Skiwing Pty Ltd trading as Cafe Tiffanys v Trust Company of Australia Limited [2002] NSWADT 278

Skiwing Pty Ltd trading as Cafe Tiffanys v Trust Company of Australia Limited [2002] NSWADT 278

On the proper construction of the Lease, having regard to the parties' conduct and the factual context, the Lessor had given consent under the express lease provisions for the Lessee to display the signs, and that consent was intended to continue for the term of the Lease subject to practical constraints concerning public safety, pedestrian traffic, location, and appropriate design and style standards. The Lessor was therefore not entitled simply to withdraw the consent at will or by the purported withdrawal relied upon.

Jurisdiction
Australia
Judgment Date
23 December 2002
Procedural Posture
Retail Tenancy Claim; Claim for Declaration of Rights, Obligations and Liabilities Under a Lease / Principal Matter; Full Determination of Liability Issue Concerning the Right of the Lessee to Place Signs, With Consequential Damages Stood Over
Outcome
The Lessee was declared entitled to display signs subject to specified times, locations, relocation rights, and design and style requirements; the matter was adjourned pending any amendment to seek compensation for removal of the signs since October 2002.
Legal Topics
['consent Under Lease' 'use of Common Areas' 'signage in Shopping Arcade' 'estoppel by Convention' 'equitable Estoppel' 'waiver' 'acquiescence' 'implied Terms' 'construction of Lease']
['retail Leases' 'property Law' 'equity' 'contract Law'] ['consent Under Lease' 'use of Common Areas' 'signage in Shopping Arcade' 'estoppel by Convention' 'equitable Estoppel' 'waiver' 'acquiescence' 'implied Terms' 'construction of Lease']

Case Brief

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Procedural Posture

Retail Tenancy Claim; Claim for Declaration of Rights, Obligations and Liabilities Under a Lease / Principal Matter; Full Determination of Liability Issue Concerning the Right of the Lessee to Place Signs, With Consequential Damages Stood Over

Legal Issues

  1. 1 ['Whether the Lessee was entitled to continue placing advertising signs at the Pitt Street entrance at lunchtime and at the Pitt Street and Castlereagh Street entrances in the evening.' "Whether the Lessor was estopped by convention, equitable estoppel, acquiescence or waiver from denying the Lessee's right to display signs in the common areas." 'Whether there was an implied term of the Lease permitting placement of the signs.' 'Whether consent given under the express terms of the Lease was revocable at will, revocable on reasonable notice, or continued for the duration of the Lease subject to practical constraints.']

Ratio Decidendi

On the proper construction of the Lease, having regard to the parties' conduct and the factual context, the Lessor had given consent under the express lease provisions for the Lessee to display the signs, and that consent was intended to continue for the term of the Lease subject to practical constraints concerning public safety, pedestrian traffic, location, and appropriate design and style standards. The Lessor was therefore not entitled simply to withdraw the consent at will or by the purported withdrawal relied upon.

Court Disposition

The Lessee was declared entitled to display signs subject to specified times, locations, relocation rights, and design and style requirements; the matter was adjourned pending any amendment to seek compensation for removal of the signs since October 2002.

Orders

  • ['The Lessee be entitled to display a sign advertising its business at the Pitt Street entrance to the Imperial Arcade between 12 p.m. and 2 p.m. and at the Pitt Street and Castlereagh Street entrances from 6 p.m. till the close of its business.' 'The specific locations are at or near those previously designated by...