CITATION: Red Roll Pty Ltd v Multiplex Latitude Retail Landowner Pty Ltd, Multiplex WS Retail Landowner Pty Ltd and AWPF Management Pty Ltd [2008] NSWADT 200 DIVISION: Retail Leases Division APPLICANT Red Roll Pty Limited FIRST RESPONDENT Multiplex Latitude Retail Landowner Pty Limited PARTIES: SECOND RESPONDENT Multiplex WS Retail Landowner Pty Limited THIRD RESPONDENT AWPF Management Pty Limited FILE NUMBER: 075236 HEARING DATES: 23 May 2008 6 June 2008 SUBMISSIONS CLOSED: 6 June 2008 DATE OF DECISION: 21 July 2008 BEFORE: Molloy GB - Judicial Member MATTER FOR DECISION: Preliminary Matter LEGISLATION CITED : Retail Leases Act 1994 Real Property Act 1900 Gibb v. FCT (1966) 118CLR 628 Kindful (Australia) Pty Ltd v. Country Villa Holdings Pty Limited [2006] NSWADT 224 Legal Services Commissioner v. Ball [1999] NSWADT 45 Nam v. Commonwealth Funds Management Ltd [2002] NSWADT 80 CASES CITED: Parkinson v. EK Nominees Pty Limited (1997) NSW ConvR 55-816 Project Blue Sky v. ABA [1998] HCA 28 Spuds Surf Chatswood Pty Ltd v. P T Limited [2007] NSWADT 130 Skiwing Pty Limited v. Trust Company of Australia Limited [2008] HCASL 229 Trust Company of Australia Ltd v. Skiwing Pty Ltd [2006] NSWCA 387 Webb v. Clifton [2008] NSWADT 132 Mr V R W Gray, counsel First Respondent Ms Michler REPRESENTATION: Second Respondent Mr K Andronos Third Respondent Mr G S Hansen, solicitor 1. The Tribunal declines to make any order dismissing from these proceedings the Second and Third Respondents. ORDERS: 2. The Motion by the Second and Third Respondents to dismiss them from these proceedings is itself dismissed. 3. Leave is granted to all parties to apply for a costs order relating to these interlocutory proceedings as they may be advised. Any such application(s) should be raised before me at the next Directions Hearing. 4. Matter listed for further Directions before me at 9.30am on 14 August 2008. REASONS FOR DECISION 1 In late 2004 the Applicant and the First Respondent executed an Agreement for Lease in respect of Premises known as Shop 10.24 ("the Premises") World Square Retail, Sydney ("the Centre"). 2 On or about 9 June 2005 the Applicant took possession of the Premises and commenced to trade therefrom. 3 On or about 26 July 2005 the Applicant and the First Respondent executed a Lease ("the Lease") pursuant to which the First Respondent formally Leased the Premises to the Applicant. 4 On or about 29 or 30 July 2005 the First Respondent assigned the Lease to the Second and Third Respondents and sold the Centre to them. 5 The Second and Third Respondents claim that the Applicant is indebted to them the sum of in excess of $166,758.10 for arrears of rent. On 13 December 2007 the Second and Third Respondents gave notice to the Applicant of their intention to determine the Lease and re-enter the Premises if the asserted arrears of rent were not paid immediately. 6 The Applicant commenced proceedings in this Tribunal by Application for Original Decision and Application for Urgent Interim Order, both filed 19 December 2007. Both of those Applications were formally amended by Amended Applications filed 14 February 2008. Both of those Amended Applications were further formally amended by Further Amended Applications filed 19 March 2008 and, in the circumstances set out below, those Further Amended Applications were further amended by two Third Further Amended Applications filed in Court 6 June 2008. 7 No interim order has been made to date, the Second and Third Respondents properly agreeing to take no steps at present to disturb the occupancy of the Applicant. The Applicant remains in occupation of the Premises and continues to trade therefrom. The Current Proceedings 8 The Second and Third Respondents seek to be dismissed from the proceedings. It is to this preliminary issue that this Judgment is directed. Background to the Application 9 The various Applications filed by the Applicant have asserted false and/or misleading pre-Lease representations made by the First Respondent and/or its agent in breach of Section 10 of the Retail Leases Act 1994 (the Act); unconscionable conduct by the First Respondent and/or the Second and Third Respondents in breach of Section 62B of the Act (as set out below); and the Applicant seeks relief by way of declaration, damages, re-determination of the rent, order that the rent arrears "are not due or owing" and an order for costs. 10 Because this is an interlocutory application all parties have properly agreed that there is no requirement on the Tribunal to make any findings of fact but rather the Tribunal can proceed on the motion by the Second and Third Respondents to strike out the proceedings as they effect them in reliance upon the assertions made in the various filed Applications and two or three pages in a filed affidavit. This is a proper approach to this type of application – see Spuds Surf Chatswood Pty Ltd v. P T Limited [2007] NSWADT 130 at [6]. 11 The Applicant in its various applications, and more recently its Third Further Amended Applications filed 6 June 2008, has asserted that the First Respondent, itself or through its agents, made certain representations to the Applicant which induced the Applicant to enter into the Lease, which representations were false and/or misleading pre-lease representations in breach of Section 10 of the Act and/or constituted unconscionable conduct in breach of Section 62B. There is no need for the purpose of this Judgment to review or refer further to those alleged representations. No evidence has been filed by any of the Respondents, neither has a Reply been filed, but rather the Second and Third Respondents seek to be dismissed from the proceedings on the basis that whatever representations may have been made (if proven) those representations were made only by the First Respondent and not by the Second and Third Respondents; thus the Second and Third Respondents cannot be held liable and should not be parties to these proceedings. 12 The Third Further Amended Application asserts throughout paragraphs 1-23C that the representations were made by the First Respondent. The Applicant then pleads (paragraphs 24-29) further various assertions relating to the location of the Premises, gross takings, percentage rent and in paragraph 30 asserts that the Applicant has informed the Second and Third Respondents of the various facts pleaded and then, in paragraph 31, pleads that "despite knowing of the facts matters and circumstances referred to in paragraphs 4 to 30 above and the existence of this application" the Second and Third Respondents have: a) Taken no action to put into effect such of the representations … as are within their power to put into effect; b) Taken no action to ascertain the consequences (for the Applicant) of the falsity of the representations referred to …; c) In their dealings (with the Applicant) treated (the Applicant) as if the falsity of the representations … was immaterial to (the Applicant's) ability to perform its obligations under (the Lease) and demanded that (the Applicant) duly perform those obligations; d) Continue to threaten and intend, unless restrained … , to terminate (the Lease) and evict (the Applicant) from the Premises". 13 Paragraph 32 then pleads that in the circumstances pleaded in paragraph 31 the actions of the Second and Third Respondents in taking no action to put into effect the representations; taking no action to ascertain the consequences (for the Applicant) of the falsity of the representations; treating the Applicant as if the falsity of the representations was immaterial to its ability to perform its obligations under the Lease and demanding that the Applicant duly and punctually perform those obligations; rejecting a settlement offer; and threatening to terminate the Lease and evict the Applicant from the Premises; "constitute and will constitute unconscionable conduct within section 62B of (the Act)". 