy of this part of the Property shall cease and determine without prejudice to the rights and remedies of the Lessor in respect of any breach of the covenants, conditions and restrictions on the part of the Lessee contained in the lease." The service of that Notice to Quit provoking a letter of the 11th March 1993 from Alcune's solicitors to Tri-Anta's solicitors, which letter, omitting formal parts, is in the following terms: - "RE: ALCUNE PTY LTD AND TRI-ANTA PTY LTD 21 BAY STREET, DOUBLE BAY We refer to your letter dated 4th March, 1993 and the Notice to Quit therein contained. The land sold to your client in September 1991 comprised, so we are instructed, one undivided parcel of old system title land containing 205.4 square metres. We assume that your client has obtained development consent from Woollahra Municipal Council to sub-divide the land in the manner purported to be affected by compliance with your client's Notice to Quit. Would you please supply, by facsimile a complete copy of the development consent including all conditions thereof. In the absence of such consent, as you would obviously be aware, your client's Notice to Quit would be void and any purported compliance with it a criminal offence. Unless by Spm today we receive by facsimile transmission a copy of the development consent, or your acknowledgment that the purported Notice to Quit is withdrawn, we shall commence Supreme Court proceedings without further notice to you." That letter, in its turn, provoked a reply from Tri-Anta's solicitors, which letter was in the following terms: - "Re: Tri-Anta Pty Ltd and Alcune Pty Ltd 21 Bay Street, Double Bay. We refer to your facsimile letter of 11th March, 1993. Our client has exercised a right contained in the lease. We note that this was clearly contemplated by your client as the exact same provisions were included in the proposed sub lease to Botticelli together with various provisions to cover the situation if the rights should be exercised. There is no development consent nor any obligation on our client to obtain a development consent. The lack of development consent does not have the effect of making our clients notice to quit void nor, as you assert have the effect of making any purported compliance with the notice a criminal offence. URJ ALCUNE PTY LTD v TRI-ANTA PTY LTD (Powell JA) 9 The notice to quit remains in effect and our client intends to exercise its rights under such notice at the appropriate time." On 17th March 1993, there was filed on behalf of Alcune a Summons in which, relevantly, there was sought the following relief: - "1. A declaration that (the Plaintiff) is not obliged in law to comply with the Defendant's purported Notice to Quit (dated 2 March, 1993) the rear portion of the premises known as 21 Bay Street, Double Bay." It is convenient, here, to record that the bases upon which Alcune sought to found its title to the Declaration claimed by it were the provisions of the Local Government Act 1919 ("LGA") - in particular s323, 327 - and of the Environmental Planing & Assessment Act 1979 ("EPA") - and, in particular, s76. So far as is relevant to the present proceedings, the provisions of those Acts are as follows: - 1. Local Government Act "In this Act, unless inconsistent with the context or subject matter: 'Subdivision' 'Subdivide' and similar expressions mean and refer to dividing land into parts whether the dividing is: (a) by sale conveyance transfer or partition; or (b) by any agreement dealing or instrument inter vivos (other than a lease for a period that, including any period for which the lease could be renewed by the exercise of an option, does not exceed 5 years) rendering different parts thereof immediately available for separate occupation or disposition; or (c) by procuring the creation of a folio of the Register kept under the Real Property Act 1900 in respect of a part of the land. 323(1) A public road shall not be opened and land shall not be subdivided except in accordance with the provisions of this Act. 327... (2) In a case where a subdivision does not provide for the opening of a public road, land shall not be subdivided until: - (a) an application in respect thereof accompanied by plans has been approved under this Act; and (b) the Town or Shire Clerk has certified that (i) the requirements of this Act (other than the requirement for the registration of plans) have been complied with; (c) a plan of subdivision (such plan bearing a statement containing such particulars as may be necessary to identify the title to the land comprised in such plan, and the aforesaid certificates) has been registered in the office of the Registrar General. (3) Nothing in this section shall be deemed to render any agreement to sell, let, or otherwise dispose of any land illegal or void by reason merely that it is entered into before an application in respect of the subdivision has been approved by the council, but the agreement shall be deemed to be made subject to such approval being obtained. 