Buttrose J (delivering oral judgment):

This is a summons taken out by trustees, the plaintiffs in this originating summons, seeking an order that the agreement dated 12th of August, 1965 and was made between them and one Goh Eng Wah and does not create a tenancy of the land and premises referred to therein. The summons also seeks the Court's approval of the agreement.

When I first glanced through the papers before the hearing, I formed the tentative opinion that it was not a matter which would present ant great difficulty. At the commencement of the hearing on seeing the wealth of authority which Counsel, through their industry, had assembled, I began to have doubts as to whether, perhaps, I had not been somewhat premature in coming to that opinion but having now had the benefit of the exhaustive arguments of all Counsel, I remain of the opinion I originally formed that the matter was after all not so complex of difficult as it might appear.

It is unnecessary nor do i propose to refer to the various interlocutory applications and orders that have been made in this originating summons and of which this present application is the sequel.

The short point for decision is whether this agreement constitutes a license or a tenancy. The agreement, on the fact of it, purports to be a licence. It's sole object is to licence and authorise one Goh Eng Wah to run the business of an amusement park on the land in question. It is expressly declared in the licence that the licence is a licence to carry on the business of an amusement park, such licence being a personal right granted to the licensee. It is further declared, expressly and specifically, that the intention of the parties is not to create a tenancy or a lease.

Having considered the document as a whole and examined its various clauses, it seems to me clear that on the face of the agreement as it stands, the parties intended it to be a licence and not a tenancy. Here, therefore, we have the intention of the grantor, accepted by the grantee, to create a licence and not a tenancy and as was pointed out in Megarry's volume on the Rent Acts, 9th Edn., p. 52 it would be wrong for the Court to extract from the grantor an estate or interest in land in the teeth of the intention of the parties at all events if the words or document by which the transaction was effected are apt for a licence and not for a tenancy. The Court, however, must not look so much at the words as the substance of the agreement. The relationship of the parties is determined by the law and not by the label which they choose to put on it. Do therefore the surrounding circumstances in any way affect or alter the express intention of the parties as disclosed in this agreement? I think not. The fact that the licensee is permitted to charge and collect admission fees to the amusement park or to collect licence fees or advertisement charges in respect of the buildings and erections in the park does not, in my view, confer on the licensee an interest in the land so as to constitute a tenancy. Such matters are, in my judgment, inseparable from and essentially a necessary adjunct to the efficient and successful running of the business of an amusement park. It is not, in my judgment, a grant to the licensee of benefits and profits arising out of the land itself.

The licence sought to be granted her is not, in my opinion, an estate or interest in land and at the close of the argument I was informed by Counsel for Goh Eng Wah that he was prepared to amend the licence by adding at the end of clause 6 thereof the words "or any interest in land", and I direct that this amendment be made. The agreement itself, the surrounding circumstances, and the conduct of the parties all got to show, I think, that what was intended was that Goh Eng Wah was to have a personal licence or privilege to run the business of an amusement park with no interest in the land. He was merely to use the property in a certain way and on certain term