NSW_ RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NSW SMALLBORE & AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL POWELL, BEAZLEY and STEIN JJA 20 May 1997, 15 August 1997 [1997] NSWCA 234 Agreement for permissive occupancy — interpretation. Termination — reasonable notice. Unconscionability and unjust enrichment — not applicable The Commonwealth entered into agreements which granted to the appellant associations a permissive occupancy of an area forming part of the land at Malabar known as the Anzac Rifle Range "for such period as the land is used as a rifle range". The Commonwealth's use of the land as a rifle range ceased and it sought to terminate the appellants' occupancy by giving notice to each of them. The appellants claimed that the Commonwealth could only terminate their occupancy of the land in the specified circumstances, which had not occurred, and that the appellants continued to use the land as a rifle range. The appellants claimed that the manner in which the Commonwealth sought to terminate the arrangements without the payment of compensation for the value of improvements to the land was unconscionable. Held: (1) the expression "use of the land as a rifle range" means the whole of the land, not just the permissive occupancy area; (2) the term of the occupancy period refers to the use of the land for the purpose of a rifle range. This means use for that purpose by the Commonwealth. The "agreement" did not create an irrevocable licence or a lease or other estate in land; (3) whether or not the "agreement" was contractual in nature, the period of notice granted by the Commonwealth was reasonable; (4) the Commonwealth's conduct in determining the occupancy was not unconscionable and did not give rise to unjust enrichment. Hornsby Council v Roads & Traffic Authority (Court of Appeal, unreported, 19 March 1997) Hume v Rundell (1924) 57 ER 311 Lloyd v Lloyd (1937) 40 ER 613 Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1981-2) 149 CLR 337 referred to. Powell JA The question for determination upon the present appeal is whether Bryson J erred when he held that such rights as the Appellants, or either of them, had held to occupy, and to use, certain parts of the lands at Malabar now comprised in Folio Identifiers 1/809094, 2/809094, 3/809094 and 4/809094 which lands were, until comparatively recently, generally known as the Anzac Rifle Range ("the Range"), and of which lands the Respondent was at all material times, and still is, registered as the proprietor, had been validly determined prior to the commencement of these proceedings. Although, in the end, the determination of that question depends, to a great extent, upon the proper construction to be given to two "agreements" - the first, dated 17 October 1972 to which the First Appellant ("the Rifle Association'"') was a party, and the second dated 2 March 1980, to which the Second Appellant ("the Smallbore 2 UNREPORTED JUDGMENTS Association") was a party - entered into between the Appellants and the Respondent, a proper understanding of the manner in which the disputes between the Appellants and the Respondent arose, requires an understanding of what, over the years, has been the relationship between associations such as the Appellants and - prior to Federation - State governments and - since Federation - the Respondent. Before proceeding to record, in as brief a fashion as appears to be possible, the history of those relationships, I should record that, although the Rifle Association was not incorporated until 1987, and the Smallbore Association was not incorporated until 1988 - in each case pursuant to the provisions of the Associations Incorporation Act 1984 ("the Associations Act") - each of the proceedings the subject of this appeal has been conducted upon the basis that each of the Appellants was, at all relevant times, entitled to the benefit of the "agreement" which had earlier been entered into by, or on behalf of, the unincorporated association which it replaced and the Respondent (see Associations Act s15(3), Sch 2 cl1(a),cl1(b)). Prior to Federation, the military forces of the several Colonies - now States - were, at best, small and ill-organised and, to a great extent, made up of volunteers. The first volunteer unit to be raised in Australia was the Volunteer Sydney Rifle Corps which was raised by the Government of New South Wales in 1854, the impetus for the raising of that unit in all probability being the fear of a Russian attack on Sydney, which fear was current at the time of the outbreak of the Crimean war. At the time of the raising of the Volunteer Sydney Rifle Corps - which comprised six companies - a troop of cavalry and a battery of artillery were also raised. However, the support provided by the Government to the Corps was insignificant, the result being that, within a short time of its being raised, the force began to dwindle away. By the late 1850's, all available British regiments in Australia were being sent to New Zealand to take on the hostile Maoris, the result being that the Colony of New South Wales' defences was parlous. Accordingly, in 1860, a public meeting - among the speakers at which were (Sir) Henry Parkes and William Charles Windeyer, later a judge of the Supreme Court, the grandfather of Windeyer J of the High Court and the great-grandfather of the present Windeyer J of the Supreme Court - decided to revive the volunteer movement. The renamed Sydney Battalion of Volunteers raised six companies. As well, a troop of mounted rifles was formed. A company of rifles was formed at Penrith and at Windsor and three batteries of volunteers were formed - two in Sydney and one in Newcastle. By 1861, all of the Australian Colonies had raised similar local defence forces (see Chapman: Sydney University Regiment - The First 80 Years (1997) p8-p14). It was at the same time when the predecessor of the Rifle Association was formed, the aim, so it would seem, being to give permanency and efficiency to the volunteer corps by creating a competitive spirit. To this end, so it would seem, there were established a number of rifle clubs comprising members of the volunteer corps, the first prize meeting which was attended by some 500 volunteer corps members being held in September 1861. In the following year, there was held what was the first of a series of inter-Colonial contests between New South Wales and Victoria. By 1870 the defence forces of New South Wales comprised a Naval brigade - some 235 in number - the members of which - who were mariners by occupation - were paid a monthly retainer of £1, and a volunteer force comprising seven batteries of artillery - 535 - the first Sydney Battalion - comprising six companies of rifles - 589 - a suburban battalion comprising seven companies of rifles - 629 WAW RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NSW SMALLBORE & AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA (Powell JA) - a country corps comprising fifteen companies of rifles - 1,221 - and a cadet corps comprising four companies in a number of schools in the State. A little later an engineer corps was formed. The total amount voted by the State Parliament for the volunteer force and the Naval brigade in 1870 was £11,966.0.0 (see Chapman ibid p18) the retainers of the members of the latter of which representing about a quarter of the total vole. As far as I have been able to ascertain it, the general pattern which I have set out above was reflected in the other Colonies and continued both in New South Wales and in the other Colonies until Federation. Upon Federation, the voluntary unpaid rifle companies became Australian Rifle Clubs and, under the provisions of the Defence Act 1903 ("the Defence Act"), were made part of the Military Reserve Forces of the Commonwealth. At some stage, so it would seem, there was established a National Rifle Association of Australia with which each of the State Rifle Associations was affiliated and the Council of which comprised representatives of each State Rifle Association. At least in this State - and, in all probability, in the other States - the State Rifle Association comprised a number of district Rifle Associations, those district associations in their tum comprising a number of member clubs. As at 1990 - the relevance of which date will shortly appear - the Rifle Association comprised eighteen district Rifle Associations including the Metropolitan District Rifle Association, those district Rifle Associations comprising some one hundred and forty-two rifle clubs spread throughout the State. Although it seems likely that competitions which were conducted by the various Colonial - later State - Rifle Associations may have included both fullbore (the military weapon) competitions and smallbore competitions - indeed, the inter-Colonial contests between New South Wales and Victoria which were held in the late 1860's comprised both fullbore and smallbore competitions - it would seem that, in January 1912, the predecessor of the Smallbore Association was formed under the style of the Miniature Rifle Association of New South Wales as the body to control in this State smallbore competitions. Later - seemingly, consequent upon the formation of the Australian Smallbore Rifle Association in 1962 - the Miniature Rifle Association changed its name to the New South Wales Smallbore and Air Rifle Association and affiliated with the Australian Association. Whether or not the clubs associated with the various smallbore associations were constituted as part of the Military Reserve Forces is by no means clear to me. Until 1949, those clubs which were regarded as part of the Military Reserve Forces received direct, and indirect, assistance from the Commonwealth Government in the form of the provision of rifles, ammunition, range facilities and grants for rifle range works. Ranges were classified either as military or non-military ranges. Military ranges were maintained by the Army and were made available to rifle clubs for occupancy and use including the construction of buildings for rifle club purposes. Non-military ranges were primarily for rifle club purposes although available as required for military use. For the most part they were constructed on Commonwealth land, or on land leased by the Commonwealth, and were maintained by the clubs with the aid of grants through Army votes. In 1949, the Government of the day, acting on military advice that the rifle clubs no longer had any significant military value, deleted the provision in the Defence Act by which rifle clubs were constituted as part of the Military Reserve Forces. No variation was, however, made in the assistance to be provided for rifle clubs, nor in the Regulations under which the rifle clubs were administered by the 4 UNREPORTED JUDGMENTS Department of the Army. Between 1957 and 1962, the financial and administrative support given to rifle clubs by the Department of the Army was reviewed by Cabinet, the principal Cabinet decisions being Decision No 551 of 19 November 1959 and Decision No 484(GA) of 10 October 1962. It was during the period when the rifle clubs were part of the Military Reserve Forces that the association commenced to carry on its activities on land at Holsworthy, which land was owned by the Respondent and upon which the Respondent had had a military complex since well before the outbreak of World War I. Situated on the land at Holsworthy was a rifle range then known as the Anzac Rifle Range. In 1926, or at some time thereafter, the Rifle Association erected on the land a building which was its headquarters and which was known as Jamieson House. In addition, the Rifle Association either built, or had the use of, a very large target shed which was associated with the rifle range. All the rifle clubs which were associated with the Rifle Association built their own huts which contained their