2. Environmental Planning & Assessment Act 10 UNREPORTED JUDGMENTS "4(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: 'Development' in relation to land means - (a) the erection of a building on that land; (b) the carrying out of a work in on over or under that land; (c) the use of that land or of a building or work on that land; and (d) the subdivision of that land but does not include any development of a class or description prescribed by the Regulations for the purposes of this definition; (d) the subdivision of land is a reference to - (@) (without limiting the following provisions of this paragraph) the subdivision of land within the meaning of the Local Government Act 1919; (ii) any other division of land into two or more parts which, after the division, would be obviously adapted for separate occupation, use or disposition; or (iii) the redivision of land, by such a subdivision or by any other division, into different parts which, after the redivision, would be obviously adapted for separate occupation use or disposition. 76(1) Subject to this Act, where an environmental planning instrument provides that development specified therein may be carried out without the necessity for consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies except in accordance with the provisions of that instrument. (2) Subject to this Act where an environmental planning instrument provides that development specified therein may not be carried out except with a consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies unless: - (a) that consent has been obtained and is in force under this Act; and (b) the development is carried out in accordance with the provisions of any condition subject to which that consent was granted and of that instrument. " Although it would seem that, on the hearing before Brownie J, both parties - as they did on the hearing of this Appeal and Cross-Appeal - directed submissions to the relevance of the provisions of s4 and s76 EPA to the claim made by Alcune, I regret to say, even now, I do not understand the significance of those submissions, if only because there is no evidence that, at any relevant time, any environmental planing instrument - as opposed to the Local Government Act 1919 - precluded - whether with or without consent on the part of the Council - subdivision of land within the Municipality of Woollahra. Before the Summons had come on for hearing, however, Tri-Anta had retaliated on 5th May 1993 by serving upon Alcune a Notice - dated 5th May 1993 - pursuant to the provisions of s129 of the Conveyancing Act 1919 ("CA"). Although it seems that Tri-Anta no longer seeks to rely upon, Alcune's alleged failure to comply with that Notice as a basis upon which it might terminate the lease and re-enter the premises, it would seem that this was not so, in August 1993, when Tri-Anta filed a Cross-Claim in which it sought a Declaration that it was entitled to possession, nor in, September 1993 when the balance of the URJ ALCUNE PTY LTD v TRI-ANTA PTY LTD (Powell JA) 11 proceedings and the Cross-Claim were dealt with by Windeyer J. For this reason, while not setting out in detail the various breaches of the lease with Tri-Anta alleged, it is as well to record that a number of them related to the financial matters which had been the subject of dispute between Alcune and Tri-Anta over the preceding 18 months, or so, while others of them related to matters said to arise out of the grant of the sub-lease to Botticelli, Botticelli's entry into possession of the premises, and the work carried out at its behest. Alcune's Summons appears to have been listed before Brownie J on 31st May 1993. Although the Transcript - which is very brief - does not record it to have been so, the first of the Orders made by His Honour when he delivered Judgment on 31st May 1993 would suggest that, on that day, or before, he had been asked by the parties to determine a preliminary question of law in or to the following effect: - "Ts the Defendant, under C136 of the lease (after compliance with the notice of procedure therein prescribed) entitled to repossess the rear portion of the premises (referred to in the Plaintiffs Summons) (whilst leaving the Plaintiff in possession of the balance) without first obtaining subdivision approval in accordance with the Local Government Act and the Environmental Planning & Assessment Act?" The evidence tendered on the hearing of that preliminary question was exceedingly brief, for the most part being Ltd to the tender of what were accepted as being, or were alleged to be, documents relevant to the determination of that issue. At the