Coogee Bay Village Pty Ltd v Profilio (RLD) [2011] NSWADTAP 39

Coogee Bay Village Pty Ltd v Profilio (RLD) [2011] NSWADTAP 39

Clause 4.4 imposed no particular obligation on the appellant and placed no restriction on the unambiguous reference to BWT's customers. Read with cl 4.3, the clauses did no more than oblige the appellant to ensure that the primary use of Shop 194 was as a travel agency. Because the Tribunal found that BWT's primary business in Shop 194 was a travel agency, no breach of the respondents' lease was established.

Jurisdiction
Australia
Judgment Date
07 September 2011
Procedural Posture
Internal Appeal From Retail Leases Division Decision / Appeal
Outcome
Appeal allowed; Tribunal orders set aside; application dismissed.
Legal Topics
['lease Breach' 'exclusive Use Clause' 'construction of Lease' 'extrinsic Evidence' 'internet Café Permitted Use']
['retail Leases' 'contract Law'] ['lease Breach' 'exclusive Use Clause' 'construction of Lease' 'extrinsic Evidence' 'internet Café Permitted Use']

Case Brief

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Procedural Posture

Internal Appeal From Retail Leases Division Decision / Appeal

Legal Issues

  1. 1 ["Whether the appellant breached cl 4.3 of the respondents' 2004 lease by granting BWT a lease of Shop 194 on terms permitting provision of internet and email services." "Whether cl 4.3 and cl 4.4 of the respondents' lease obliged the appellant to restrict internet access in Shop 194 beyond ensuring its primary use remained as a travel agency." 'Whether extrinsic evidence could be used to construe the phrases "internet caf" and "lessees\' customers".']

Ratio Decidendi

Clause 4.4 imposed no particular obligation on the appellant and placed no restriction on the unambiguous reference to BWT's customers. Read with cl 4.3, the clauses did no more than oblige the appellant to ensure that the primary use of Shop 194 was as a travel agency. Because the Tribunal found that BWT's primary business in Shop 194 was a travel agency, no breach of the respondents' lease was established.

Court Disposition

Appeal allowed; Tribunal orders set aside; application dismissed.

Orders

  • ['Appeal allowed.' 'Orders made by Tribunal set aside.' 'In lieu, order that the application be dismissed.' 'Subject to 5, no order as to costs.' 'Leave to the appellant to apply for an order for costs within 21 days accompanied by written submissions. Respondents to reply within 21 days, thereafter matter of costs...