14 The drafting and filing of the Third Further Amended Application arose following discussion at the hearing 23 May 2008. At that hearing I was informed that, as at the then current state of the pleadings, a claim for unconscionable conduct had been made against the Second and Third Respondents. It appeared clear, however, from a careful consideration of the pleadings as they then stood, that no claim for unconscionable conduct had been mounted by the Applicant against the Second and Third Respondents, although it appeared that all parties were proceeding on the basis that it had. Clearly there had been some significant misunderstanding by all parties because it was plain that there had been no assertion of unconscionable conduct against the Second and Third Respondents and even no assertion of unconscionable conduct against the First Respondent – in these circumstances it seemed to me that the argument put before the Tribunal was based upon a deficiency in the pleadings and I granted leave to the Applicant to further amend its pleadings as it may be advised, thus resulting in the Third Further Amended Applications. Further Discussion 15 There is clearly a pleaded argument for breaches of Sections 10 and 62B made out against the First Respondent. On 6 June 2008, having considered paragraphs 31 and 32 of the Third Further Amended Application, I expressed some considerable doubt to counsel for the Applicant on whether the pleadings as so further amended were sufficient to assert unconscionable conduct against the Second and Third Respondents. There are primarily two reasons behind this concern: a) Firstly, there is no pleaded assertion that the conduct of the First Respondent flows through to the Second and Third Respondents as assignees of the First Respondent (although this was the primary basis of oral argument); b) Secondly, the assertions in the new paragraphs 31 and 32 seem to me to post-date the making of the alleged representations – in other words, these assertions seem to stand on their own unaffected by any liability which was asserted from the bar table to flow from the First Respondent to the Second and Third Respondents by assignment. 16 This is an important observation because the primary case for the Applicant seems to be that the Second and Third Respondents are bound as assignees by the conduct of the First Respondent – indeed that is the primary submission of the Applicant and the primary reason why the Second and Third Respondents seek to be dismissed from the proceedings. 17 I was referred to part of the evidence thus far led (and thus far unchallenged) in or to the effect that the centre manager before and after the assignment remained the same person, the critical point of contact between the Applicant and whoever was the owner of the Premises from time to time, such that it was arguable that he was probably the agent of the First Respondent and also the agent of the Second and Third Respondents and be likely to have all the knowledge of the anterior representations made by the First Respondent and thus the Second and Third Respondents could never be taken to have taken title without notice of the pleaded representations. 18 There is no need for me to refer further to the pleadings other than to express the respectful opinion that, should the matter proceed further in this Tribunal, the Applicant may wish to further amend. This is particularly so because paragraph 23D asserts that the First Respondent failed to notify the Second and Third Respondents of the various representations and reliance when contracting to transfer and assign its right title and interest in the Premises and the Centre – a strange assertion having regard to the reliance on the evidence referred to in [17] above. 19 In my opinion, and bearing in mind the way in which the proceedings have been conducted thus far, the pleadings should be further amended to properly articulate the claims made against the Second and Third Respondents, in particular the primary claim that the Second and Third Respondents are bound by the actions of the First Respondent in making the representations and are therefore caught by sections 10 and 62B. In my opinion, and notwithstanding my view of the state of the pleadings, it is plain that there is no prejudice to any party having regard to the way in which the matter was argued, particularly so bearing in mind Order sought No. 5. 20 It is to the primary assertion to which I shall now turn. Submissions of Second and Third Respondents 21 The Second and Third Respondents seek to be dismissed from the proceedings on the primary basis that the various filed Applications "fail to disclose any cause of action comprising a retail tenancy claim" against them. There was a further argument raised that the pleaded unconscionable conduct "put at its highest cannot meet the test of a high level of moral obloquy necessary to comprise unconscionable conduct within the meaning of section 62B". There is no need for me to express an opinion or make any observations relating to that latter submission. The pleaded assertions are not "so plainly hopeless that the (Applicant) should be denied a trial in this issue" – see Tapoohi v. Lewenberg (2) [2003] VSC410 at [86-87] and Spuds Surf at [64]. If the proceedings move forward to a hearing then it is only the Tribunal, specifically constituted to deal with section 62B matters, that can make a determination on that issue. 22 The primary submission is that there is no reasonable cause of action disclosed, on the pleadings and as argued orally, against the Second and Third Respondents. 23 All parties (understandably) relied upon the definitional section 3 and section 10 of the Act. Those sections (so far as is relevant and as argued) I set out below as follows: a) Section 3: "lessor" means the person who grants or proposes to grant the right to occupy a retail shop under a retail shop lease, and includes a sublessor and a lessor's or sublessor's heirs, executors, administrators and assigns. "party" means the lessor or the lessee under a retail shop lease. b) Section 10(1): A party to a retail shop lease is liable to pay another party to the lease ("the injured party") reasonable compensation for damage suffered by the injured party that is attributable to the injured party's entering into the lease as a result of a false or misleading statement or representation made by the party, or any person acting under the party's authority, with knowledge that it was false or misleading. 24 It was submitted that "properly understood the language of section 10 cannot impose a liability on the (Second and Third Respondents) by reason of the very nature of the act which is required in order to found liability". It was submitted that "party" in the terms of section 10 means only a lessor "who proposes to grant the right to occupy a retail shop under a retail shop lease". Section 10, it was submitted, "imposes liability for conduct which predates the entry of the lease". Once the lease has been entered into then "there is no longer a proposal to grant a right but an existing right, (and) the section has no more work to do. …It cannot follow therefore that an assignee of land over which a lease has already been granted can be a party in the sense contemplated section 10. Section 10 requires there to be a proposal to grant a lease. There is no proposal, on the Applicant's own case, made by the (Second and Third Respondents)". 25 It was strongly submitted that there was "plainly no actual authority conferred by the (Second and Third Respondents) on the person alleged by the Applicant to have made the representations." That must be the case because the Second and Third Respondents "did not have and are not alleged to have any interest in the Centre at the time the representations were allegedly made". Furthermore, there was no ostensible authority because firstly, section 10 was "confined to actual authority" and secondly, the Applicant would have to show that the Second and Third Respondents "by their conduct clothed the First Respondent or its agents with the indicia of authority". 