conclusion of the hearing, His Honour reserved his Judgment, that Judgment as I have earlier noted, being delivered on 31st May 1993. Since it is said that the terms of His Honour's Judgment would indicate that His Honour misapprehended the submissions of Mr SJ Motbey who then appeared - as he has since continued to do - for Alcune, 18 it is proper, here, to record that it is said that Mr Motbey's submission was, not that the Notice to Quit of itself effected a subdivision, but that C136 of the lease gave to the landlord a contractual power, exercisable on notice to the tenant, to sever the occupation of the land between the landlord and the tenant, it following - or so the submission seems to run - that the landlord would, by contract, be effecting a subdivision, since, after the expiration, of the period of the Notice, the occupation of the land would be divided for the remainder of the term of the lease. In his Judgment - which is very short - Brownie J, after setting out the facts briefly, and referring in an equally brief fashion to the provisions of s323 and 8327 of the Local Government Act and s42D of the Environmental Planning & Assessment Act, continued: - "The question for decision is whether the service of the notice constitutes the subdivision of the leased land within the meaning of either Act. In Registrar General v Lee (1990) 19 NSWLR 240 at 248 Mahoney JA questioned whether the fragment of the definition of 'subdivision' in the Local Government Act which I have quoted means that there can be a subdivision effected only by the matters listed in para(1), para(b) and para(c), or whether the definition is inclusive of those matters. If the definition is taken to be exhaustive, then, in my view, the plaintiff fails It cannot be said that, within the meaning of para(a), the service of the notice divided the land into parts in one of the manners listed; para(c) is inapplicable; and para(b) does not apply because the service of the notice in March 1993 does 12 UNREPORTED JUDGMENTS not render the different parts of the land 'immediately available for separate occupation or disposition', if only because it did not call for the delivery up of possession until September 1993. The defendant submits that para(b) is also inapplicable for another reason: the service of the notice is not an 'agreement dealing or instrument inter vivos' within the meaning of the Act, and I consider that this is correct. Nor do I think that it helps the plaintiff if the definition is taken to be inclusory, rather than exhaustive, for as a matter of ordinary English, it can hardly be said that the service of the notice amounts to the dividing of the land into parts. That takes me to S4(2)(d)(ii) of the EPA Act. The defendant contends that, for the purpose of this definition, the land had already been subdivided, by the execution of the lease, or, as I think is the preferable position, by the construction of the building after the execution of the lease. By then, the land had been divided into two parts, being the part built upon, and the blue land; and it had been divided both in the sense that the plan annexed to the lease divided the land into separate parts, having different characteristics, one part being the subject of a (relevantly) irrevocable lease, whilst the other part was the subject of a lease terminable upon six months' notice, and in the sense that one part had been built upon, whilst the other part had not. I prefer this view to the view urged for the plaintiff, that the service of the notice to quit in six months' time constituted a division of the land, in that it could then be said, although it could not previously have been said, that the land was obviously adapted for separate occupation, use or disposition." Having done so, and having formally ordered - semble nunc pro tune - that there be a separate trial of the question to which I have earlier referred Brownie J then concluded: - "2. Declare that the answer to this question is 'Yes'. 3. Order the Plaintiff to pay the Defendant's costs in respect of the determination of this issue." (it may be a question of doubt whether it was appropriate for His Honour to make the "declaration" recorded in O2, since it is not customary - even it be legally open - for the Court to make declarations at an interlocutory stage of proceedings; rather, the appropriate course to adopt, in such cases (see SCR Pt31 r5), is to record the decision of the Court on the separate question which has been tried. In the event, however, the matter is of no great moment, since, even if - which I think is the correct view - the "declaration" was thus interlocutory in nature, and, at that stage of the proceedings, subject to appeal only by leave, as the proceedings have now finally been determined, it is open to Alcune to challenge His Honour's "declaration", as of right (see Smith v Tabain!; National Employees Mutual General Insurance Association Ltd v Manufacturers' Mutual Insurance Ltd?) The proceedings appear to have been listed, for some purpose, before Windeyer J on 11th August 1993, for, on that day, Tri-Anta filed in Court the Cross-Claim to which I have earlier referred, by which Cross-Claim it, relevantly sought: - "1. A declaration that the Notice to Quit issued by the Cross-Claimant dated 2 March 1993 is valid and binding upon the Cross-Defendant 1. (1987) 10 NSWLR 562 2. (1988) 17 NSWLR 223 URJ ALCUNE PTY LTD v TRI-ANTA PTY LTD (Powell JA) 13 4. A declaration that the Cross-Claimant is entitled to possession of the premises. As best as I can judge it, the Affidavits which were filed in Court on 1th August 1993 in support of the Cross-Claim were directed entirely to the alleged breaches of the covenants in the lease referred to in the Notice which had been served pursuant to the provisions of s129 CA on Sth May 1993, and to events, and correspondence, related to those alleged breaches which had occurred, or passed between the parties and their solicitors, meantime. Although it would appear that the Council had produced, under subpoena returnable on 4th August 1993, its file or files relating to the various Development Applications made in 1992, it is said (Appeal Book p258) that those documents were not inspected until 20th August 1993, or a short time earlier. Whatever be the correct date upon which Tri-Anta's solicitors inspected the documents produced by the Council and, in particular, the letter dated 22nd September 1992, it appears to be accepted that it was prior to 1st September 1993, on which date Tri-Anta accepted the rent then due and payable - it being noted, in this respect, that rent was payable monthly in advance. Although no application - whether before, or at, the hearing before Windeyer J - was made on behalf of Tri-Anta for leave to amend its Cross-Claim so as to raise the claim - which it later made - that the letter of 22nd September 1992 involved a denial of Tri-Anta's title and, thus, gave Tri-Anta a right to re-enter, it is said that notice of the claim had been given prior to the hearing (Appeal Book p 258) although the evidence does not disclose when it was that such notice was given. The transcript record of what occurred on the hearing before Windeyer J is, to say the least, sparse and, in this respect, not very illuminating. As best as one can judge it, Mr Motbey opened Alcune's case to His Honour and then read such of the Affidavits as had been filed on behalf of Alcune and went to the balance of the issues sought to be raised in the Plaintiffs Summons Although it is not clear that this was so, the transcript (Appeal Book p44) suggests that, when that had been done, Mr IM Jackman who then appeared - as he has since done, for Tri-Anta, opened Tri-Anta's case on the Cross-Claim. It further appears that, in the course of his doing so, Mr Jackman referred to the Notice which had been served pursuant to the provisions of s129 CA and indicated that a number of the breaches alleged in that Notice were no longer pressed. Mr Jackman seems then to have indicated that Tri-Anta sought, in addition, to rely upon Alcune's alleged denial of Tri-Anta's title for the transcript then records the following: - "MOTBEY: I don't know whether they should be permitted to raise denial of title. There were directions of (sic) the filing of evidence. Those times have obviously expired. Whether my friend can reply (sic) upon new evidence does involve your Honour's discretion which ought to be considered in the light of prejudice. The little time I have had dealing with the disclaimer point or denial of title, it does appear that the landlord would have to demonstrate a deliberate act and the state of mind of my client is a factual matter which I wouldn't wish to have to commit myself to by way of evidence on such short notice without having a more thorough understanding of the matter. That's all I can say in relation to the prejudice. The point does not trouble me very much. 14 UNREPORTED JUDGMENTS HIS HONOUR: I think we set this down for two days You do not have to meet that until Mr Jackman has produced something. You would not have to meet it until tomorrow. On that basis I cannot see any prejudice. I should allow him to make that claim, so I will do so." The transcript also records that, during the early morning, there were tendered the letter of 22nd September 1992 and the Development Application of 19th October 1992, each being admitted without objection - curiously, the tender, in each case, appears to have been made by Mr Motbey as the two documents were marked Exhibits "D" and "E" respectively. The hearing appears then to have followed a somewhat curious course, for, despite