club facilities, there being about fifty of such buildings. Neither the Rifle Association, nor any of the clubs associated with it, had any documentary title to occupy, or to use, the land or the rifle range. Leading to the land occupied by the Rifle Association and the clubs was a memorial avenue lined with trees bearing the names of members who had been killed in World War I and World War II, at the entrance to which memorial avenue there had been erected by the Rifle Association a pair of memorial gates. In the period between 1957 and 1962 the Government gave consideration to a redevelopment and reorganisation of the use by the Army, of the Respondent's land at Holsworthy and the associated lands owned by the Respondent at Moorebank and at Ingleburn. As the result of that consideration, it was determined that the then Anzac Rifle Range should be closed with a view to the Holsworthy training area being converted into a barracks for the Australian Regular Army and an associated Army housing development. That decision having been taken, the Secretary of the Department of the Army in June 1962 wrote to the Secretary of the Rifle Association advising him of that fact and, as well, advising him of the fact that the existing range at Malabar could be up-graded and might provide a suitable site upon which the Rifle Association and the clubs associated with it could be located and might carry out their activities. The Respondent's land at Malabar upon which, in broad general terms, the rifle range was situated, is bounded in part on the North by Maroubra Bay, on the East by the South Pacific Ocean and in part on the South by Long Bay. In the early 1960's there were situated on the land two classification ranges, the first, known as Area A, being for seventy targets for ranges up to 600 yards, and for ten targets for ranges from 700 up to 900 yards, and the second, known as Area B, being for forty targets for ranges up to 600 yards. The range in Area A was laid out in a direction running roughly from North West to South East, with the target area and the stop-butts being at the South-East end, while the range in Area B was laid out in a direction running roughly from West-North-West to East-South-East, with the target area and stop-butts at the East-South-East end. Situated between the two areas, and near the Westerly end of Area B was a group of buildings which seem to have provided a bivouac area for troops using the ranges and, as well, accommodation for those concerned with the control and administration of the ranges. At a later stage, so it would seem, a pistol range appears to have been erected in a position adjoining the Northern side of the range on Area B and near the target area and the stop-butts, while on the Southern side of the range on Area B, there appears to have been erected a small range for the Sporting Shooters' WAW RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NSW SMALLBORE & AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA (Powell JA) Association of Australia, that range running from a projection of the target area on the range on Area B back in a West-North-West direction for a distance of some 200 yards or so. The "danger zones" associated with each of the ranges on Area A and Area B were such that they occupied virtually the whole of the Respondent's land except for the land occupied by the bivouac and administration area to which I have earlier referred and the land to the West of it. At the time when the Secretary of the Army advised the Secretary of the Rifle Association of the Government's decision in relation to the closure of the then Anzac Rifle Range, the Association was given an assurance that the range would not be closed under a minimum of 5 years and that at least two years' clear notice would be given before the range was finally closed. In the event, the Rifle Association agreed to move to the land at Malabar. On 13 December 1965, the Respondent advised that the then Anzac Rifle Range would be closed on 31 December 1967. At the time, the Respondent proposed that it would give some financial assistance toward the establishment of the Rifle Association at Malabar and suggested that the Association undertake the erection of buildings to suit its purposes to a design to be approved by Headquarters, Eastern Command. In the event, there were erected on a parcel of land adjacent to the bivouac and administration area to which I have earlier referred, and the Western end of the range on Area B, which had been designated by the Respondent for such purpose, five buildings, a two-storey building named Jamieson House, which was the headquarters of the Rifle Association, and four long motel style buildings to provide accommodation for the various rifle clubs associated with the Rifle Association. At the same time, the memorial gates which had been erected at the entrance to the drive at the land at Holsworthy were removed and re-erected at the entrance to the land at Malabar. Those works appear to have been completed by January 1968 when the Rifle Association and the rifle clubs moved to Malabar and commenced to carry out its, and their, activities there. Meantime, the Respondent had had carried out a considerable amount of work to upgrade the area, which area, after January 1968 came to be known as the Anzac Rifle Range. Beginning in 1966, discussions took place between officers of the Respondent and the Rifle Association with a view to determining the nature of the tenure which the Rifle Association would have to the land on which were erected Jamieson House and the four buildings used by the various rifle clubs. However, it was not until October 1972 when there was executed the "agreement", to which I will shortly refer, in which there was reduced into writing the terms upon which that land was occupied by the Rifle Association and the rifle clubs associated with it. As will perhaps be apparent from what I have written above, the history of the relationship between the Smallbore Association and the Respondent is less clear than is the history of the relationship between the Rifle Association and the Respondent. Although it would appear, at one time, there was situated on the land at Long Bay a 25 yard smallbore range, the location of which I have been unable to determine, there is no evidence that the Smallbore Association of any of its constituent clubs occupied, or used, any part of the land at Holsworthy or at Malabar prior to about 1975. There is, however, some evidence to the effect that, 6 UNREPORTED JUDGMENTS for some time prior to 1971, the Smallbore Association was accustomed to conduct range practices at the range at Victoria Barracks in Paddington. It would seem that, in 1971 or thereabouts, the Department of the Army may have indicated to the Smallbore Association that the range at Victoria Barracks would not continue to be made available to the Smallbore Association, at the same time indicating that a site for a smallbore range might be made available at the Anzac Rifle Range site. That site apparently being acceptable to the Smallbore Association, it submitted to the Department of the Army for its approval, plans for the construction of a range facility at the Anzac Rifle Range site. Over the course of the next few years works were carried out on behalf of the Smallbore Association for the establishment of a 50 metre smallbore range. Those works appear to have included the construction of a stop-butt, a steel deflection plate and a concrete firing mound. Later, approval was given for the construction of a covered firing point and attached community building, and, later again, approval was given for the construction of a small secure storage area for records, equipment, supplies and ammunition, and toilets. Although it would appear that members of the Smallbore Association, or of the clubs associated with it, commenced range practices at the range site at Anzac Rifle Range in about mid-1975, there appears not to have been a formal opening of that range until 1980. Meantime, on 17 October 1972, there had been executed the "agreement" intended to record the terms upon which the Rifle Association, and the clubs associated with it, occupied that part of the land on the site which had been allotted to it. Far from that "agreement" being a shining example of the craftsman's art, it is a singularly inelegant document and one which calls to mind the efforts of the, by now, legendary "blundering attorney's clerk" - or, if one prefers it, the "attorney's blundering clerk". The "agreement", which was signed on behalf of the Rifle Association by its then Secretary and on behalf of the Respondent by the then Assistant Quartermaster General (Accommodation) on Headquarters, Eastern Command, was in the following terms: " MALABAR: OCCUPATION OF ARMY LAND BY THE NSW RIFLE ASSOCIATION The New South Wales Rifle Association hereby acknowledges occupation of the Commonwealth land shown edged blue on the attached Plan CEN 2096 at Malabar as from 12th February, 1968, for such period as the land is used as a rifle range and for which the Commonwealth agrees that there will be no fee or rental charged for such occupancy, but this agreement will be subject to the following conditions: a. The permissive occupancy to be terminated only in the event of mobilization, an emergency proclaimed by either the State or Commonwealth, land being no longer used as a rifle range or if the NSW Rifle Association desires to vacate the area. NOTE: The emergency referred to above could be described as a situation short of general mobilization which would necessitate the resumption for military purposes of the land and/or buildings occupied by the NSW Rifle Association. b. The NSW Rifle Association is not to sub-lease without the prior approval of Headquarters Eastern Command. WARW RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NSW SMALLBORE & AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA (Powell JA) c. No compensation or rent to be payable to the NSW Rifle Association if its buildings are occupied in any such emergency except for such amount as may be required to restore the buildings to their condition at the time of take-over unless otherwise agreed by the NSW Rifle Association. NOTE: The emergency referred to above could be described as a situation short of general mobilisation which would necessitate the resumption for Military purposes of the land or buildings occupied by the NSW Rifle Association. d. The Commonwealth to have first option to purchase any improvements on the land which may become surplus to requirements or in the event of the NSW Rifle Association being disbanded. NOTE: Commonwealth's intention to purchase will be notified as soon as practicable and the price will be determined by agreement. e. The NSW Rifle Association to be permitted to arrange the sale demolition and removal of any Association Asset which may become unserviceable due to construction faults. f. The NSW Rifle Association to be responsible for the restoration or demolition of any building which may become unserviceable due to constructional faults. g. No external alterations or additions to be carried out to buildings without the prior approval of Headquarters Eastern Command. h. No additional buildings to be erected within the permissive occupancy area or on the Range proper without the approval of Headquarters Eastern Command. i. The NSW Rifle Association to be responsible for the payment of all service charges and supply and installation of meters where applicable. j. The NSW Rifle Association to be responsible for the repair, painting and maintenance of its buildings, roads assets and internal service mains within the permissive occupancy area. k. The buildings and site to be maintained in a clean and tidy condition. 