Downing v WIN Television (NSW) Pty Ltd & Ors [2010] NSWSC 1132

Downing v WIN Television (NSW) Pty Ltd & Ors [2010] NSWSC 1132

The 18 January 1989 agreement was a licence rather than an agreement for lease because it used licence language, did not confer exclusive possession over a precisely defined area, and was inconsistent with statutory requirements for a long lease. WIN was permitted to erect the tower, associated buildings and fence, but the licence did not permit sublicensing to third parties. WIN’s sublicensing was a breach entitling termination, but did not make WIN a trespasser until after Mr Downing Jnr, as purchaser with knowledge of WIN’s occupation, gave notice and a reasonable time to vacate had expired. A reasonable time expired at the end of June 1999. Prime and the State had no licence from the...

Jurisdiction
Australia
Judgment Date
21 October 2010
Procedural Posture
Principal Judgment / Hearing on Liability Only
Outcome
Declarations proposed; parties to be heard on the precise form of orders and costs.
Legal Topics
['interpretation of Agreement as Lease or Licence' 'licence Binding on Subsequent Purchaser' 'right to Sublicense' 'fixtures' 'rectification and Variation' 'trespass to Land' 'executor Obligations' 'exemplary Damages']
['contract' 'property' 'torts' 'remedies' 'wills and Estates'] ['interpretation of Agreement as Lease or Licence' 'licence Binding on Subsequent Purchaser' 'right to Sublicense' 'fixtures' 'rectification and Variation' 'trespass to Land' 'executor Obligations' 'exemplary Damages']

Case Brief

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Procedural Posture

Principal Judgment / Hearing on Liability Only

Legal Issues

  1. 1 ['Whether the 18 January 1989 agreement was a licence or an agreement for lease.' 'Whether WIN had a right to build the transmission tower, equipment shelter and fence and to sublicense use of the facilities to third parties.' 'Whether the agreement was varied or should be rectified.' 'Whether WIN had proprietary or enforceable rights against Mr Downing Jnr as purchaser of Nooga or against the executors.' 'Whether WIN, Prime and the State were trespassers and from what dates.' 'Whether Mr Downing was entitled to exemplary damages.' 'Whether the transmission tower and building were fixtures or chattels.']

Ratio Decidendi

The 18 January 1989 agreement was a licence rather than an agreement for lease because it used licence language, did not confer exclusive possession over a precisely defined area, and was inconsistent with statutory requirements for a long lease. WIN was permitted to erect the tower, associated buildings and fence, but the licence did not permit sublicensing to third parties. WIN’s sublicensing was a breach entitling termination, but did not make WIN a trespasser until after Mr Downing Jnr, as purchaser with knowledge of WIN’s occupation, gave notice and a reasonable time to vacate had expired. A reasonable time expired at the end of June 1999. Prime and the State had no licence from the...

Court Disposition

Declarations proposed; parties to be heard on the precise form of orders and costs.

Orders

  • ["The first defendant is and has since 1 July 1999 been trespassing on the plaintiff's land." "The second and third defendants are and have been since 15 June 1998 trespassing on the plaintiff's land." "The defendants are not lawfully permitted to access the plaintiff's land except that the first defendant is...