what Windeyer J had said in the early stages of the hearing, the transcript records that, after a number of those who had sworn affidavits had been called and cross-examined, the following then occurred: - "HIS HONOUR: That is the end of the evidence? MOTBEY: Yes it is. Hearing adjourned to Friday 24 September 1993 at 10.00 a.m." The Transcript for the following day then records counsel as having continued to address and that the following then occurred: - "COUNSEL ADDRESSED HIS HONOUR: So far as the rent from 1 March 1991 is concerned that will be based on $300,000. So far as the rent from I March 1993 is concerned that will be based on, I think it is agreed, $600,000. So far as land tax is concerned it would be the land tax apportioned to this property without a trustee basis and without any allowance which would have been available if it had not been a trustee holding. So far as the constructive notice as to the six foot strip of land is concerned I hold that there was no such notice binding the landlord. That leaves then the claim on the cross-claim, the only one which currently stands, and that is the lessee's denial of the landlord's entitlement and on that matter I will reserve. There are only two other matters, one of the denial of title, and secondly relief against forfeiture. MATTER STOOD OVER FOR JUDGMENT 5 OCTOBER 1993." Despite what appears in the transcript record of the hearing before Windeyer J, and what appears in His Honour's Judgment, there appears still to be some dispute between the parties as to what occurred before His Honour. That this is so is indicated by the following paragraphs in an Affidavit sworn on 2nd March 1994 by Alcune's solicitor: - "2. I was in Court instructing Mr Motbey of Counsel before Mr Justice Windeyer when Mr Jackson (sic) was addressing His Honour. Mr Jackson (sic) stated from the Bar table words to the effect that the Council file was not received until August 1993. I heard Mr Motbey say to the effect (sic) that 'tine plaintiff does not concede any of these matters and requires them to be properly proved in the usual way.' 3. Later Mr Motbey, in reply to Mr Jackson (sic), argued to the effect that it was obvious that the parties' lawyers were engaged in serious conflict, they were experienced on both sides, that the defendant would have to prove that it did not URJ ALCUNE PTY LTD v TRI-ANTA PTY LTD (Powell JA) 15 find out until August 1993 about the denial of title and the clear inference was that they knew about it all along and had decided to accept the rent." For present purposes, the only parts of the Judgment which Windeyer J delivered on 5th October 1993 which need be noticed are, first, that part where His Honour deals with Tri-Anta's right to take action under c136; second, that part where His Honour dealt with Tri-anta's claim to re-enter for alleged breach of covenant; and finally, that part where His Honour deals with Tri-Anta's claim to re-enter on the ground of Alcune's alleged denial of its (Tri-Anta's) title. So far as the first of these matters is concerned it is to be noted that if - as I assume to have been the case - His Honour's Judgment reflects the submissions made to him, Mr Motbey did not seek to re-argue the question which had been the subject of the earlier hearing before Brownie J, but, rather, sought to submit that Alcune would be entitled to an order for rectification restricting the right to take action pursuant to cl36 to situations in which the Council sought to exercise its right to realign the Lane for the purposes of road widening, or alternatively, that the Authority would have been, and, thus, Tri-Anta was, estopped from exercising its rights for any other purpose. Each of those questions was determined by His Honour in favour of Tri-Anta and His Honour's decision in these respects has not been the subject of any argument on the hearing of the Appeal and Cross-Appeal. So far as the second of these matters is concerned, His Honour held that, as to some of the alleged breaches, Tri-Anta's claims as to the amounts payable by Alcune were unjustified, and that, in fact, Alcune had paid more than it was liable to pay, while, as to the balance of the breaches alleged, "it (was) conceded by (Tri-Anta) that it cannot terminate for breach of the covenants stated at the outset to be relied upon. That concession (was) correctly made on the basis that (Tri-Anta) waived any such right by continuing to demand and collect rent well after the reasonable time for compliance had expired". So far as the third of these matters is concerned, His Honour, having considered the matter at length, held, first, that the letter of 22nd September 1992 was not of such a nature, nor written in circumstances, as would constitute it a disclaimer of Tri-Anta's title; and, second, that, even if it had