1. The NSW Rifle Association to comply with any instruction issued by Headquarters Eastern Command concerning the use of the land not inconsistent with these conditions. m. The NSW Rifle Association to be the sole authority for control and allocation of accommodation situated within the permissive occupancy area. n. The NSW Rifle Association to indemnify the Commonwealth from and against all actions, suits, claims, demands of whatever nature and all costs, damages or charges and expenses which may be brought against the Commonwealth or which may occur in respect of any damage which may arise during the continuance of the permissive occupancy unless the damage shall occur by reason of any act, neglect or default of the Commonwealth or any of its officers or servants." The plan attached to the "agreement" was in the following form: [Editor's Note: The following plan on page 14 cannot be reproduced by Electronic Publishing.] Although it may not be readily apparent that this was so, the land depicted on the land represented but a small portion of the Respondent's land at Malabar. The thin parallel rectangles appearing on the North Eastern end of the plan represent the firing mounds at 900, 800, 700, 600 and 500 yards on the range in Area A; the structures appearing to the East of the land edged blue represent the buildings in the bivouac and administration areas on the land; while the thin rectangle to the South East of the land edged blue represents the 600 yard firing mound on the range in Area B. Within the land edged blue are depicted the 8 UNREPORTED JUDGMENTS four motel style buildings which had been erected for use and occupation by the clubs associated with the Rifle Association and, towards the North Eastern edge of that land, Jamieson House. A car park area and a caravan park appear later to have been established in the area which I have edged in green on the plan. The area which I have edged in red on the plan depicts the area which had been made available to the Smallbore Association and upon which was erected the smallbore range to which I have earlier referred. By February 1980, further works had been, and were being, carried out by the Respondent on the Malabar land. Those works included the construction of firing mounds at 600, 700 and 800 metres and the heightening of the stop-butts on the range in Area A, the establishment of "metric mounds", the raising of the height of the stop butt and the commencement of the establishment of the pistol range and the special range for the Sporting Shooters' Association of Australia on, or adjacent to, the range on Area B, as well as the establishment of the car park area and caravan park to which I have earlier referred. In February 1980, a Mr Lown, who appears at the time to have been the Inspector of Rifle Clubs, writing on the letterhead of Headquarters 2nd Military District, as Eastern Command had by then become known, wrote to the then Chairman of the Smallbore Association, a letter which was in the following terms: "MALABAR: OCCUPATION OF ARMY LAND BY NSW SMALLBORE RIFLE ASSOCIATION It has been decided to regularise the occupancy of the land at Anzac Rifle Range, Malabar which will be used by your Association as a smallbore rifle range. No fee or rental will be required for this occupancy and the agreement will be subject to the conditions indicated in the attached draft document. Would you please examine the draft agreement. Your comments and indications of acceptance of the conditions would be appreciated as soon as possible." Save only that the name of the Smallbore Association had been substituted for the name of the Rifle Association wherever appearing and that the "NOTE appearing in condition (a) had been omitted, and the period of the Smallbore Association's occupancy was left blank - when the "agreement" was executed on 2 March 1980, the period of the Smallbore Association's occupancy was said to commence as from 3 March 1908 - the draft "agreement" was in identical terms with the agreement which had been executed on behalf of the Rifle Association in October 1972. When the "agreement" was executed on 2 March 1980, the "land shown edged blue on the attached plan CEN 2096" was that which I have edged in red on the copy of the plan which I have earlier reproduced. It is convenient, before passing on, to pause to record certain basic facts about the relationship between the lands the subject of the two "agreements" and the lands owned by the Respondent. They are as follows: 1. the total area of the land at Malabar owned by the Respondent is approximately 161 hectares; 2. the land the subject of the "agreement" with the Rifle Association appears to be about 2 hectares or a little more in area; WAW RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NSW SMALLBORE & AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA (Powell JA) 3. the land the subject of the "agreement" with the Smallbore Association is approximately 0.8 hectares in area; 4. the lands occupied by the two Associations thus represent less than 2% in area of the land at Malabar owned by the Respondent. As will be apparent from what I have written above the "agreement" between the Rifle Association and the Respondent did not - at least in terms - provide for the use by the Rifle Association or the member clubs of that Association or the members of the various rifle clubs of either of the rifle ranges on Area A or Area B. The use by a rifle club and its members of a rifle range which was used by units of the Defence Forces was provided for by reg55 of the Australian Rifle Club Regulations which at all relevant times was in the following terms: "55. A rifle range which is used by any Naval, Military or Air Force unit shall be available for the rifle clubs in the locality, but a rifle club shall only be permitted to use the range at such times as are arranged by the responsible officers of the services concerned. In July 1986, the then Federal Cabinet decided to declare the land at Malabar as surplus to the Commonwealth's requirements and decided that the land should be sold. Thereafter, in August 1986, the Acting Deputy Secretary of the Department of Defence wrote to the Secretary of the Rifle Association in the following terms: "You will be aware the Government has decided that the Anzac Rifle Range, Malabar, NSW is to be sold. Iam not able to advise you yet of the point at which vacation of the range will be necessary, but will do so as quickly as possible. You may be assured that you will be kept informed as further advice concerning arrangements for disposal of the range becomes available. I would be grateful for your assistance in advising the individual rifle clubs of the decision, and subsequently of the arrangements for disposal." Although the evidence before the Court does not establish that this was in fact so, other material suggests that a similar letter was written to the Smallbore Association and to other users of the Range at about the same time. Following the Cabinet's decision to sell the land, administrative control of it passed from the Army to the then Department of Administrative Services and, in particular, to the Australian Property Group ("APG") which, as it seems, acted for the Australian Estate Management ("AEM"), the administrative owner of the Respondent's land in New South Wales, each of which bodies was part of the then Department of Administrative Services. It would seem that the Army discontinued shooting on, and the active military use of, the Range on 30 June 1987 but, following representations made to the Commonwealth, it was agreed that the Army should maintain a presence upon the land until 31 May 1988 for the purpose of "overviewing" two private shooting events, the Queens Medal Shoot in August 1987 and the 1988 Bi-Centennial Shoot. On 3 July 1987, the Assistant Secretary (Property Management and Disposal Branch) of the Department of Administrative Services wrote to the Honorary Secretary of the Smallbore Association as follows: "T refer to your letter of 30 April 1987 to the Minister for Defence, concerning the sale of the Anzac Rifle Range. The matter was referred to my Minister and I am replying on his behalf. The Government has confirmed its decision to sell the range, but as you are probably aware has agreed that the Bi-Centennial Shoot should be allowed to take place. 10 UNREPORTED JUDGMENTS The Department is currently negotiating with the relevant authorities in New South Wales to ensure that the property is sold with acceptable development conditions, both to the Commonwealth and the State. In examining possible future uses of the property the view of all interested parties are being considered, including those of the shooting movement. We have meet with representatives of the NSW Rifle Association and have kept the Association informed of significant developments." As I have previously recorded, it was at about this time when the Rifle Association became incorporated pursuant to the provisions of the Associations Incorporation Act 1984. It would seem that, prior to January 1988, the Respondent had negotiated with the New South Wales Government with a view, first, to having the land use zonings then applying to the land changed when the land, as was contemplated, passed out of the Respondent's ownership and, second, to disposing of the land. On 20 January 1988, the Acting Special Adviser of APG wrote to the then Secretary of the Rifle Association - who, so it seems, was also the General Manger for the Bi-Centennial Shoot - a letter which, so far as is relevant, was as follows: "As we undertook to do in previous correspondence and discussions, I am writing to advise you of the latest developments with the sale of Anzac Rifle Range. My Minister last year endorsed a disposal strategy involving sale of property as a single package. In line with this strategy we have developed a marketing plan for the property which will commence with a full page press advertisement on 21 January. This will also mark the opening of the tender period which will run until 25 March. I appreciate your concern to find a suitable alternative location to enable you to continue rifle shooting activities after Anzac is no longer available. Given the proposed time frame for the marketing and sale of the property, I am keen to meet with representatives of the rifle shooting movement to discuss the re-location question and related issues. I have sent copies of this letter to the NSW Smallbore and Air Rifle Association and the Sporting Shooters Association given their involvement with the range." On 22 February 1988, there was filed in proceedings No 1431 of 1988 in the Equity Division a Summons in which, so it would seem, the Rifle Association sought a declaration that the Respondent was not entitled to terminate the Rifle Association's right to use the rifle range or to occupy the land the subject of the "agreement" between it and the Respondent and injunctions restraining the Respondent was interfering with the rights which were claimed by the Rifle Association. On the following day, 23 February 1988, Lt-Col Jones, writing on behalf of the Commander 2nd Military District, wrote to the Secretary of the Smallbore Association in the following terms: "As you are aware, the Anzac Rifle Range is scheduled for disposal under arrangements formulated by the Department of Administrative Services who have assumed control of the facility. WAW RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NSW SMALLBORE & AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA (Powell JA) Accordingly, you are advised that range practices are to cease as of 31 March 1988. Any correspondence relating to use of the facility after 31 March 1988 should be addressed to the Department of Administrative Services." On 16 March 1988, the Chief Property Officer for New South Wales of the Department of Administrative Services signed and forwarded to each of the Rifle Association