26 The representations allegedly made were made by individuals and entities asserted to be on behalf of the First Respondent, the owner of the Premises and the "party who proposed to grant the right to occupy the Premises". Consequently, "once the right was granted, the effect of the representations for the purpose of section 10 was spent". It was submitted that it made "no sense to allege that section 10 applies to subsequent parties to an already extant lease for the purpose of section 10 when the gravamen of section 10 is the inducement to enter a lease". 27 It was strongly put that "liability for misrepresentation does not run with the land. It is a right in personam". It is clear, under Real Property Act Section 42, that an incoming legal right takes clear of any equitable right – this was fundamental and was the basis of indefeasibility of title. The Act does not derogate from the fundamental rights created under the Real Property Act (see [45] below). 28 It was submitted that whatever was the relationship between the First and Second Respondents there was no relationship between the First and Third Respondent, the latter being "a completely independent entity" and "the owner of a one-half share as tenant-in-common of the retail stratum" in the Centre in which the Premises are located. It was submitted that the "Applicant has not adduced any evidence or made any allegation that (the Second and Third Respondents) made any representations to the Applicant prior to the Applicant entering into the Lease, let alone evidence that the (Second and Third Respondents) had knowledge that the representations were false". Consequently, in the absence of any allegation that the Second and Third Respondents engaged in relevant conduct there is in fact no cause of action against them. Applicant's Submissions 29 As with the Second and Third Respondent the Applicant made written and oral submissions. The primary submission was that the Second and Third Respondents are the "assigns" of the First Respondent within the definition of "lessor" in section 3 of the Act. Therefore, it was said, the Second and Third Respondents are "included in the word "lessor" whenever it appears in" the Act. Consequently, the combination of Section 3 and Section 10 results in the conclusion "that an assignee of a party who made a false or misleading statement knowing that it was false or misleading which caused another party to enter into a retail shop lease and thereby sustain damage is itself liable to pay reasonable compensation to that other party for that damage". It was said that this reflected a "clear legislative intention that rights and liabilities of parties to leases will pass with the interest assigned to the assignee so that effective justice can be done as between the current parties to the lease and, as a necessary consequence, that a party to a lease is not left to a chance that an outgoing party to a lease remains in existence and solvent and accessible". The Applicant relied upon the "continuing business relationship between the present parties" to ground the form of relief under Section 72 (to which I shall refer below) and it was submitted that if the Second and Third Respondents are correct then it would follow that "if an outgoing party to a lease has rendered itself liable under section 10 and then assigns its interest and disappears, the damage suffered by the other party will either go unremedied, or be remedied at the expense of the assignee." 30 The original submission of the Applicant 21 May 2008 seemed to accept that the Second and Third Respondents were "personally innocent of the wrongdoing, but … they have to suffer the consequences of section 10 misconduct by the transferor" such that "one innocent party will ultimately bear the loss" and in resolving that problem the Parliament has fashioned the Act such to protect the innocent lessee in circumstances where, as a matter of commercial reality/ contract, any assignee of the person making the false or misleading representation can protect himself from that liability by contract. Tribunal's Reasoning 31 It seems to me that the starting point for a consideration of this thorny issue is the Second Reading Speech of the Minister for Small Business in the Parliament on 20 April 1994. There is no need to recite this speech other than to make reference to a number of what I regard as important observations. 32 The Minister opened his speech by saying this: "In an ideal world this bill would not be necessary. In an ideal world parties to a retail leasing agreement would be fully aware of their own and the other party's commitments and obligations before they entered into such a lease agreement. …. The truth of the matter, however, is that retail tenancies are often a matter of contention, and have been for a long time. All honourable members would have received representations on such matters – many of them quite distressing given that they are matters that have a fundamental effect on the ability of people to get on with their business and earn a living. The bill I have introduced today is intended to foster good leasing practices in the retail industry, nothing more and nothing less. … It seeks to ensure that retail leasing agreements are explicit as to the requirements of both parties and that they are entered into from a position of reasonably equal negotiating strength." 33 The Minister went on to refer to various important aspects of the bill relating to (and in particular) "full disclosure", referred to "bad leasing behaviour", and then said: "The Government merely seeks to set the ground rules, and leave people to go about their business with a minimum of fuss". 34 The purpose of referring to the Second Reading Speech is in support of the proposition that the Act itself was remedial legislation (see also Nam v. Commonwealth Funds Management Ltd [2002] NSWADT 80 at [81] and [92]) intended to create a framework within which lessors and lessees could operate in reasonable comfort knowing that their respective interests would be protected if the Act was followed. Consequently, the Act set up (in my opinion) a clear disclosure regime so that parties would freely make disclosure, one to the other, of matters/ representations/financials upon which they each relied in entering into the Lease contract. It is important to understand that something well in excess of 80% of new businesses fail, many for the simple reason that they either do not have a business plan, alternatively any business plan is based upon the wrong or incomplete information. The purpose of the disclosure regime was primarily, to protect a prospective lessee/tenant by giving them disclosure, not only of representations made but also, and importantly, financial obligations that they would be bound to meet under the lease contract. 35 In my respectful opinion remedial legislation of this nature should be interpreted with a generosity of spirit not present when interpreting laws which prescribe criminal sanctions. Remedial legislation is intended to correct problems that have been demonstrated to arise (in the particular case of retail leases) when there is inequality of bargaining power. Thus, in my very respectful opinion, to dissect the disclosure regime with a scalpel (as was done by the Court of Appeal in Trust Company of Australia Ltd v. Skiwing Pty Ltd [2006] NSWCA 387 at [24-25] and the High Court in subsequently refusing special leave (Skiwing Pty Limited v. Trust Company of Australia Limited [2008] HCASL 229), does violence to the protective and purposive intent of the legislation in respect of the financial obligations of tenants, and which has the capacity to undermine (to some extent) the disclosure regime by placing an undisclosed financial imposition on a lessee/tenant which could well result in that business becoming unviable. 