been otherwise, Tri-Anta had waived the forfeiture by acceptance of rent after having had notice of the letter and its terms. In the circumstances, so far as is relevant to this Appeal and Cross-Appeal, His Honour determined, first, that Tri-Anta was entitled to a declaration that the Notice to Quit dated 2nd March 1993 was valid and binding upon Alcune; and, second, that Tri-Anta was not entitled to forfeit the lease, either, by reason of Alcune's alleged non-compliance with the Notice under s129 CA, or, by reason of any alleged denial of title or disclaimer based upon Alcune's letter to the Council or otherwise in connection with the obtaining of the Council's approval to the development of the subject property in 1992. As is apparent from what I have earlier recorded, both Alcune and Tri-Anta were dissatisfied with the Declaration and Orders made by Windeyer J, the former lodging an Appeal and the latter lodging a Cross-Appeal. By its Notice of Appeal Alcune has sought, first, "an Order answering the separate question (determined by Brownie J), "No'"'; second, an Order rescinding so much of the Orders made by Windeyer J as declared that Alcune was obliged 16 UNREPORTED JUDGMENTS to comply with the Notice to Quit; and, third, in lieu thereof a Declaration that Alcune was not obliged to comply with the Notice to Quit. In its Cross-Appeal, Tri-Anta sought a Declaration that it was entitled to forfeit the lease by reason of Alcune's alleged disclaimer. As will be apparent from what I have earlier recorded, Alcune complains that Brownie J misconceived the submissions which were advanced on its behalf in relation to the question the subject of the preliminary hearing, and, thus, fell into error, it following - so the complaint runs - that, when Windeyer J adopted Brownie J's conclusion in relation to that question as the basis for the Declaration which he made, he, too, fell into error. If it be the fact that, as is asserted, Brownie J misconceived the submissions which were advanced on behalf of Alcune in respect of the question the subject of the preliminary hearing, I can but say that if the, submissions then advanced were akin to those advanced on the hearing of the Appeal (see, for example, Transcript p4-p8) His Honour could be forgiven for having done so, as I, for one, had considerable difficulty in determining precisely what was Mr Motbey's submission in this respect on the Appeal. In the end, Mr Motbey's submission, in this respect, would appear to be that, if, in pursuance of the provisions of C136 of the lease, Alcune were, following the service upon it of a Notice to Quit, to deliver up possession of "the land coloured blue", the act of delivery of possession would constitute a "subdivision", it following that it could not lawfully deliver up possession unless, and until, the Council had approved of that "subdivision". The basis of this submission, as I understand it, is that, if the owner of an estate in land so deals with that estate that different persons in fact come immediately to control different parts of the land, or, the owner of the estate is enabled to bring about a situation in which different persons come to control different parts of the land, that action on the part of the owner of the estate constitutes a subdivision. Despite the fact that the relevant provisions of s4 LGA have formed part of the Act since it was originally enacted, and despite the inclusion of provisions to a similar - but not always identical - effect in similar statutes throughout the country (see, for example, Gave (No 1) Pty Ltd v Allan Rowlands Holdings Pty Ltd3 and cases there referred to), there is little guidance as to the proper construction to be placed on such a provision to be found in the authorities, although some authorities - as, for example, Re Lehrer and the Real Property Act* which held that a separate estate in part of a building is not "land" for the purposes of the definition, and Pelovic v Malinic5 and Gave (No 1) Pty Ltd v Allan Rowlands Holdings Pty Ltd which appear to hold that an action, or transaction, will not amount to a subdivision for the purposes of the definition unless that action or transaction has a present effect of rendering separate parts of the relevant land available for separate occupation or use - would suggest that some restriction upon the apparent breadth of the words is called for. As the reference, in Brownie J's Judgment, to the Judgment of Mahoney JA in Registrar General v Lee® indicates, one of the questions to which, as yet, there has been no definitive answer is whether or not para(a), para(b) and para(c) in the definition section are to be regarded as exhaustive of the meaning to be attributed 3. (1993) 67 ALJR 682; 114 ALR 349 4. (1960) 61 SR 365 5. (1959) 76 WN 744 6. (1990) 19 NSWLR 240, 248 URJ ALCUNE PTY