On a far more serious note…

Have a look at the following text from section 37(2) of the Retail Leases Act 2003 (Vic) (emphasis added):

(2) The current market rent is taken to be the rent obtainable at the time of the review in a free and open market between a willing landlord and willing tenant in an arm’s length transaction having regard to these matters—

(a)  the provisions of the lease;

(b)  the rent that would reasonably be expected to be paid for the premises if they were unoccupied and offered for lease for the same, or a substantially similar, use to which the premises may be put under the lease;

(c)  the landlord’s outgoings to the extent to which the tenant is liable to contribute to those outgoings;

(d)  rent concessions and other benefits offered to prospective tenants of unoccupied retail premises—

but the current market rent is not to take into account the value of goodwill created by the tenant’s occupation or the value of the tenant’s fixtures and fittings.

Most people think that the paragraphs marked (a) to (d) are sub-sub-sections (or sub-sub-clauses in a contract, or sub-sub-paragraphs in a submission or a judgment).^[1]  And most lawyers can tell you that the text at the top, starting with ‘(2) The current …’ is called the ‘chapeau’, which is French for hat or cap.

But what do you call the bottom bit – the bit in bold in the text above?  It seems that the jury has been out on this question for some time.

The second author, Callum Dawlings, has done some research on this very important question.

In SMA Solar Technology AG v Beyond Building Systems Pty Ltd (No 5) [2012] FCA 1483, Perram J in the Federal Court of Australia looked at a similarly structured clause in s 120(2) of the Trade Marks Act 1995 (Cth), and referred to the bottom bit as the ‘chausette’.  While that sounds rather sophisticated and charming on its own, and a suitable counterpart to ‘chapeau’, (although misspelled) ‘chaus[s]ette’ translates from French to English as ’sock’.  Given the firstnamed author’s tendency towards foot odour, we think we can do better than ‘sock’.

More recently, in Viljoen v Hayes [2017] NSWSC 801, Parker J in the NSW Supreme Court considered the rule 5.3(1) of the Uniform Civil Procedure Rules and referred to the bottom bit as the ‘chaussure’.  Again, this new addition sounds suitably elegant, and translates to the English word ‘shoe’, which strikes us both as an appropriate counterpart to the hat.

However, a few weeks later, the President of the NSW Civil and Administrative Tribunal, Wright J, along with Principal Members Harrowell and Seiden SC, reverted to the word ‘chaussette’ (spelt with two s’s this time), and provided the following thoroughly researched explanatory footnote:

We use “chaussette” (the French word for sock) in this context to refer to the concluding general words of a statutory provision. This is by analogy with “chapeau”, the French word for hat, which is used to refer to the introductory general words of a statutory provision appearing above a number of paragraphs which are all governed by the introductory words. As far as we can ascertain “chausette” was first used in this way by Perram J in SMA Solar Technology AG v Beyond Building Systems Pty Ltd (No 5) [2012] FCA 1483 at [79]. The term was later adopted by A.J.L. Bannon SC, in oral arguments before the High Court, in Astrazeneca AB & Anor v Apotex Pty Ltd [2015] HCATrans 106. Parker J in Viljoen v Hayes [2017] NSWSC 801 at [26] has recently adopted the use of “chaussure” (French for shoe) instead of “chausette” to refer to the concluding words of a provision.^[2]

While ‘chausette’ (erroneously spelled with one “s“) has been favoured in South Australian Courts of Appeal (see Jones v The Queen [2018] SASCFC 80 [117], [137]; Weragoda v The Queen [2021] SASCA 123 [54], [71] and Gjona v The Queen [2021] SASCA 79 [9] (Doyle CJ is the common denominator on the benches in the latter two cases), ‘chaussure’ seems to have gained popularity in the Federal Court Full Bench and the NSW Court of Appeal (see O’Connor v O’Connor [2018] NSWCA 214 [89], and Kwatra v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 194 [13]).

Curiously though, Stevenson J as a trial judge in the NSW Supreme Court has variously used:

• ‘chausseur’ (a shoemaker): see Curve Securities Pty Ltd v Young (No 2) [2022] NSWSC 1436 [52];
• ‘chaussette’: see Downer EDI Rail Pty Ltd v John Holland Pty Ltd (No 4) [2018] NSWSC 326 [335]-[348] (where ‘chaussette’ also appears in the catchwords!); Bank of Queensland Ltd v AIG Australia Ltd[2018] NSWSC 1689 [46]-[50]; G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd[2019] NSWSC 407 [14]; and New Hope Corporation Ltd v Northern Energy Corporation Ltd (admin appt) [2019] NSWSC 879 [40];
• ‘chasseur’: see The Trustee for the Host Plus Superannuation Fund t/a Host-Plus Pty Ltd v Maritime Super Pty Ltd [2023] NSWSC 725 [40] (where ‘chapeau’ appears in the same sentence as ‘chasseur’);The University of Sydney v Multiplex Constructions Pty Ltd (No 2) [2023] NSWSC 1019 [20]; and MGW Engineering Pty Ltd t/a Forefront Services v CMOC Mining Pty Ltd [2021] NSWSC 514 [76] (in which his Honour footnoted Viljoen v Hayes and compared Parker J’s use of ‘chaussure’);  and
• also used ‘chaussure’ itself: Heavy Plant Leasing Pty Ltd (in liq) v McDonnell Dowell Constructors (Aust) Pty Ltd (No 2) [2022] NSWSC 1775 [67].

The word ‘chasseur’ translates from French to English as ‘hunter’, although we suspect that the word may have the same origins as English’s ‘chase’ or ‘chaser’.

Ever practical, and not to be outdone by their New South Welsh brethren (and sistren), the Victorian Court of Appeal in Brotherhood of St Laurence v Sarina Investments Pty Ltd [2024] VSCA 46 weighed in on the debate (perhaps unwittingly) and referred to the bottom bit of a clause in a lease as the ‘tailpiece’.  No interstate cases were (foot)noted or, it would appear, were they drawn to their Honours’ attention.

For our part, we have always favoured ‘sabot’, although there is no published decision using it in this context (despite numerous attempts by the authors to have it adopted by a bench in this state).  A sabot is a French clog carved from wood, which contrasts nicely with ‘chapeau’.  The two words also rhyme when delivered in the firstnamed author’s terrible schoolboy French accent (but not, he hastens to add, in the secondnamed author’s far more refined gallic drawl).

It also appeals to the rebellious undergraduate who lurks within us all, as the artisans who crafted sabots rebelled against the mechanisation of the footwear industry by throwing their sabots into shoe-making machines, which is said to be where we get the words ‘sabotage’ and ‘saboteur’: see https://www.youtube.com/watch?v=F7r1GnG9cQ8.

Which version or other word do you prefer?  Join the debate in the comments below…

Sam Hopper and Callum Dawlings

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^[1] The second author to this post would prefer to retain the terminology recommended by AGLC 4, at 3.1.4, and to refer to the text preceded by (a) to (d) as the respective paragraphs of sub-section (2) of section 37, but he was overruled by the first named author.

^[2] Shahbazian v Owners Corporation SP 56466 [2017] NSWCATCD 83 [52] n1.