Digital Eskimo Pty Ltd v Hanave Pty Ltd [2008] NSWSC 438

Digital Eskimo Pty Ltd v Hanave Pty Ltd [2008] NSWSC 438

The Plaintiff did not show a sufficiently compelling serious question to be tried on the alleged implied monthly tenancy, misleading or deceptive conduct, or unconscionable conduct. However, there was a serious question to be tried that the Plaintiff's failure to vacate was caused by the Defendant's breach of its covenant to keep the lift in repair. The balance of convenience supported only a seven-day restraint from retaking possession after certification that the lift was operational, not the one-month injunction sought. Because the Defendant offered undertakings in those terms, the Court accepted the undertakings in lieu of granting an injunction.

Jurisdiction
Australia
Judgment Date
30 April 2008
Procedural Posture
Application for Injunction / Interlocutory Application on Summons and Notice of Motion
Outcome
Undertakings accepted in lieu of granting an injunction; costs reserved.
Legal Topics
['interlocutory Injunction' 'commercial Lease' 'holding Over' 'breach of Covenant to Repair' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'undertaking to the Court']
['equity' 'property Law' 'trade Practices'] ['interlocutory Injunction' 'commercial Lease' 'holding Over' 'breach of Covenant to Repair' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'undertaking to the Court']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Injunction / Interlocutory Application on Summons and Notice of Motion

Legal Issues

  1. 1 ['Whether the Plaintiff had a serious question to be tried that clause 4(b) of the lease created an implied monthly tenancy because the Defendant failed to keep the lift operational.' 'Whether alleged misleading or deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth) justified relief under s 87 effectively extending or rewriting the lease.' 'Whether alleged unconscionable conduct in the formation of the lease supported the injunction sought.' 'Whether the balance of convenience justified restraining the Defendant from retaking possession after expiry of the lease, and for what period.']

Ratio Decidendi

The Plaintiff did not show a sufficiently compelling serious question to be tried on the alleged implied monthly tenancy, misleading or deceptive conduct, or unconscionable conduct. However, there was a serious question to be tried that the Plaintiff's failure to vacate was caused by the Defendant's breach of its covenant to keep the lift in repair. The balance of convenience supported only a seven-day restraint from retaking possession after certification that the lift was operational, not the one-month injunction sought. Because the Defendant offered undertakings in those terms, the Court accepted the undertakings in lieu of granting an injunction.

Court Disposition

Undertakings accepted in lieu of granting an injunction; costs reserved.

Orders

  • ["The Defendant was to file an affidavit from a responsible and qualified lift mechanic that the lift in the premises was fully operational and could safely be used for removal of the Plaintiff's goods and effects." 'The Defendant undertook to procure a lift maintenance mechanic to be in attendance for seven days...