LTD v TRI-ANTA PTY LTD (Powell JA) 17 to the words "dividing land into parts", or whether they are to be regarded as additions to, or extensions of, what would otherwise be the meaning to be attributed to those words. While I appreciate that other minds may differ on this question, it seems to me that, since several matters referred in para(a), para(b) and para(c) include matters which would, and matters which would not, fall within the meaning ordinarily to be attributed to the words "dividing land into parts", the definition section is to be regarded as one both of extension and restriction, that is to say is to be read as if it were 'subdivision' 'subdivide' and similar expressions mean and include dividing lands into parts by means of one or other of the following ways...". If this be so, then, so it seems to me, while the yielding up of possession might have the effect that "the land coloured blue" would then be capable - at least in theory although not in fact - of occupation by Tri-Anta or some person authorised by it, there would be no subdivision within the meaning of the Act since the yielding up of possession would not constitute an action or transaction of the type comprehended by para(a), para(b) or para(c) of the definition. If this be so, then it would follow that the Appeal ought to be dismissed. I turn, then, to consider the question raised for determination by Tri-Anta's Cross-Claim and Cross-Appeal. Although the principle which Tri-Anta prays in aid, and seeks to have enforced, is one derived from the peculiar aspects of feudal law which can hardly be thought to have any great relevance to modern life, if the fact be that the principle contended for is sound, and has not been overtaken by changes in the law then, of course, the Court's duty is to give effect to it, arcane though it might be. In his Judgment (Appeal Book p259-p260) Windeyer J sets out the passage in Bacons Abridgment (Bac. Abr. tit. "Leases and Terms for Years [T2] When forfeited") to which many of the text writers (see, for example, Halsbury 4 Ed XXVII para424; Hill & Redman, Landlord and Tenant 18 Ed para2187, Woodfall on Landlord & Tenant 29 Ed paral-2045) refer. Although, in the passage to which His Honour refers, it is asserted "that any act of the lessee by which he disaffirms or impugns the title of his lessor occasions a forfeiture of his lease" the passage appears later to restrict the class of acts which so operate to acts in pais - which seem to be limited to acts involving an alienation of the estate in fee by such mode of conveyance as displaces or divests the estate of the reversioner - or acts by matter of record - as, for example, where the lessee sues out a writ, or resorts to a remedy, which claims a right to the freehold, or where, in an action by his lessor grounded upon the lease, he resists the demand under the grant of a higher interest in the land - more recent authority (see, for example, Barton v Reed' Kisch, v Hawes Brothers Ltd' R Douglas & Co (Insurance) Pty Ltd v Economic Insurance Co Ltd?; cp. NRMA Insurance Ltd v B & B Shipping & Marine Salvage Co Ltd!0; Sydney v Real Estate & Investment Co Pty Ltd v Rich!!) would seem to take a more limited view of the classes of act which will provide a basis upon which a lessor may forfeit and re-enter on this ground. 7. [1932] 1 Ch 362, 367 8. [1935] Ch 102 9. (1951) 68 WN 225 10. (1947) 47 SR 273, 279 11. (1957) 74 WN 427, 429-431 18 UNREPORTED JUDGMENTS Despite the fact that more recent statements of the principle appear to describe it as a principle that if, by clear and unambiguous conduct, a lessee repudiates the existence of the relationship of landlord and tenant between himself and his lessor, that disclaimer operates, at common law, as a waiver by the tenant of the necessity for notice to quit and works a forfeiture of the lease entitling the landlord to re-enter if he should so elect, some of the distinctions derived from the older law appear still to be regarded as valid. Thus, while it is now accepted that a denial by parol of a landlord's title may work a forfeiture where the tenancy is one from year to year or of a lesser periodic nature Doe d Ellerbrock v Flynn!2 it seems still to be accepted that such a denial will not cause a forfeiture of a lease for a term certain (Doe Graves, Downe v Wells!3; Wisbech St Mary Parish Council v Lilley!4). So too, it seems still to be the position that, in order that a denial of title may operate as a denial of record and, thus, work a forfeiture, it must appear that the lessor's claim to possession is based upon a right of entry derived from a lease granted by him to the Defendant (Douglas & Co (Insurance) Pty Ltd v Economic Insurance Co Ltd!5). But whatever might otherwise be the extent of the principle, it seems to be universally accepted that, in