and the Smallbore Association a "Notice of Termination", the terms of which - inserting the appropriate date for the relevant "agreement" - were as follows: " NOTICE OF TERMINATION The Commonwealth of Australia, as owner of the land known as the Anzac Rifle Range, Malabar, part of which you occupy pursuant to Agreement dated hereby gives notice that from and including the first day of June 1988, the land will no longer be used as a rifle range. Under Cl(a) of the Agreement, the Commonwealth is entitled to terminate your occupancy in such event. Accordingly, the Commonwealth of Australia HEREBY GIVES YOU NOTICE that your right of occupation is terminated as at 12 midnight on the thirty-first day of May 1988." It would seem that, prior to 6 May 1988, the Respondent had determined to accept an unconditional offer for the purchase of the land. However, before contracts to give effect to that determination were exchanged, on 6 May 1988 in the proceedings in the Equity Division there were made orders restraining the Respondent, until further order, from: 1. selling, contracting to sell or otherwise dealing with the land otherwise than expressly subject to the possessory rights of the Association in the land, its rights to access and its rights to use the rifle range; 2. taking any step or doing any acts, including the selling of the land, to interfere with or which would have had the consequence of interference with the possessory rights of the plaintiff in the land, its rights to access and its rights to use the rifle range; 3. from interfering with the Rifle Association's use of the rifle range on Tuesdays, Saturdays and Sundays. It was during 1988 when the Smallbore Association was incorporated pursuant to the provisions of the Associations Act. The proceedings in the Equity Division came on for hearing before Waddell CJ in Eq on 30 and 31 January 1990, on which latter day his Honour reserved his Judgment. In the Judgment which he delivered on 26 April 1990, his Honour held, first, that the Rifle Association's licence to use the land - and, by implication, the licence for the various rifle clubs and their members to use the land - should be regarded as one which was terminable on reasonable notice; second, that the notice which had in fact been given was inadequate and that "a period of perhaps 3 years notice should have been given", pending the expiration of which notice the Rifle Association and the rifle clubs would be entitled to continue using the rifle range; third, that the Rifle Association's rights to occupy the land and to use the rifle range had not been terminated as at the date of his Honour's Judgment; and fourth, that there should be a declaration to that effect but that otherwise the Statement of Claim (sic) should be dismissed. 12 UNREPORTED JUDGMENTS The formal Orders which, so it would seem, were made on 23 August 1990 to give effect to the Judgment of Waddell CJ in Eq so far as is relevant were as follows: "1. DECLARE that the Defendant... has not validly terminated the Plaintiff's... right to use the land at Malabar known as the Anzac Rifle Range as a rifle range. 2. DECLARE that the Defendant... has not validly terminated the Plaintiff's... right to occupy the land shown edged blue on Plan CEN 2096... pursuant to the Agreement dated 17 October 1972... 3. ORDER that the Statement of Claim be otherwise dismissed. 5. ORDER that the Orders in these proceedings made on 6 May 1988 be discharged. 6..ORDER that the Defendant... pay the Plaintiff's... costs of the proceedings." The fact that, although making the declarations which he did, Waddell CJ in Eq discharged the injunctions which had been granted in May 1988 and otherwise dismissed the proceedings which had been brought by the Rifle Association, makes it at least arguable that it was not his Honour's view that, before the rights claimed by the Rifle Association were terminated, a fresh Notice of Termination, allowing at least 3 years before the termination became affective, would need to be given by the Respondent. This notwithstanding, the Respondent obviously took the view that such a fresh Notice was required for, on 20 August 1990, the State Manager Australian Property Group New South Wales signed and caused to be delivered to each of the Rifle Association and the Smallbore Association a Notice of Termination which - inserting the appropriate date of the relevant "agreement" - was in the following terms: " NOTICE OF TERMINATION The Commonwealth of Australia, as owner of the whole of the land contained in Certificate of Title Vol 13744 Fol 38 known as the Anzac Rifle Range, Malabar, part of which you use as a rifle range and part of which you occupy pursuant to a written Agreement dated HEREBY GIVES NOTICE that your right and licence to use the land or any part of it as a rifle range will terminate at 12.00 midnight on 25 August 1993 at which time the land will no longer be used as a rifle range and that, as a consequence, your right and licence to occupy that part of the land the subject of the said Agreement will terminate at the same time on the same day." The first of these proceedings was commenced on 16 July 1993 on which day there was filed a Summons in which the Smallbore Association sought: 1. A declaration that the Notice of Termination of the Plaintiffs right and licence to occupy and use the land described in the Schedule, dated 20 August 1990, was null and void and of no effect. 2. A declaration that the Plaintiff had an equitable charge over the land contained in the Certificate of Title Volume 13744 Folio 38 in the sum of one hundred and twenty thousand dollars. 3. An order that the Defendant abstain from giving effect to the said Notice of Termination. 4. Costs. The second of these proceedings was commenced on 5 August 1993 on which day there was filed a Summons - one assumes - claiming similar relief. WAW RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NSW SMALLBORE & AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA (Powell JA) Thereafter, one assumes, pursuant to directions given on the return of each Summons, each of the proceedings continued on pleadings, the Statement of Claim in the first of the proceedings being filed on 2 September 1993 and the Statement of Claim in the second of the proceedings being filed on 8 October 1993. Meantime, the second of the proceedings had come before Bryson J who, on 18 August 1993, noted the following: "1. Upon the Plaintiff by its counsel giving to the Court the usual undertaking as to damages, the Defendant by its counsel undertakes to the Court, without admissions, as follows: (a) the Defendant, until further order, will not sell, contract to sell or otherwise deal with the land at Malabar being the land in Folio Identifier 1/809394 (hereinafter referred to as 'the land') otherwise than expressly subject to the right of the plaintiff with respect to the land as set forth in the agreement between the Plaintiff and the Defendant dated 17 October 1972 its right to access to the land and its right to use the land as a rifle range, which rights it presently enjoys. (b) the Defendant, until further order, will not take any steps or do any act, including the selling of the land, to interfere with or which would have the consequence of interfering with the Plaintiff's land with respect to the land as set further in the said agreement, its right to access to the land and its right to use the land as a rifle range, which rights it presently enjoys. 2. The Court notes the Defendant's undertakings are given on the basis that the Plaintiff agrees that it will support any application the Defendant may make that the hearing of these proceedings be expedited. In its Defence to the first of the proceedings the Respondent put in issue all relevant allegations and, as well, asserted that the Smallbore Association's right to occupy the land had been terminated as from 12 midnight on 25 August 1993. With its Defence the Respondent joined a Cross-Claim in which it sought Judgment for possession of the land, leave to issue a Writ of Possession forthwith and mesne profits. In its Defence to the second of the proceedings, the Respondent, in addition to putting in issue all relevant allegations and asserting that the Rifle Association's rights of occupation and use of the rifle range had been validly terminated, raised a defence - based on the Judgment delivered by Waddell CJ in Eq in the earlier proceedings - to the effect that the Rifle Association was estopped from asserting that its rights would only terminate upon the happening of any of the events specified in para(a) of Agreement of 17 October 1972 and, further, from asserting that the period of 3 years' prior notice which was in fact given in 1990 was not reasonable notice in the circumstances. With its Defence, the Respondent joined a Cross-Claim in which it sought relief identical with that which had been claimed in the Cross-Claim filed in the proceedings which had been brought by the Smallbore Association. Although it is not necessary to record, in any great detail, the evidence which was tendered on each side in the hearing of the proceedings before Bryson J on 14, 15 and 16 June 1994, it is convenient to record that it included: 1. evidence on behalf of both the Smallbore Association and the Rifle Association as to moneys in fact expended by each Association in constructing the various improvements upon the lands the subject of each of the two "agreements", as to the value in 1993 of those improvements, and as to the costs of re-establishing the operations of each Association in a new location; 14 UNREPORTED JUDGMENTS 2. on behalf of the Respondent, evidence that, in the period from | July 1990 to 30 June 1993, it had incurred in respect of the maintenance of the land, of services (as for example, electricity) supplied to the land and for rates (water rates) levied in respect of the land sums totalling $164,546.00, and that it had provided to the caretaker of the land, in lieu of payment for his services, rent free accommodation the value of which, if the accommodation had been let on the open market, over that period of 3 years was at least $21,000.00; 3. on behalf of the Respondent, evidence that, as the result of the fall in real estate prices over the period of that 3 years, the then market price of the land was some $13.5 million less than the price which had been earlier offered to the Respondent, and which, but for the injunctions granted in the earlier proceedings it would have accepted. In the Judgment which he delivered on 22 July 1994, Bryson J held that such rights as the Smallbore Association and the Rifle Association had had in respect of the lands the subject of the several "agreements" entered into by them respectively with the Respondent, and the rights which the Rifle Association or the rifle clubs had had to use the rifle range on the land, had come to an end prior to the commencement of the proceedings and that, accordingly, the Respondent was entitled to possession of the lands the subject of the respective "agreements". Put shortly, his Honour's Judgment proceeded along the following lines: 1. in each case, the "agreement" fell into two parts, the first, a grant which delimited the term of the licence; and, the second, which dealt with the terms to which the grant was subject including the terms upon which the licence might be brought to an end before the term, for which it had been granted, would have expired in the normal course; 2. the term for which the licence had been granted was "for such period as the land is used as a rifle range"; 3. "the land" meant the whole of the Respondent's land at Malabar; 4. "used as a rifle range" meant use by the Respondent and its Defence Forces as a rifle range, and not use by any other person; 5. "termination" which was the subject of Condition (a) referred to an act