The Trust Company (Australia) Ltd in its capacity as custodian of The Asia Pacific Data Centre Trust v NEXTDC Limited [2018] NSWSC 1361

The Trust Company (Australia) Ltd in its capacity as custodian of The Asia Pacific Data Centre Trust v NEXTDC Limited [2018] NSWSC 1361

The proposed declarations concerning the construction and operation of the lease access clauses were hypothetical, academic and inutile because the Landlord had been given access, there was no extant access request and no refusal, and no alleged breach requiring determination. The proposed declaration concerning the August 2018 access events would unfairly prejudice the Tenant if introduced late and was futile because it concerned past history and would not quell any real existing dispute. The Court therefore refused declaratory relief and dismissed the proceedings.

Jurisdiction
Australia
Judgment Date
04 September 2018
Procedural Posture
Equity Real Property List Proceeding Seeking Declaratory Relief Concerning Landlord Access Rights Under Leases / Final Hearing After Dismissal of Interlocutory Injunction Application; Application to Amend Summons Considered
Outcome
The proceedings were dismissed; declaratory relief was refused; leave to amend to seek the third proposed declaration was refused.
Legal Topics
['declaratory Relief' 'lease Construction' 'access to Leased Premises' 'hypothetical Dispute' 'advisory Opinions' 'amendment of Summons']
['equity' 'real Property' 'landlord and Tenant' 'civil Procedure'] ['declaratory Relief' 'lease Construction' 'access to Leased Premises' 'hypothetical Dispute' 'advisory Opinions' 'amendment of Summons']

Case Brief

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Procedural Posture

Equity Real Property List Proceeding Seeking Declaratory Relief Concerning Landlord Access Rights Under Leases / Final Hearing After Dismissal of Interlocutory Injunction Application; Application to Amend Summons Considered

Legal Issues

  1. 1 ['Whether the Court should make declarations as to the true construction and operation of lease clauses 8.2(a), 12.2 and 12.4 where there was no extant request for access and no refusal of access.' 'Whether the plaintiffs should have leave to amend to seek a declaration concerning access given in August 2018.' 'Whether proposed declarations about implied terms of good faith and reasonableness would be hypothetical, academic or advisory.']

Ratio Decidendi

The proposed declarations concerning the construction and operation of the lease access clauses were hypothetical, academic and inutile because the Landlord had been given access, there was no extant access request and no refusal, and no alleged breach requiring determination. The proposed declaration concerning the August 2018 access events would unfairly prejudice the Tenant if introduced late and was futile because it concerned past history and would not quell any real existing dispute. The Court therefore refused declaratory relief and dismissed the proceedings.

Court Disposition

The proceedings were dismissed; declaratory relief was refused; leave to amend to seek the third proposed declaration was refused.

Orders

  • ['The proceedings are dismissed.' 'The exhibits are to be returned.']