Amberdown Pty Ltd v Goldana Investments P/l & Anor [1999] NSWSC 743

Amberdown Pty Ltd v Goldana Investments P/l & Anor [1999] NSWSC 743

Clause 6(a), read with clause 54 and the lease as a whole, permitted separate businesses of pharmacy, post office agency, photographic store and processing agency, rather than only a conglomerate pharmacy. The permitted use of photographic store allowed on-site film development, and the term processing agency did not require off-site processing. The lease executed by the second defendant, except for the reference to fax bureau, was for the same businesses as the plaintiff's photographic store and processing agency and was not merely an overlapping business. Accordingly, the first defendant would breach clause 55 if it leased other premises in the Shopping Centre for that use, the s129...

Jurisdiction
Australia
Judgment Date
27 July 1999
Procedural Posture
Equity Proceedings Concerning Construction of a Lease and Injunctive Relief / Final Hearing After Interlocutory Injunction and Joinder of the Second Defendant
Outcome
Plaintiff succeeded against the first defendant; the first defendant's cross claim was dismissed; inquiry as to damages ordered; further argument reserved as to orders, if any, against the second defendant.
Legal Topics
['construction of Lease' 'permitted Use Clause' 'exclusive Use Covenant' 'injunction' 'retail Shop Lease' 'film Processing in Photographic Store']
['property Law' 'equity' 'contract Law' 'retail Leases'] ['construction of Lease' 'permitted Use Clause' 'exclusive Use Covenant' 'injunction' 'retail Shop Lease' 'film Processing in Photographic Store']

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Procedural Posture

Equity Proceedings Concerning Construction of a Lease and Injunctive Relief / Final Hearing After Interlocutory Injunction and Joinder of the Second Defendant

Legal Issues

  1. 1 ["Whether clause 6(a) of the plaintiff's lease permitted one conglomerate pharmacy business or separate businesses comprising a pharmacy, post office agency, photographic store and processing agency." "Whether the first defendant would breach clause 55 of the plaintiff's lease by leasing shop 22 for the permitted use contained in the lease executed by the second defendant." 'Whether the permitted use of photographic store and processing agency allowed on-site film processing by the plaintiff and whether the s129 Notice was valid.' 'Whether the plaintiff was entitled to injunctive relief and an inquiry as to damages.']

Ratio Decidendi

Clause 6(a), read with clause 54 and the lease as a whole, permitted separate businesses of pharmacy, post office agency, photographic store and processing agency, rather than only a conglomerate pharmacy. The permitted use of photographic store allowed on-site film development, and the term processing agency did not require off-site processing. The lease executed by the second defendant, except for the reference to fax bureau, was for the same businesses as the plaintiff's photographic store and processing agency and was not merely an overlapping business. Accordingly, the first defendant would breach clause 55 if it leased other premises in the Shopping Centre for that use, the s129...

Court Disposition

Plaintiff succeeded against the first defendant; the first defendant's cross claim was dismissed; inquiry as to damages ordered; further argument reserved as to orders, if any, against the second defendant.

Orders

  • ["Declarations and orders to be made as contained in the plaintiff's Amended Summons in paragraphs 1, 2(a), 2(b), 3, 4, 5, 6(a), 6(b), 6(c) and 6(e)." 'An inquiry is to be held as to damages and referred to a Master of the Equity Division of the Court.' "The question of the plaintiff's entitlement to interest and...