of a party bringing about a premature end of the period of the grant, and thus did not delimit the circumstances in which the licence the subject of the grant could cease to exist. The kernel of his Honour's Judgment is to be found in the following para(AB 1073): "In my opinion both licences come to an end according to their own terms and without any action by the Commonwealth to terminate them when the period for which they are granted ends, that is, at the end of such period as the Anzac Rifle Range is used by the Defence Forces as a rifle range. This result is produced by the terms of the grant, not by Condition (a). Use of the rifle range by the Commonwealth and its Defence Forces came to an end about | June 198S, long before the commencement of the present proceedings. With that event the licences conferred on the plaintiffs by these agreements ceased, and they have been without lawful authority to be there ever since. This is the true ground on which I dispose of these litigations (sic). However in respectful deference of Waddell CJ in Eq (sic), which is a reasonably available view of a difficult document, I will consider the operation of the document on his Honour's view as well as on my own." WAW RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NSW SMALLBORE & AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA (Powell JA) His Honour then proceeded to hold that, assuming that the licences the subject of the respective "agreements" were for an indefinite period and, thus, were terminable by the Respondent upon reasonable notice, upon the evidence which had been tendered before him, a period of 3 years was more than ample to enable the Smallbore Association to wind-up its activities on the land and to re-establish its activities elsewhere and that the same period was more than ample to enable the Rifle Association to bring its occupation of the land and its use of the rifle range to an orderly conclusion and to wind-up its activities there. Finally, Bryson J turned to consider the claims which had been raised during the course of the hearing on behalf of both the Rifle Association and the Smallbore Association for compensation for the improvements which each Association had erected upon the lands the subject of the agreement to which it was a party, in each case holding that there was nothing unconscionable in the Respondent seeking to rely upon the terms of the grant of the licence and the conditions set out in the relevant "agreement", and that, accordingly, neither the Rifle Association nor the Smallbore Association had made out a claim for compensation, either, as a condition of the grant to the Respondent of the relief sought in its Cross-Claim, or, generally. Accordingly, in each proceeding, his Honour made the following Orders: 1. On the Plaintiff's claim that there be Judgment for the Defendant with costs. 2. On the Cross-Claim a. Judgment for the Cross-Claimant for possession of the land known as Anzac Rifle Range; b. Order that the Cross-Defendant pay to the Cross-Claimant mesne profits for the period from and including 26 August 1993 until the delivery up of possession; and further order that an inquiry be held to assess and certify the amount of mesne profits and that Judgment be entered in accordance with the certificate; c. Liberty to apply with respect to leave to issue a Writ of Possession with respect to the conduct of the inquiry; d. Order that the Cross-Defendant pay the Cross-Claimant's costs of the Cross-Claim. It was from his Honour's Judgment, and in respect of the Orders which he then made, that these appeals were brought, albeit that, although the original hearing appears to have been expedited, the appeals were not brought on for hearing until the better part of 3 years after his Honour had delivered Judgment. When the appeals were called on for hearing, Mr R J Ellicott QC appeared with Mr R J H Darke for the Appellants, while Mr J J J Garnsey QC appeared with Mr GL Raffell for the Respondent. As the commencement of the hearing of the appeal, Mr Ellicott moved the Court, in pursuance of a Notice of Motion which had earlier been filed in that behalf, for leave to tender fresh evidence on the hearing of the appeal, that evidence being to the effect that, of comparatively recent times, elements of 3 Bn RAR had sought to use, or in fact had used, one or other of the ranges on Area A or Area B for the purposes of target shooting, the object sought to be obtained by the tender of that evidence being to found a submission that the Defences Forces or, at least, the Australian Regular Army, had a continuing interest in the use of the land for training purposes. However, for the reasons which were then given, leave to tender that evidence was rejected. 16 UNREPORTED JUDGMENTS Although, in the respects to which I shall shortly refer, the submissions advanced on behalf of the Smallbore Association differed from those advanced on behalf of the Rifle Association, for the most part the submissions advanced on behalf of each Association were identical. Although, at times, I found the principal submissions advanced on behalf the Rifle Association and the Smallbore Association somewhat difficult to follow, it seemed to me that, reduced to their essential elements, those submissions proceeded along the following lines: 1. each of the "agreements" was contractual in nature; 2. as neither of the "agreements" provided that the rights conferred on the relevant Association were to exist only for a defined period, it followed that those rights were intended to continue for an indefinite period; 3. since Condition (a) in each "agreement" provided that the rights might be terminated only in the events specified, it followed that the rights conferred on each Association by the relevant "agreement" were not terminable in any other way and, in particular, were not terminable merely upon the giving of what might otherwise be regarded as reasonable notice; 4. the rights conferred on each Association by the relevant "agreement" to occupy the land the subject of the permissive occupancy and the right to use the "range proper" are coterminous; 5. in the light of those matters, the phrases "used as a rifle range" and "no longer used as rifle range" where appearing in the "grant" of the permissive occupancy and in Condition (a) ought not to be construed - as Bryson J had construed them - as limited to use by the Defence Forces but should be construed as extending to use by persons and bodies other than the Defence Forces and in particular by the relevant Associations and the members of the rifle clubs; 6. if this be so, then it could not be held that the Anzac Rifle Range ceased to be used as a rifle range unless, and until, all parties who had a right to use it as such ceased to do so; 7. as the evidence which had been tendered before Bryson J demonstrated that the members of the rifle clubs had continued to use either "the range proper" or the smallbore range on the land the subject of the Smallbore "agreement" as a rifle range it could not be said that the Respondent's lands were not being used as a rifle range; 8. by attempting to withdraw from the Associations the right for members of the clubs to use the range proper, the Respondent was attempting to derogate from the rights conferred on each Association by the relevant "agreements"; 9. that attempted derogation constituted a breach of an implied promise on behalf of the Respondent not to terminate the rights conferred upon the Associations by the relevant "agreement" other than in the circumstances set out in Condition (a) and the Respondent should have been restrained from attempting so to do; 10. even if, contrary to what was earlier submitted, it be held that it was open to the Respondent to terminate the rights of the Associations upon given reasonable notice, in determining whether or not any notice which was given was reasonable, it was necessary to have regard, not merely to the time which would be required in order to enable each Association to re-establish its operations upon an alternative site, but also to the financial capacity of each Association to do so; WARW RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NSW SMALLBORE & AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA (Powell JA) 11. as the evidence made it clear that neither Association would be able to re-establish its operations upon an alternative site in the absence of monetary assistance provided by the Respondent, the notice which had in fact been given by the Respondent was not reasonable in the circumstances. The additional submissions which were advanced on behalf of the Smallbore Association were to the following effect: 1. in the Smallbore Association "agreement" the references to "the land" and "land" are references solely to "the Commonwealth land shown edged blue"; 2. this being so, in the absence of mobilisation or an emergency, the permissive occupancy would come to an end only if the land occupied and used by the Smallbore Association was no longer used as a rifle range; 3. the evidence which was tendered on the hearing before Bryson J demonstrated that that land was still being used as a rifle range by the Smallbore Association; 4. any attempt on the part of the Respondent to direct the Smallbore Association to cease to use the land for that purpose would involve a derogation from the "grant" and thus should have been restrained; 5. even if it were open to the Respondent to bring the permissive occupancy to an end by directing the Smallbore Association to cease to use the land as a rifle range, it would be unconscionable in the circumstances for the Respondent to insist upon the exercise of its right so to do; 6. this being so, the Respondent ought not to be permitted to exercise that right in the absence of providing to the Smallbore Association compensation for the lost value of the improvements which it had erected on the land. As I have earlier observed, the "agreements" upon which the Appellants seek to rely can hardly be regarded as shining examples of the craftsman's art. That fact, as it appears to me, has a considerable bearing upon the approach to be adopted to the construction of those "agreements" and, in particular, to the opening words of the "agreements" and to Condition (a). While, if it be proper to say that the words of a particular provision or of particular provisions in a written instrument are plain and unambiguous, the Court is not authorised to depart from the intention thus revealed, nonetheless, where there is revealed such sloppy craftsmanship and confusion of thought as is reflected in the two agreements, the Court's task, so it seems to me, is, first, to seek to discern the real intentions of the parties, and, then, so to construe the agreement as, if it be possible, to make a consonant whole giving effect to the intention thus discerned. That this is a legitimate approach is suggested by the following passage in the Judgment of Leach VC in Hume v Rundell!: "In the construction of all instruments it is the duty of the Court not to confine itself to the force of a particular expression, but to collect the intention from the whole instrument taken together. But a Court is not authorised to deviate from the force of a particular expression, unless it finds, in other parts of the instrument, expressions which manifest that the author could not have the intention which the literal force of a particular expression would impute to him. However capricious may be the intention which is clearly and unequivocally expressed, every Court is bound by it, unless it be plainly contradicted by other parts of the instrument." To the like effect is the following passage in the Judgment of Lord Cottenham LC in Lloyd v Lloyd?: 1. (1824) 2 Sim & St 174, 177; 57 ER 311, 312 2. (1837)2 My & Cr 192, 202; 40 ER 613, 617 18 UNREPORTED JUDGMENTS "Tf