36 The second reason behind the disclosure regime is the protection of the lessor (the disclosure regime consists of a lessor's disclosure statement and a lessee's disclosure statement, and the terms of both are quite specific and revealing, if properly completed) – if the regime was complied with by the parties as intended by the legislature then there would, I opine, be considerably less cases in this Tribunal involving allegations made under Section 10, Section 62B and more recently the newly inserted Sections 62C-62E. 37 In my opinion this legislation "should not be narrowly construed and should be interpreted to promote the purpose and object underlining the Act" (Commonwealth of Australia v. Murry [1998] 193 CLR 605 at 632). 38 In my view, and using the type of reasoning that I endeavoured to use in Webb v. Clifton [2008] NSWADT 132, the Act, if it is to operate as was clearly intended by the legislature, "ought not to be given a narrow or restricted interpretation". 39 There is further good reason for this approach. In his Second Reading Speech 16 April 1997 to the 1997 amendments, the Treasurer noted that the then amendments were intended to "give better effect to the intentions of the Parliament that were expressed at the time the Retail Leases Bill was before it in 1994". 40 And, finally, in the Second Reading Speech 19 October 2005 in support of the Retail Leases Amendment Bill, the Minister for Small Business said (relevantly): "The bill is about making it easier for retailers and landlords of retail shops to do business … it is about supporting small business and jobs growth in this vibrant sector of the State's economy … the reforms contained in the bill are part of the Government's longstanding commitment to promote business stability in the retail leasing market". The Minister referred to retailing as being the State's "largest employing industry", observed that "this vibrant small business sector is vital to the (NSW) economy" and that the reforms were developed "to provide a competitive environment for retail Lease dealings – one that cuts red tape, provides greater certainty and reduces the need in costly disputation". The Minister observed that the result "is a comprehensive package of reforms to improve the operation of the Act for tenants and landlords at every stage of the retail leasing relationship … (and he affirmed the Government's) belief in the importance of maintaining a thriving small business sector in an era where a small number of large players dominate many markets." 41 Importantly, the Minister said that the Government had "developed these reforms so that landlords and small retailers can focus on day to day business, secure in the knowledge that the Retail Leases Act clearly sets out their legal rights and financial responsibilities as parties to a shop lease". Later, the Minister described a Lease as being "a business asset" and observed, later in the Speech, that the Government was "including misleading and deceptive conduct in the existing regime for dispute resolution" and noted that at "a time when competition is becoming tougher, with the temptation to engage in unfair practices increased, the Government has recognised that the Administrative Decisions Tribunal should have a wider role in dealing with misleading or deceptive conduct than (was then) currently available under the Act". 42 In other words, the combination of all of the above demonstrates that there was a continuing expression by the State Parliament that the Act was designed to assist the smooth conduct of lease negotiations and subsequent contracts and the relationship between lessors and lessees, the re-enforcement of the primacy of the Act over the terms of any retail lease and the jurisdiction of this Tribunal as a one-stop shop for the resolution of retail lease disputes. And it is with all of that in mind that I approach the interpretation of the Act with a generosity of spirit, understanding the purposive remedial nature of the Act and the need, as best possible within the legislative framework, to make it work in accordance with the above enunciated principles. 43 The second starting point for consideration of the issues now before me is (in my view) the recognition of the fact that the contract between a lessor and lessee is embodied in the lease as it is regulated by the Act. No longer does one simply look at the lease contract itself; rather, one is required to look at that contract having regard to the overlay of the Act. In many of its provisions the Act makes it plain that it in its terms it makes void any lease provision to the contrary (e.g s.7 – quite clear in its terms; ss8, 12, 14, 15 and 23-24B); and inserts mandatory terms (eg ss.25, 27, 28 and 29); and in other cases reads down or affects the operation of lease terms (eg. ss 8, 16, 19, 22, 26, 28A and 31); and so on. 44 So, as between the Applicant and the First Respondent the document that governs their commercial relationship is the Lease as it is affected by the Act, with all the rights and entitlements, variations and off-sets, as may apply to the lease contract by the Act and the powers given to this Tribunal under the Act. The latter is an important observation because those powers directly affect the lease contract, the "business asset". There is no opting out provision such that the parties to a retail lease are bound, not only by the Act itself in the way the Act imposes itself on the lease contract terms, but also by the fact that by entering into a lease governed by the Act the parties have adopted, alternatively submitted to, the jurisdiction of the Act and the consequent jurisdiction of this Tribunal and the orders that it is empowered to make under the Act. 45 Consequently, I reject the submission made on behalf of the Second and Third Respondents that the Act does not in its terms derogate from the fundamental rights of indefeasibility of title created under the Real Property Act simply because, although that bald statement may be true, the Act does not purport to derogate from those rights but rather it imposes a regime which does not affect the operation of Real Property Act Section 42 (which provides that a registered proprietor of any estate or interest in land shall, except in the case of fraud, hold the same "subject to such other estates and interests and other entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded", with various nominated exceptions) because the Act does not create equitable paramount interests but rather regulates and defines the estate or interest in land; such that the holder of that estate or interest in land holds that estate or interest (relevantly) in accordance with the Act. Put another way, the estate or interest of the registered proprietor under the Real Property Act of land over which a lease has been registered that is governed by the Real Property Act, and a lease so registered, takes that defined interest subject to the terms of the Act and therefore not subject to some undisclosed equity or interest, simply because the equity or interest (if so categorised) is in fact disclosed by the Act itself. 46 It was submitted that "it is a canon of statutory construction that definitions are not to be treated as substantive provisions" and reliance was placed on Gibb v. FCT (1966) 118CLR 628 at 635. It was submitted that "an attempt to use Section 3 to create a mechanism to transmit liability of an in personam right to an innocent third party violates this principle". This argument was raised in opposition to that of the Applicant to the effect that the Second and Third Respondents succeed to the First Respondent's liability by virtue of the definition of "lessor" in Section 3 of the Act as including the lessor's "assigns". 