order that words, or conduct, may constitute a disclaimer and, thus, work a forfeiture, the words or conduct relied upon must constitute a clear and unambiguous denial of the landlord's title. The difficulties - and there are many - in attempting to reconcile all the cases on the question whether particular words or conduct have, or have not, worked a forfeiture ultimately turn upon the view which the particular judge, or court, took of the particular words, or conduct, in the particular circumstances of the case and, for this reason, it seems to me that there is little purpose in examining such cases in detail. The question, thus, is, whether, in all the circumstances of the case, the letter of 22nd September 1992 to the Town Clerk clearly and unambiguously constituted a denial by Alcune, or a disclaimer by Alcune, of Tri-Anta's title. Although, in common with Windeyer J, I am disposed to think that the use of the word "proprietor" in that letter was probably intended to mislead in order to bring about a speedy approval of the Development Application that was later lodged, equally, in common with Windeyer J, I do not think that it can be said, either, that, in writing the letter, Alcune intended to deny, or that the letter ought to be regarded as clearly and unambiguously denying, Tri-Anta's title to the land. On the contrary, as a consideration of the correspondence which was, at the time, passing between, the parties' solicitors would demonstrate (see Appeal Book p176-p204) Alcune was proceeding upon the basis that Tri-Anta was its lessor, and, in particular, that, in accordance with its obligations under the lease, it was seeking its lessor's approval to its proposed sub-lease and to the proposed works to be carried out by Botticelli, and was, as well, putting its views as to the proper extent of its financial obligations under the lease. But, even if I had been of a contrary view, in common with Windeyer J I would have held that any right with Tri-Anta would otherwise have had to re-enter as on a forfeiture had been waived by Tri-Anta's actions, after becoming aware of the existence and terms of the letter of 22nd September 1992, in demanding and accepting rent for, in common with any other ground of forfeiture, a disclaimer 12. (1834) 1 CMR 137 13. (1889) 10 Ad & E 427 14. (1956) 1 WLR 121 15. (supra) at 229 URJ ALCUNE PTY LTD v TRI-ANTA PTY LTD (Powell JA) 19 may be waived by any act of the lessor, after acquiring knowledge of the facts upon which the rights to forfeit would be based, acknowledging the lessee as his tenant. In this respect, it seems to me to matter not whether - as Mr Motbey would have it - Tri-Anta became aware of the terms of the letter of 22nd September 1992 by no later than some time in November 1992 after the Council informed Tri-Anta of its receipt of the application for building approval, or - as Mr Jackman apparently stated in the course of submissions to Windeyer J - it did not acquire that knowledge until some time between 4th and 20th August 1993. I say this since, if the former be the correct position - but I would have thought the onus of establishing that to be so lay on Alcune - any right which Tri-Anta had to re-enter would have been waived long before it filed any Cross-Claim, while, if the latter be the correct position - and Mr Jackman's statement could constitute an admission of the relevant facts - the fact that, relying upon Alcune's alleged non-compliance with the terms of the lease and the Notice under s129 CA Tri-Anta filed its Cross-Claim - the alleged bases for which were ultimately held to be unfounded - would not, in my view, have constituted an affective re-entry in law so as to preclude Tri-Anta's acceptance of rent operating as a waiver of any right to forfeit by reason of the alleged disclaimer (cp Majala Pty Ltd v Ellas!6; Segal Securities Ltd v Thoseby!7 Lidsdale Nominees Pty Ltd v Elkharadly!8; Ripka Pty Ltd v Maggiore Bakeries Pty Ltd!9. In these circumstances it seems to me that the Cross-Appeal should in its turn be dismissed. If, as is my view, both the Appeal and the Cross-Appeal are to be dismissed, it seems to me appropriate that there should be no order as to the costs of either the Appeal or the Cross-Appeal. The formal Orders which I would therefore propose are: - 1. ORDER that the Appeal be dismissed. 2. ORDER that the Cross-Appeal be dismissed 1. ORDER that the Appeal be dismissed. 2. ORDER that the Cross-Appeal be dismissed. 3. MAKE NO ORDER as to the costs of either the Appeal or the Cross-Appeal. Counsel for appellant: S J Motbey Solicitors for appellant/cross-respondent: Jenkins & Associates (Bondi Junction) Counsel for respondent: I M Jackman Solicitors for appellant/cross-respondent: Garland Hawthorn Brahe 16. [1949] VLR 104 17. [1963] 1 QB 887 18. [1979] VR 84 19. [1984] VR 629