the provisions are clearly expressed and there is nothing to enable the Court to put upon them a construction different from that which the words import, no doubt the words must prevail; but if the provisions and expressions be contradictory, and if there be grounds appearing on the face of the instrument, affording proof of the real intention of the parties, then that intention will prevail against the obvious and ordinary meaning of the words. If the parties have themselves furnished a key to the meaning of the words used, it is not material by what expression they convey their intention." By way of supplement to the approach to which I have just described one adds that where, as is the case with these Agreements, the language of an instrument is ambiguous or susceptible of more than one meaning, it is legitimate to have regard to the circumstances which have given rise to the instrument in question. Thus, as Mason J (as he then was) put it in Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales3: "The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning But it is not admissible to contradict the language of the contract when it has a plain meaning Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merge in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, although admissible in an action for rectification. Consequently when the issue is which of the two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except insofar as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and with the parties' presumed intention in this setting We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract. There may perhaps be one situation in which evidence of the actual intention of the parties should be allowed to prevail over their presumed intention. If it transpires that the parties have refused to include in the contract a provision which would give effect to the presumed intention of persons in their position it may be proper to receive evidence of that refusal. After all, the court is interpreting the contract which the parties have made and in that exercise the 3. (1981-1982) 149 CLR 337,352; 41 ALR 367,374-375 WAW RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NSW SMALLBORE & AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA (Powell JA) court takes into account what reasonable men in that situation would have intended to convey by the words chosen. But is it right to carry that exercise to the point of placing on the words of the contract a meaning which the parties have united in rejecting? It is possible that evidence mutual intention is a mounting to concurrence, is receivable so as to negative an inference sought to be drawn from surrounding circumstances: see Heimann (38 SR (NSW) at 695)." (I proceed on the basis of the principles to which I have just referred, not because I consider that the arrangements the subject of each of the "agreements" were contractual in nature - on the contrary it seems to me that, as any "advantage" as the Respondent may have been supposed to receive pursuant to the "agreement" was purely illusory, neither "agreement" was contractual in nature - but because it seems to me that it would matter not even if the "agreements" were contractual in nature.) It should be noted that, prior to either of the Rifle Association or the Smallbore Association having moved to occupy, or to construct any improvements upon, any part of the Respondent's land at Malabar: 1. each of the Associations - or its constituent clubs - had occupied land and/or used facilities owned by the Respondent elsewhere, which land was, or which facilities were, associated with and/or used by the Commonwealth for the purposes of conducting a rifle range for some, or all, of its Defence Forces; 2. in each case that occupation and/or use appears to have been without fee; 3. in each case, that occupation and/or use appears not to have been subject to any formal agreement; and 4. in each case, that occupation and/or use appears not to have been for any defined term but to have been solely at the will of the Respondent; 5. each of the Rifle Association and the Smallbore Association appears to have accepted that the Respondent was entitled to terminate the occupation of the land and/or the use of the facilities in question and to require the Associations to vacate the land and/or to cease to use the facilities as and when it suited the Respondent and without reference to either of the Associations; 6. the land at Malabar was established for use and was used by the Defences Forces as a rifle range; by virtue of the provisions of the Australian Rifle Club Regulations the land at Malabar was available for use by rifle clubs in the area albeit subject to the provisions of reg55 of the Regulations, that use being available only during such time as the land at Malabar was used by any part of the defence forces as a rifle range; To these facts should be added: 7. expanding the facilities, as was done when the Rifle Association commenced to use the land at Malabar, for the benefit of the members of the rifle clubs required the expenditure of substantial funds to which neither the Rifle Association or its constituent clubs was, or were - except in relation of the construction of buildings on the land the subject of the licence agreement - to be required to contribute; 8. the cost of maintaining the lands at Malabar as a rifle range, to which costs - except in respect of services to be supplied by public bodies or public utilities to the lands intended to be occupied by either Association or its constituent clubs - neither Association was to be required to contribute, were substantial. 9. having regard to the "danger zones" associated with each of the classification ranges on Area A and Area B (see p8 (above)) which "danger zones" require to be observed when shooting is in progress, the continued use of 20 UNREPORTED JUDGMENTS those ranges for shooting, even if that use is not by the Defence Forces, effectively prevents the use of the whole of the Respondent's land at Malabar for any other purpose. Given the various matters to which I have just referred, it seems to me that the "agreements" entered into between, on the one hand, the Respondent, and, on the other, the Rifle Association and the Smallbore Association, did no more than recognise an "arrangement" between, in either case, the Respondent and the Rifle Association or the Smallbore Association pursuant to which, during such time as the Respondent maintained the land at Malabar as a rifle range for use by the Defence Forces, the Respondent was prepared to permit the Associations to occupy portion of that land and/or to use one or other of the classification ranges on that land for its, and their, purposes, that right to occupy and/or use to be capable of suspension or termination, even though the lands still were retained and/or used for the purposes of the Defence Forces, only in the event of mobilisation of the Defence Forces or other like emergency. If this be, as I believe to have been, the intention in each case of the Respondent and the relevant Association, then, as it seems to me, the introductory portion of each of the "agreements" is to be construed as marking out, or recording the extent of, the term the subject of the "arrangement" between the Respondent and the relevant Association and Condition (a) is to be regarded as recording the circumstances in which that term might be prematurely terminated by the Respondent. Further, if this be, as I believe it to have been, the intention of the Respondent and the relevant Associations, it was open to the Respondent - subject only, perhaps to giving to each of the Associations, reasonable notice of its intention so to do - to terminate the use by the Defence Forces of the land as a rifle range and, by so doing, to bring to an end the term of the permissible occupancy. Finally, it seems to me that if, as I believe it to have been, this was the intention of the parties to the "agreements", there was no room for an implication into either of the "agreements" of an obligation on the part of the Respondent to provide to Associations or either of them, compensation for the loss of the value of any improvements which either of them may have erected upon the lands the subject of the permissive occupancies in the event of the term coming to an end according to its terms, and that it was not, and is not, unconscionable for the Respondent to exercise such rights as it might have in respect of either "agreement" in the event of that occurring. In my opinion, the appeals in each case should be dismissed with costs. Beazley JA I have read in draft the reasons for judgment of Powell JA and Stein JA. As is apparent from both judgments, the result in this case is clear regardless of whether the respective "agreements" between the appellants and the respondent were contractual in nature and regardless of their proper construction. I prefer the view that the "agreements" did not constitute a contract and the consequences which flow from that finding are expressed by Powell JA. It is likely on this view that Condition (a) operated according to its terms and did not impart a requirement of reasonable notice. Whatever be the position in that regard, there can be no doubt that a period of 3 years notice was adequate. I agree with Stein JA that there is no obligation on the Commonwealth to reimburse the appellants for the improvements they have made to the land or to provide them with an alternative site. I also agree with Stein JA in respect of the other issues raised on the appeal. It follows that the appeals should be dismissed with costs. WRB RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NSW SMALLBORE & AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA (Stein JA) Stein JA INTRODUCTION The appellants, the New South Wales Rifle Association Inc (NSWRA) and the New South Wales Smallbore & Air Rifle Association Inc (NSWSBA) appeal against the judgment and orders of Bryson J given in the Equity Division on 22 July 1994. His Honour had dismissed the appellant/plaintiffs' claims for relief and found for the Commonwealth on its Cross-Claim for possession of land known as the Anzac Rifle Range, Malabar. The facts found by Bryson J are not in dispute on the appeal. They are to be found in his Honour's detailed judgment and it will suffice if I summarise the essential facts. Each of the appellants entered into a written agreement with the Commonwealth for the occupation of part of the land at the Anzac Rifle Range. The agreements were made in 1972 (NSWRA) and 1980 (NSWSBA) respectively. The licence areas for each licence to occupy land are delineated with blue edging on copies of Plan CEN 2096, which was annexed to the agreements. In 1988, after many years of occupation, the Commonwealth purported to terminate the licences. In proceedings in the court before Waddell CJ in Eq the NSWRA challenged the termination. On 26 April 1990 his Honour held that the notice of termination did not allow sufficient time. Waddell J opined that 3 years' notice should have been given. Accordingly, declarations were made that the Commonwealth had not validly terminated the NSWRA's right to use the Rifle Range and to occupy the land edged blue on Plan CEN 2096 pursuant to the agreement dated 17 October 1972. Thereafter, the Commonwealth gave each appellant a written notice of termination dated 20 August 1990 to take effect on 25 August 1993. The appellants then commenced the subject proceedings in Equity to challenge the Commonwealth's purported terminations. It is unnecessary to detail the lengthy history of each of the appellants (eg the NSWRA traces its existence back to 1860) except to say that the Commonwealth has had a long and intimate association with both clubs since 1903. Although membership of the clubs is voluntary and they have