47 Gibb involved an argument over whether certain bonus shares issued on capitalisation of profits arising from revaluation of assets constituted a "dividend" within the meaning given to that word in the Income Tax and Social Services Contribution Act 1936-1961. There were three Judgments written, one of which supported the proposition that the dividends were taxable and the other two Judgments were of the opposite opinion. The Respondent to the appeal relied upon the definition of "dividend" in the relevant Act to support the proposition that the bonus shares constituted income and were assessable. 48 The High Court rejected this view. In the majority decision of Barwick CJ, McTiernan and Taylor JJ, at [1996] HCA 74 at [10], viewed the definition of "dividend" in that Act as doing "no more than define the meaning to be assigned to the word "dividend" as used (in the Act) … The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – they are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore no more than an aid to the construction of the statute and do not operate in any other way." 49 Windeyer J had a similar view at [8] in making the observation that when "a word is said in an interpretation section or clause to "include" certain objects some of them may be objects which according to its ordinary connotation would not be within it denotation. But thus giving a term an enlarged denotation, as "a device to avoid repetition", does not thereby result in all objects brought within the enlarged denotation gaining all the characteristics which the term in its ordinary usage connotes". Consequently, His Honour concluded, as did the other members the majority, that he was "unable to accept the view that, because the word "dividend" is made to comprehend bonus shares, and because dividends are ordinarily income, the proceeds of sale (of the) bonus shares are made income for the purposes of s.47 of that Act." 50 It seems to me clear that what the High Court was saying was that you look at the definitional section of the particular Act as an aid to the construction of the Act. Thus, presumably, in the construction of this Act one looks to the word "lessor" (as it was argued) and then uses that definition as an aid to construing the other sections of the Act where that word appears. 51 For my part I do not think it is necessary to strictly travel down that path as submitted in [46] above. It is sufficient, in my view, to confine one's attention to the terms of the Act, by way of statutory construction, and bearing in mind that one should adopt a purposive approach having regard to what in my view are the primary principles that should apply to the interpretation of the operation of the Act as I have endeavoured to set out above. 52 I am comforted in my view by the decision of the High Court in Project Blue Sky v. ABA [1998] HCA 28. That case involved a debate on whether certain regulations made by the Australian Broadcasting Authority were inconsistent with the legislative requirement under the Broadcasting Services Act 1992 that the functions of the Authority be performed consistently with Australia's international obligations. In order to answer that question the High Court embarked upon an analysis of the relevant Act. A separate Judgment was written by Brennan CJ who, at [41] said: "The purpose of construing the text of a statute is to ascertain therefrom the intention of the enacting Parliament". 53 The majority (McHugh, Gummow, Kirby and Hayne JJ) made these observations at [69] ff: "[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v. Agalianos Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be elevated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court to "determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. [71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. (And the court went on to observe) that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent"… [78] … the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." 54 The majority (at [78]) quoted with approval the words of Francis Bennion in Statutory Interpretation as follows: "The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor it is likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example, the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with". 55 And finally, at [91], the majority said: "The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects …" 56 I have been to some pains to set out above my reasoning for my approach to this matter and, in particular, how one views s.10 in the context of the Act taken as a whole. I have endeavoured to put into practice in this Judgment the principles identified in Project Blue Sky and Gibb, coupled with the clear expressions by the State Parliament and what I regard as the purposive and remedial approach that should be taken to the interpretation of the Act. 57 I hark back to the most elementary starting point: the Lease contract between the Applicant and the First Respondent. At the risk of being repetitive this Lease contract is a lease under the Act. It is subject to the Act. It is subject to any overriding provisions of the Act. It is subject to the rights and liabilities and entitlements created by the Act; such that it is then necessary, having regard to the pleadings and the way the Applicant has put its case on this interlocutory motion, to examine the remedies available under the Act should the Applicant, at hearing, succeed in making out its case for relief. 58 The remedies are generally to be found in Section 72, which sets out the powers of this Tribunal to make various defined orders "that it considers appropriate". These are to be found in sub-section (1) and the relevant subparagraphs of that subsection (1) are set out below with an appropriate observation or two pertaining to each: S.72(1)(a) an order that a party to the proceedings pay money to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person. [This type of order would entitle the Applicant to a monetary payment from any of the Respondents. It is important to remember that Section 70 defines what is a "retail tenancy claim" and sub-section (a) thereof refers to claims "in connection with a liability or obligation with which a retail tenancy dispute is concerned"; and "retail tenancy dispute" is defined in Section 63(1) as meaning "any dispute concerning the liabilities or obligations (including any obligation to pay money) of a party or former party to a retail shop lease or former lease …"; thus the combination of those sections allows an order to be made under this sub-section of Section 72(1) against any of the Respondents. It was not argued that, as a consequence of the assignment, the Second and Third Respondents were not a "party" to the Lease, were not the "lessor", or the dispute was not a "retail tenancy dispute"]. S.72(1)(b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings. [Relevantly to the issue now before the Tribunal it would have little or no utility to make an order against the First Respondent under this sub-section. Clearly, the relevant party is the Second or Third Respondents both of which have asserted a debt due to them by the Applicant on account of arrears of rent]. S.72(1)(c) an order that a party to the proceedings: (i) do any specified work or perform any specified service or any obligation arising under this Act or the terms of a lease, or (ii) surrender possession of specified Premises to another person, or (iii) assign his or her or its rights under a lease to a specified person, or (iv) do or perform, or refrain from doing or performing, any specified act, matter or thing. [Clearly, the utility of any order under this sub-section against the First Respondent is minimal, if at all. The current lessee is the Second and Third Respondents and they are the ones against whom an order could be sought by this Applicant (as lessee); alternatively, they are the ones who could seek an order against this Applicant, particularly an order under (c)(ii)]. S.72(1)(d) an order granting a party to the