an existence separate from the Commonwealth, they owe their existence to Commonwealth legislative power and their activities are, to a certain extent, under the control of the Commonwealth. In particular, they need to have access to rifle ranges to carry out their functions and activities. Rifle ranges are often on land owned by the Commonwealth, as is the subject Anzac Rifle Range. The clubs also need land close to rifle ranges to carry out their activities. I agree with the observation of Bryson J that the existence and activities of the clubs is essentially ancillary to the defence activities of the Commonwealth, see in particular s123G of the Defence Act 1903 (Cth) and the Australian Rifle Clubs Regulations made thereunder. The issues arising on the appeal revolve around the two written agreements which are in virtually identical form, save for the parties. The NSWRA agreement was made in 1972 although the association had already commenced to occupy the land in February 1968 (acknowledged in the agreement) and, with the respondent's acquiescence and assistance, constructed a number of buildings thereon. The NSWSBA agreement was made on 2 March 1980 and, although they had been in occupation from 1973 and erected structures, the licence commenced on the date of the agreement. One other factual distinction between 22 UNREPORTED JUDGMENTS the agreements is that the NSWRA (or its members) use the Anzac Rifle Range for shooting, whereas the NSWSBA members only their licenced area, on which they have constructed a range. Bryson J found that the reference in the grant of the licence to 'land is used as a rifle range' and in the condition for termination in cl(a), 'land being no longer used as a rifle range', meant use by the Commonwealth and its defence forces as a rifle range and not to use by any other person. According to his Honour's finding, the use by rifle clubs was subsidiary to use by the defence forces for the Commonwealth's purposes. The use of the rifle range by the Commonwealth and its defence forces came to an end on about 1 June 1988. This finding is not disputed in the notice of grounds of appeal. Bryson J found that both licences came to an end 'according to their own terms and without any action by the Commonwealth to terminate them' when the use of the range by the defence forces ceased. Therefore, it was unnecessary to look for a termination under condition (a). His Honour described this as 'the true ground' upon which he determined the litigation. Nonetheless Bryson J examined the alternative argument which required consideration of the extrinsic material because of the construction which Waddell J placed on the agreement in the prior proceedings. Bryson J acknowledged that it was 'a difficult document' but rejected submissions by the clubs that the agreements created rights higher than mere licences (ie a lease, fee simple or permanent or perpetual licences). There was no indication that possession was to be perpetual or exclusive of the Commonwealth. The agreement was a permissive occupancy and granted no more than a licence. The use of the club facilities in the blue edged areas (of the NSWRA) was ancillary to the use of the Range proper, not the converse. His Honour relied in part for his conclusion on the Regulations made the Defence Act. THE AGREEMENTS AND THEIR CONSTRUCTION Although the agreements (the NSWRA document is annexed) are, as Powell JA observes, poorly drafted, they do not in my opinion present formidable obstacles to construction. A reasonable construction is available which avoids uncertainty and makes sense. To start with, it is plain that the Plan CEN 2096 was attached to each document and forms part of the agreement. Copies of the Plan attached to the respective agreements show the blue edged areas occupied by that appellant. The Plan also shows the balance of the Commonwealth land containing the Anzac Rifle Range, sometimes referred to as the 'Range proper'. The agreements distinguish between the club areas and the balance of the land, including the rifle range. On occasions this is by express reference. Sometimes it is obvious by implication to which area it relates. The title to each agreement provides a clue, but only a clue, as to its nature. Each is headed "Malabar:Occupation of Army Land by...'. The agreement is divided into two parts, the grant (the first 6 lines) and 'conditions' (a) to (n) which follow. The document starts off in clear enough language with the NSWRA acknowledging its occupation of the respondent's land edged blue on the attached plan. The first difficulty of construction is in the words which follow - 'for such period as the land is used as a rifle range'. The agreement continues that no fee or rental is to be charged for 'such occupancy'. It is apparent that the reference to 'such occupancy' in this phrase is to the blue edged land only. It is also obvious that the land edged blue and the land used as a rifle range do not coincide. The reference to 'the land' in the context of the URW RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NSW SMALLBORE & AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA (Stein JA) document read as a whole (including the plan), is a reference to the whole of the land. That is, a reference to the blue edged areas and the balance of the Commonwealth land containing the Anzac Rifle Range. This conclusion is reached on an examination of the ordinary meaning of the words used in the phrase and the whole of the agreement, including the Plan. I do not understand Mr Ellicott QC for the appellants to submit otherwise, in particular regarding the NSWRA agreement. He does, of course, dispute the construction of Bryson J that the phrase means use of the rifle range by the Commonwealth. I will return to this aspect later. Condition (a) provides for termination of the 'permissive occupancy'. It specifies as follows: The permissive occupancy to be terminated only in the event of mobilization, an emergency proclaimed by either the State or Commonwealth, land being no longer used as a rifle range or if the NSW Rifle Association desires to vacate the area. NOTE: The emergency referred to above could be described as a situation short of general mobilization which would necessitate the resumption for military purposes of the land and/or buildings occupied by the NSW Rifle Association. The clause provides four separate circumstances for termination - mobilization, emergency, vacation by the licensee or 'land being no longer used as a rifle range'. As mentioned earlier, this is merely the converse of the words used in the grant itself. Common sense dictates that the phrase contained in condition (a) should be construed in the same fashion. That is, it refers to the whole of the land in the Plan, including the Anzac Rifle Range. I turn to the remaining conditions. Condition (b) provides that the NSWRA (and NSWSBA) is not to 'sub-lease' without approval. This is clearly a reference to the land edged blue. Condition (c) provides that no compensation is to be paid to the associations if their 'buildings are occupied in any such emergency'. This is clearly a reference to the buildings of the appellants which stand within the land edged blue in each case. Again, the reference to 'any improvement on the land' in (d) is a reference to the land edged blue in each agreement, as are conditions (e), (f), (g), (i) and (k). Conditions (h), (j) and (m) specifically refer to the 'permissive occupancy area'. This is a reference to the land edge blue. In addition, condition (h) specifically refers to both the permissive occupancy area and 'the Range proper', the latter quite obviously referring to the Rifle Range outside the blue edged areas. By contrast condition (1) refers to 'the use of the land' which imports the broader concept of the land not confined to the land edged blue on the Plan. This is consistent with the privilege or liberty of the NSWRA to use the Range proper as an incident of its occupancy of the land edged blue. These constructions are perfectly natural ones open on the ordinary meaning of the words utilised. Such construction resolves any ambiguity or uncertainty in the use of the terms 'the land', 'the area' or the 'permissive occupancy area'. Thus construed the document, read as a whole, (and each of its conditions) makes reasonable sense. On the other hand, to construe 'the land no longer being used as a rifle range' as something less than the whole of the land, only serves to raise ambiguities and inconsistencies. In passing, I should note a submission made by Mr Ellicott that the phrase 'land no longer being used as a rifle range' is to be given a different meaning between the two agreements. In the NSWRA agreement he submits that it means the whole of the land, including the Rifle Range, whereas in the NSWSBA 24 UNREPORTED JUDGMENTS agreement, it means the land edged blue. This construction is claimed to be required because of the different factual situation of the NSWSBA not using the Range proper but confining its activities to its own licenced area. For my PtI see no justification for construing the identical phrase in any different fashion between the agreements. Indeed, apart from the factual distinction between the appellants' use of the Rifle Range proper, no reason is advanced. It would be extraordinary if the same words were to be given a different meaning between the two agreements. The next question is whether the phrase 'land being no longer used as a rifle range' in condition (a) and the words in lines 3 and 4 of the grant, mean use by the Commonwealth or by anyone else, eg the appellants. The starting point for consideration is the grant itself. On its face it is a grant of a permissive occupancy of the land edged blue on the Plan 'for such period as the land is used as a rifle range'. Until June 1988 the land (being the whole of the Commonwealth land including the Rifle Range) was used by the defence forces of the Commonwealth. After June 1988 the Commonwealth ceased to use the land for its defence purposes. Once this occurred, it is my opinion that it was open to the Commonwealth to terminate the agreement if it desired. Viewed in this fashion the phrase in question speaks of a use of the rifle range by the Commonwealth. There is no doubt that the Commonwealth was the primary user of the Rifle Range for its defence purposes. It is common ground that the appellant NSWRA had the incidental right to use the Range proper subject to the terms of the agreement. It would be incongruous if the NSWRA was able to continue to use the Range and to rely on this as 'use of the rifle range' so as to deny the Commonwealth the opportunity to terminate the use after the Commonwealth ceased its use, and advised the club that its use had ceased. The result urged by the appellants is even stranger because it must be accompanied by a finding that the licence is granted in perpetuity at the licensee's discretion (save mobilisation or emergency). In my opinion, this is not open on any reasonable construction of the document read as a whole. It cannot reasonably be interpreted as a licence granted in perpetuity or a virtually irrevocable licence. This construction would fly in the face of common sense and, for all practical purposes, render the land sterile and permanently inalienable. On this issue the trial judge said: In my view this is clear from the legal context including reg55, and also from the circumstances in which the whole land then was a rifle range used for the Defence Forces, and use by rifle clubs was subsidiary to use by the Defence Forces and to Defence purposes generally. The whole structure of the events was that the Commonwealth had a rifle range for its Defence Forces to use and incidentally made the rifle range available for NSWRA to use, it could not have been intended that a club could require the