proceedings relief against forfeiture. [It would be impossible to make an order against the First Respondent under this sub-section. The only orders that could be made would be against the Second or Third Respondents]. S.72(1)(e) an order, by consent of the parties, requiring the parties to the proceedings to rectify a lease. [Again, the only parties who could possibly consent to such an order would be the Applicant and the Second and Third Respondents]. S.72(1)(f) an order: (i) declaring any provision made under a lease to be void for being inconsistent with this Act of the regulations, or (ii) declaring that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee, or (iii) declaring the rights and liabilities of the parties under law, whether any consequential relief is or could be claimed or not, or (iv) declaring that a party is or is not entitled to receive payment of the whole or a part of a security bond. [Clearly, and again, the only parties to these types of orders would be the Applicant and the Second and Third Respondents. What would be the point, for example, of making a declaration under (f)(i) with regard to the First Respondent? Clearly this sub-section relates to the Lease, and this observation only serves to underline the principles that I have been endeavouring to enunciate above]. 59 The balance of Section 72 are enabling and ancillary provisions which enable this Tribunal to make ancillary orders to enable "an order under this section to have full effect"; to impose conditions as the Tribunal "considers appropriate"; and to make interim orders as "it appears to the Tribunal desirable to do so". To make an interim order (by way of injunction to restrain a party from evicting the Applicant) could only be made against the Second and Third Respondents. 60 There are other sections of the Act which may impinge upon the rights of the Applicant and the Second and Third Respondents. A good example is the regime for the determination of rent upon exercise of option (if any) or when the Lease contract provides for a review to market. In all of these circumstances the Act applies as a statutory overlay to the Lease contract. And, importantly, these would only apply to the Second and Third Respondents. A further example would be a claim under S.70(a)(vii), which could only be made against the Second and Third Respondents. 61 Indeed, it is arguable (if I am correct in my analysis) that the "real" Respondents to the Applicant's proceedings are the Second and Third Respondents, simply because they are the primary entities that are caught by Section 72 orders in relation to the Lease over the Premises and they are the entities asserting arrears of rent. 62 It is now necessary to turn to s.72AA. Although this was not raised by any party, it is clearly relevant. The reason for this is that part of the case of the Applicant is that the Respondents have engaged in unconscionable conduct (s.62B) and the remedies for such conduct, if proven, are to be found in s.72AA. 63 S.72AA(1) provides that the Tribunal is empowered to make "any one or more of the following orders that it considers appropriate: a) an order that a party to the proceedings pay money to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person, b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitle to a refund of any money paid by another party to the proceedings". 64 Clearly an order under sub-section (1)(a) can be made against any of the Respondents, which includes the Second and Third Respondents. 65 However, an order under sub-section (1)(b), in this particular case before the Tribunal, could only be made against the Second and Third Respondents – after all, it is those Respondents who are the lessor and it is those Respondents who assert arrears of rent. 66 The balance of s72AA are ancillary and facilitative sub-sections, including the power to make ancillary orders and interim orders. 67 It follows, with the same reasoning as applies above in relation to s.72 orders, that the "real" Respondents to the Applicant's proceedings relating to unconscionable conduct are the Second and Third Respondents. Although it is true that the First Respondent may also be caught by s.72AA orders, the plain fact is that it is the Second and Third Respondents who are the lessors, who own the Centre and who are asserting arrears of rent and, presumably, will ultimately seek to evict the Applicant from the Premises. The Purchase 68 The Second and Third Respondents purchased firstly, the building in which the Premises are situate, and secondly, the right, title and interest of the First Respondent as lessor in the Lease. For the purposes of this decision, made as it is on an interlocutory argument, there is no need to consider the terms of the contract for sale/purchase, even if ultimately that is thought to be relevant. The plain fact is that, on the pleadings and as agreed by the parties, the Second and Third Respondents acquired the interest of the First Respondent as lessor in the Lease. 69 What follows from that? Firstly, the Second and Third Respondents thereby acquired the rights and entitlements of the First Respondent as lessor. Those rights and entitlements included the entitlement to mount, as against the Applicant as lessee, a retail tenancy claim under Section 70 of the Act. In particular, a right to claim as against the Applicant a "payment of money" within Section 70(a)(i). 70 There are other rights as well in Section 70 which, by the purchase and acquisition of the First Respondent's interest, were acquired by and became vested in the Second and Third Respondents. These would include retail tenancy claims under Section 70(a)(iv), (vii), (ix), (xi); and Section 70(b), (c); Section 71(1) (because it was not suggested that the Second and Third Respondents were not "a party" to the Lease and it was not suggested that the Lease was not a "retail shop lease"); and orders under Section 72. 71 The importance of Section 72 is this: the Second and Third Respondents would be entitled (and it was not suggested otherwise) to mount a claim and obtain an order against the Applicant for the asserted arrears under Section 72(1)(a) and they may also seek orders under Section 72(1)(c)(ii). 72 In other words, the Second and Third Respondents would be entitled, as lessor, to seek relief in this Tribunal. There was no argument put that this Tribunal did not have jurisdiction in the case now before it and there was no argument put that to the effect that the Second and Third Respondents could not themselves commence proceedings against the Applicant in this Tribunal and in reliance upon the Act. 73 If that is correct then it must follow that an assignee of a lease, whether or not the interest is that of a lessor or lessee (and in this regard it is worth remembering that tha definition of "lessee" in s.3 includes the assigns of a lessee), cannot simply pick and choose which parts of the lease contract it wishes to be bound by or apply to it; similarly, and on the basis that the lease contract incorporates and is governed by the Act, the assignee cannot pick and choose which parts of the Act it is bound by or which it would seek to enforce and which it would assert it is not bound by and the terms of which it can resist. In for a penny, in for a pound. You cannot have your cake and eat it too. An assignee, so it seems to me, is bound by the lease and, if it is a retail lease, it bound by those provisions of the Act which apply to the lease contact. 74 There is one further observation: the rights of the First Respondent as lessor under the Lease have been assigned to the Second and Third Respondents, such that it is at least arguable (and I express no final view on this) that the First Respondent is no longer a party to the Lease (although it may be caught by the appellation "former party"), but it is difficult to see how a retail tenancy claim can be mounted against the First Respondent and orders made under Section 72, at least in the circumstances of the case now before the Tribunal, because in reality the only parties that can be bound by Section 72 orders are the Second and Third Respondents who are now the lessors. Section 10 – Pre-Lease Misrepresentations 75 The Second and Third Respondents submit that there "is no allegation of any matter of thing which could even arguably justify a finding that (they) engaged in relevant conduct to attract the operation of s. 10 of the Act. The fact that "party" is defined under s.3 of the Act to include an assignee of a lessor does not extend the operation of s.10 of the Act. Section 10 of the Act requires relevant conduct by a "party". All s.3 of the Act does is make clear that the "party" can engage in such conduct includes a sub-lessor and a lessor's or sub-lessor's heirs, executors, administrators and assigns … (s.10) properly constructed, … requires relevant conduct by the lessor, sub-lessor and a lessor's or sub-lessor's heirs, executors, administrators and assigns to attract the sanction identified in it". The submission is that the Applicant has "not adduced any evidence or made any allegation that the (Respondents) made any representations to the Applicant prior to the Applicant entering into the Lease, let alone evidence that the (Respondents) had knowledge that the representations were false. In the absence of even an allegation that the (Respondents) engaged in relevant conduct, the Applicant has no cause of action against the Respondent". 76 The difficulty, so it seems to me, of this type of submission is that it seeks to pick and choose which liabilities the Second and Third Respondent wish to acquire. No doubt they would gladly assume the benefits under the Act, and would appropriately plead them against the Applicant. But s.10 creates a right of compensation, not in personam (and in this regard I respectfully disagree with the submission made by the Second Respondent to the effect that pre-Lease misrepresentation creates a right in personam only, having regard to my analysis of the Act and the way it overlays the actual Lease) but it also avoids sub-section (2) of s.10. 77 S.10(2) is in this form: "The giving of a lessor's disclosure statement to a prospective lessee under a retail shop lease is considered to be the making of a representation by the lessor to the lessee as to the information in the disclosure statement." It is plain to me that a purchaser from a lessor would be very alive to, not only the terms of the lease itself, but also the terms of the disclosure statements. The purchaser would rely on those documents as part of its due diligence, and correctly so, because the disclosure regime under the Act, and the content of disclosure statements (it being remembered that there are lessor's and lessee's disclosure statements), form part of the contractual basis of the lease contract and create rights and liabilities under the Act. In my opinion, it could not be said that a purchaser/assignee could simply ignore, as against a lessee, the disclosure statements. After all, what is the purchaser/assignee purchasing, if not the lease contract, supported by the disclosure statements and with all the rights and liabilities created by the Act itself? 78 In my opinion, to simply pass the ball along the back line from the scrum, and seek to escape liability, means that one is not playing the same game as the guys in the scrum. There is only one Lease and it is upon that Lease (an important "business asset" (see [41] above)) that the lessee relies, with whatever consequences, upside or downside, as attached to that Lease. The same must apply, in my opinion, to the lessor, howsoever described (whether as principal/original lessor or lessor by way of assignment). 79 If the words "lessor" and/or "lessee" are limited, for the purposes of assignment, to the original lessor and/or lessee then, so it seems to me, the Act can be easily circumvented by an unscrupulous lessor by making pre-lease misrepresentations with knowledge that they are false and misleading, and engaging in unconscionable conduct, then transferring its interests to a purchaser, going into liquidation and washing its hands of all its pre-lease misrepresentations and unconscionable conduct, yet at the same time leaving the lessee liable to the purchaser with no remedy under s.10 or s.72. In my opinion that is not how the Act was intended to operate and not how the Act does in fact operate. 80 A right to compensation under s.10 is meaningless if, coupled with s.72 rights, it cannot be pleaded as a set-off or contra against a claim by a lessor for, for example, rent. And, if the Second and Third Respondents are "parties" for the purpose of s.72 (with s.63(1) and s.70) then there is no reason for them not to be a party for the purpose of s.10 (with s.63(1)). There is no provision in the Act that would prevent a lessee from asserting: "I know I owe the lessor arrears of rent but the reason that there are arrears is because I relied upon the pre-lease representations in preparing my business plan and agreeing to the quantum of rent and, because those representations were false and/or misleading, my business plan and my consequent rental payments have been based on an incorrect premise/basis because of the lessor's misrepresentations and the compensation that I claim is, for example, the difference between the rent I would have reasonably paid had the representations not been false and/or misleading and the rent that I am obliged to pay under the lease". To seek to deny this Applicant that right seems to me to fly in the face of the whole thrust of the Act. 81 Putting all this another way, it is not a question of how the common law or equity would regard a pre-lease misrepresentation, but rather it is how the right, created by statute in s.10, is regarded/treated in the scheme of the Act. In my view, even if a pre-lease misrepresentation is regarded at common law or equity as a right in personam, a pre-lease misrepresentation created by s.10 is a statutory right to be interpreted in the context of the Act. If, as in my opinion it is, the Act is remedial, designed to create a statutory umbrella to regulate the contractual arrangements between lessors and lessees, designed to impose overarching conditions and obligations which uniquely operate to change what would otherwise be an ordinary civil contract by the imposition of statutory terms and conditions, then s.10 must be interpreted in that context and not somehow excised from the otherwise all-embracing scheme such that it does not apply to lessor/assignees yet the other provisions of the Act do. That, in my view, would be anomalous (to say the least) and out of context with the reminder of the Act. Further Observations 82 There are a number of further/other observations that I would seek to make. Firstly, it is important to understand that s.10 is not specific. Although in the scheme of things it is generally used by a lessee, it can also equally be used by a lessor. I accept that arguments by analogy are not logically valid but if the scenario were reversed then no doubt the Second and Third Respondents would be unlikely to complain. This scenario is as follows: assume tenant/lessee No. 1 enters into a lease on 26 July, then transfers its interest to tenant/lessee No. 2 on 29 or 30 July, firstly: does tenant/lessee No. 2 get the benefit of s.10, or is it lost to tenant/lessee No. 2 such that tenant/lessee No. 2 cannot use it as a contra or set-off against a claim under s.72 or s.72AA; alternatively if tenant/lessee No. 1 made a false or misleading statement or representation with knowledge that it was false or misleading and damage was suffered by the lessor as a result, and tenant/lessee No. 1, having transferred its interest (as above) and went into liquidation, is the lessor then precluded as against tenant/lessee No. 2 from asserting the benefit of s.10? If the answer to these questions is "Yes" then it seems to me s.10 does not operate as the Parliament intended. 