rifle range to go on being used as a rifle range even if the Defence Forces no longer used it, and a construction which had that effect would verge on the absurd. (at 22) I agree with his Honour although I do not see it as necessary to rest any conclusion on reg55. The Regulations provide a backdrop to the agreements but it seems to me that the conclusion to which I have referred is inevitable without reference to reg55. As Bryson J observed, if the phrase in condition (a) was to be seen as a reference to the land no longer being used as a rifle range by any person or by the NSWRA, it would hardly have been necessary to say that the NSWRA had to vacate if it ceased using the Range and decided to leave the area. WRB RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NSW SMALLBORE & AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA (Stein JA) In my view, there is no ambiguity in the construction of the agreements for the reasons I have already canvassed. In this circumstance, no situation arises to consider the extraneous evidence. If, however, there is an ambiguity which leads to the need to examine the extraneous circumstances, such an examination clearly leads me to accept the trial judge's conclusion. In this respect it must be noted that the findings of fact by Bryson J are not challenged. I accept that much of the extraneous evidence is more consistent with and supports his Honour's decision as to the true construction of the agreements, than the construction contended for the appellants. This being so, it is unnecessary to consider the respondent's notice of contention that the documents lack any contractual intent and consideration. Although Bryson J had reservations about the document being a contract, given the absence of any obvious consideration, he concluded: As the agreements deal with the manner in which the grant is to be terminated, and appear to deal with that matter as with other matters on a basis of a contractual relationship supported by consideration in the form of promises or undertakings proceeding from both sides, I am of the view that a contractual character should be attributed to the whole arrangement including the initial licence... In the circumstances of my primary finding I am content to deal with the matter on the basis that his Honour did, namely on the assumption as to the contractual nature of the documents. As I have already observed the trial judge concluded that once the Commonwealth ceased to use the land as a rifle range for its defence forces, then the licence was at an end. There was, in his view, no need for the Commonwealth to determine the agreements when the period for which the licences were granted had come to an end. Although the matter is by no means free of doubt, I am inclined not to agree with his Honour's conclusion. It seems to me that once the Commonwealth use of the rifle range had ceased, condition (a) could be activated by the Commonwealth by its termination of the agreements. The event itself did not determine the agreement. Rather the event gave the Commonwealth the right to terminate under condition (a) if it desired to do so. For example, the Commonwealth may well have desired to wait the happening of certain shoots or other events before terminating. This conclusion is strengthened by the inclusion of the words 'land being no longer used as a rifle range' within condition (a) dealing with the circumstances in which the agreement could be terminated. Were it not for the issue of what is reasonable notice of termination, the question would of course be academic. REASONABLENESS OF NOTICE As mentioned earlier, the notice given by the Commonwealth was 3 years in each case. Bryson J held that this was more than reasonable. Ground 6 in the notice of appeal disputes this finding. However, from the submissions made before us it appears that it is not the 3 year period which is disputed but the absence of an offer of monetary and other assistance to re-establish operations elsewhere. To my thinking, the reasonableness of the notice need only be tied to time and 3 years is adequate. There is nothing in the agreements, nor in the surrounding circumstances, which lead to the requirement to combine monetary or other assistance to relocate with the temporal element of the notice to terminate. I agree with the trial judge's observation that there is no warrant for the submission of the NSWRA that it has no obligation to leave unless and until 26 UNREPORTED JUDGMENTS it has been paid for its improvements at Malabar or is provided with an alternative site and the costs of removal. COMPENSATION Although the grounds of appeal do not include a claim for compensation for the loss of the licence to occupy or loss of improvements, Mr Ellicott submits that his Honour was in error in so finding. In my opinion no such error is apparent. The terms of the agreements do not support any claim for compensation. Moreover, I fail to see how the permissive occupancy granted by the Commonwealth is an 'interest' in land under the Lands Acquisition Act 1989 (Cth), see the definition in s6. In any event, this is no acquisition by the Commonwealth, merely the determination of a licence to occupy. Although the definition of 'interest in land' in the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) is a little different, there is support in Hornsby Council v Roads & Traffic Authority (Court of Appeal, unreported, 19 March 1997) for the need to show that a licence is coupled with an 'interest' in order to qualify. In my opinion, any rights of the appellants to compensation is governed by the agreements. UNJUST ENRICHMENT AND UNCONSCIONABILITY Again, it is unclear as to whether there is any challenge to the findings on unjust enrichment by the respondent, although ground 7 in the NSWSBA appeal appears to be directed to unconscionable conduct. I share the trial judge's view that there is no basis in the evidence to conclude that it was unconscionable for the Commonwealth to rely upon the terms of the agreement. I can find no basis in the evidence upon which the appellants would be entitled to equitable relief. There is just no room for the conclusion that it was unconscionable for the Commonwealth to rely on its ownership of the land. Indeed, there is not a skerick of evidence of unconscionable conduct or unjust enrichment by the respondent. IS THERE A LEASE? It appears to be suggested by the appellants that the agreements were not mere licences to occupy land but leases. The submission is that the appellants were granted exclusive occupation. Reliance is placed on some of the provisions of the agreements, in particular the reference in condition (b) to 'sub-lease' and the references to 'rent'. I reject the submission. There is no occasion to interpret the agreements as conferring a lease. They contain none of the indicia of a lease but are couched in language granting no more than a licence to occupy land or a permissive occupancy of land terminable in certain given circumstances. It may be noted that the negotiations preceding the agreement rejected the lease option. The agreements do not confer exclusive possession and the repeated references to licence and permissive occupancy in the documents are inconsistent with a lease or any arrangement conferring exclusive or perpetual occupation or possession. ESTOPPEL The question of whether the appellant (NSWRA) is estopped from making certain submissions because of the findings of Waddell J was raised during the course of the appeal. Bryson J found it unnecessary to deal with the contention. In the circumstances of my conclusion as to the construction of the agreements, neither do I. This is especially so when the NSWSBA was not a party to the litigation before Waddell J. WR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA; NS2W SMALLBORE & AIR RIFLE ASSOCIATION INC v COMMONWEALTH OF AUSTRALIA (Stein JA) I would dismiss both appeals with costs. ANNEXURE MALABAR: OCCUPATION OF ARMY LAND BY THE NSW RIFLE ASSOCIATION The New South Wales Rifle Association hereby acknowledges occupation of the Commonwealth land shown edged blue on the attached Plan CEN 2096 at Malabar as from 12th February, 1968, for such period as the land is used as a rifle range and for which the Commonwealth agrees that there will be no fee or rental charged for such occupancy, but this agreement will be used to the following conditions: a. The permissive occupancy to be terminated only in the event of mobilization, an emergency proclaimed by either the State or Commonwealth, land being no longer used as a rifle range or if the NSW Rifle Association desires to vacate the area. NOTE: The emergency referred to above could be described as a situation short of general mobilization which would necessitate the resumption for military purposes of the land and/or buildings occupied by the NSW Rifle Association. b. The NSW Rifle Association is not to sub-lease without the prior approval of Headquarters Eastern Command. c. No compensation or rent to be payable to the NSW Rifle Association if its buildings are occupied in any such emergency except for such amount as may be required to restore the buildings to their condition at the time of take-over unless otherwise agreed by the NSW Rifle Association. NOTE: The emergency referred to above could be described as a situation short of general mobilization which would necessitate the resumption for military purposes of the land or buildings occupied by the NSW Rifle Association. d. The Commonwealth to have first option to purchase any improvements on the land which may become surplus to requirements or in the event of the NSW Rifle Association being disbanded. NOTE: Commonwealth's intention to purchase will be notified as soon as practicable and the price will be determined be agreement. e. The NSW Rifle Association to be permitted to arrange the sale demolition and removal of any Association Asset which may become unserviceable due to construction faults. f. The NSW Rifle Association to be responsible for the restoration or demolition of any building which may become unserviceable due to constructional faults. g. No external alterations or additions to be carried out to buildings without the prior approval of Headquarters Eastern Command. h. No additional buildings to be erected within the permissive occupancy area or on the Range proper without the approval of Headquarters Eastern Command. i. The NSW Rifle Association to be responsible for the payment of all service charges and supply and installation of meters where applicable. j. The NSW Rifle Association to be responsible for the repair, painting and maintenance of its buildings, roads assets and internal service mains within the permissive occupancy area. k. The buildings and site to be maintained in a clean and tidy condition. 1. The NSW Rifle Association to comply with any instruction issued by Headquarters Eastern Command concerning the use of the land not inconsistent with these conditions. 28 UNREPORTED JUDGMENTS m The NSW Rifle Association to be the sole authority for control and allocation of accommodation situated within the permissive occupancy area. n. The NSW Rifle Association to indemnify the Commonwealth from and against all actions, suits, claims, demands of whatever nature and all costs, damages or charges and expenses which may be brought against the Commonwealth or which may occur in respect of any damage which may arise during the continuance of the permissive occupancy unless the damage shall occur by reason of any act, neglect or default of the Commonwealth or any of its officers or servants. Both appeals dismissed with costs. Counsel for the appellants: R J Ellicott QC and R J H Darke Solicitors for the appellants: Hunt and Hunt Counsel for the respondents: J J Garnsey QC and GL Raffell Solicitors for the respondents: Australian Government Solicitor