83 Secondly, the word "party" in s.10 does not exclude an assignee of a party. It is important to remember that s.63, for the purposes of Part 8 of the Act (dealing with dispute resolution), defines a "retail tenancy dispute" as: "Any dispute concerning the liabilities or obligations (including any obligation to pay money) of a party or former party to a retail shop lease or former lease, being liabilities or obligations which arose under the lease or former lease or which arose in connection with the use or occupation of the retail shop to which the lease or former lease relates …". 84 It is clear from that definition, and from the facts now before the Tribunal, that the parties to this dispute are in fact parties to the Lease, and also a former party to the Lease (the First Respondent); thus, for example, it would include an assign from a former party. There is no doubt that a claim for compensation under s.10(1) is a "retail tenancy dispute" for the purposes of s.63 – see Parkinson v. EK Nominees Pty Limited (1997) NSW ConvR 55-816, and s.70(a)(x). 85 Thus, an assignee is clearly a "party" and "the injured party" on an assignment surely includes an assignee of the original injured party simply because they, the assignee, has also suffered damage. So, for example, if a lessor suffered damage as a result of a false or misleading statement of representation, an assignee of that lessor also suffers that damage. 86 To interpret s.10 in a straight line avoids the reality of the marketplace and "life"; where properties and businesses change hands, sometimes on more than one occasion, during the life of a lease. To restrict s.10 to the original grant of the lease avoids that reality and also avoids the fact that the false or misleading statement of representation may underline or underpin the original grant of the lease and the lease contract itself. 87 So, in my view, one needs to tailor s.10 to meet the circumstances that parties to a lease encounter in the market place. That simply means that, in the circumstances now before the Tribunal, a purchaser from a lessor is liable to pay a lessee for damage suffered by the lessee that is attributable to the lessee entering into the lease as a result of a false or misleading statement of representation made by the lessor … . In my opinion this interpretation is consistent with the principles set out in Project Blue Sky, the purpose of the Parliament in the various Second Reading Speeches and the remedial purposive intent of the Act taken as a whole. To do otherwise would deprive an innocent lessee from a right to compensation against its lessor (by assignment) when that lessor pleads against it, the lessee, arrears of rent and seeks to have that lessee evicted from the Premises. In my opinion that scenario was never intended and s.10 must be read "by construing (s.10) so that it is consistent with the language and purpose of all the provisions of (the Act) [my emphasis] … by adjusting the meaning of the competing provisions to achieve that result which will give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions". Thus it is the duty of this Tribunal "to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have … The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction, may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning". And, as importantly, s.10 "must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals". Conclusions 88 If my analysis is correct then it follows that a purchaser should not only carry out due diligence but also make sure that it is adequately protected against liabilities that may arise under the Act that have not been disclosed (if this is in fact the case). I must say I would have thought, as a practicing lawyer, that a purchaser, properly advised, would have, not only carried out due diligence but also have sought to protect itself in the manner referred to. 89 The result is, far from being dismissed from the proceedings, the Second and Third Respondents have been properly joined and are, in my respectful opinion, the "real" Respondents. How they arrange their affairs with the First Respondent is a matter for them but in my opinion the Applicant has properly joined them as Respondents and the matter should proceed as the parties may be advised. 90 Finally, it was not argued that the Applicant was not entitled to mount an unconscionable conduct case as pleaded against the Second and Third Respondents (as distinct to whether the pleadings on this aspect should be struck out) – see [12,13, 15(b) and 21 above]. For that reason alone, even if I am incorrect on my above analysis, the Second and Third Respondents are properly parties to these proceedings. 91 I therefore decline to make an order striking out the proceedings as instituted as against the Second and Third Respondents, alternatively dismissing them from these proceedings. 92 However, I am of the view that, although all parties are relatively clear as to the arguments raised by the Applicant, certainly as articulated orally from the bar table, the pleadings, although previously oft amended, do not articulate the true case for the Applicant and the Applicant should be granted further leave to further amend as it may be advised. In this regard reference can be made to Spuds Surf Chatswood Pty Ltd v. P T Limited [2007] NSWADT 130 at [13], Legal Services Commissioner v. Ball [1999] NSWADT 45, and Kindful (Australia) Pty Ltd v. Country Villa Holdings Pty Limited [2006] NSWADT 244 at [9]. I have a fairly strong view about pleadings and particulars – not only do they serve to concentrate the mind on the issues, and the evidence in support, but they also tell the other party, and the Court/Tribunal, what is the asserting party's case and thus the other party knows the case it is called upon to meet and the Court/Tribunal is enjoined to address those defined issues which are put before it by the parties for determination. It is now common practice in this Division and the Legal Services Division to plead the case asserted and to particularise, in proper form, the pleaded assertions. Absent pleadings/ particulars there is a serious risk that parties, and the Tribunal, may be confused/misled regarding the issues and thus the hearing may be elongated and/or the result may not address the issues the parties really wish determined. 93 Furthermore, and as discussed at the hearing, in the course of discovery and inspection further evidentiary material may come to light which may encourage the Applicant to re-assess its position and apply to further amend its pleadings. That I understand, simply because these are early days (if the matter cannot be settled) and one's experience shows that as matters progress the issues are often refined. I see no difficult with all of this and certainly thus far no party (in my opinion) has been prejudiced. 94 The proceedings should be brought back before me for further directions. 95 All parties have applied for costs orders in their favour. I must say at first blush that I am unable to see any basis for any costs order consistent with the principles that apply in this Division of the Tribunal. However, the orders that I propose make provision for a costs application should the parties be so advised. Orders: 1. The Tribunal declines to make any order dismissing from these proceedings the Second and Third Respondents. 2. The Motion by the Second and Third Respondents to dismiss them from these proceedings is itself dismissed. 3. Leave is granted to all parties to apply for a costs order relating to these interlocutory proceedings as they may be advised. Any such application(s) should be raised before me at the next Directions Hearing. 4. Matter listed for further Directions before me at 9.30am on 14 August 2008. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.