P Vlahakis Pty Ltd v Bevillesta Pty Ltd [2011] NSWADT 166

P Vlahakis Pty Ltd v Bevillesta Pty Ltd [2011] NSWADT 166

Although each party had a reasonably arguable case about whether there was a binding agreement permitting forklift use, the real risk of collision, property damage, personal injury and occupational health and safety exposure from forklift use in the loading dock significantly outweighed the Applicant's inconvenience from being unable to use it. The Applicant was not prevented from carrying on its business, and damages would adequately compensate any proven loss if it ultimately established breach of a binding agreement. The appropriate interim order was therefore to restrain the Applicant from using a forklift anywhere within the Harbourside Shopping Centre, with costs reserved.

Jurisdiction
Australia
Judgment Date
08 July 2011
Procedural Posture
Retail Tenancy Claim Under S70 of the Retail Leases Act 1994 / Interlocutory Applications for Urgent Interim Orders Pending Final Determination of the Original Proceedings
Outcome
Interim order made restraining the Applicant from using a forklift within the Harbourside Shopping Centre; costs of the interim applications reserved.
Legal Topics
['interim Orders' 'retail Tenancy Claim' 'use of Forklift in Shopping Centre Loading Dock' 'balance of Prejudice or Inconvenience' 'adequacy of Damages' 'costs Reserved']
['retail Leases' 'civil Procedure' 'occupational Health and Safety'] ['interim Orders' 'retail Tenancy Claim' 'use of Forklift in Shopping Centre Loading Dock' 'balance of Prejudice or Inconvenience' 'adequacy of Damages' 'costs Reserved']

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Procedural Posture

Retail Tenancy Claim Under S70 of the Retail Leases Act 1994 / Interlocutory Applications for Urgent Interim Orders Pending Final Determination of the Original Proceedings

Legal Issues

  1. 1 ['Whether interim orders should be made permitting the Applicant to use, park and recharge a forklift at the Harbourside Shopping Centre pending final determination.' 'Whether interim orders should be made preventing the Applicant from using a forklift anywhere within the shopping centre pending final determination.' 'Whether the prejudice or inconvenience to the Respondent from permitting forklift use outweighed the prejudice or inconvenience to the Applicant from preventing it.' 'Whether damages would be an adequate alternative remedy if the Applicant ultimately established a binding agreement permitting forklift use.' 'Whether costs of the interim applications should be ordered at this stage or reserved.']

Ratio Decidendi

Although each party had a reasonably arguable case about whether there was a binding agreement permitting forklift use, the real risk of collision, property damage, personal injury and occupational health and safety exposure from forklift use in the loading dock significantly outweighed the Applicant's inconvenience from being unable to use it. The Applicant was not prevented from carrying on its business, and damages would adequately compensate any proven loss if it ultimately established breach of a binding agreement. The appropriate interim order was therefore to restrain the Applicant from using a forklift anywhere within the Harbourside Shopping Centre, with costs reserved.

Court Disposition

Interim order made restraining the Applicant from using a forklift within the Harbourside Shopping Centre; costs of the interim applications reserved.

Orders

  • ['The Applicant P Vlahakis Pty Ltd is not itself, by its officers, employees or agents to use a forklift within the loading dock at, or anywhere else within the premises known as Harbourside Shopping Centre, Darling Harbour New South Wales.' 'Costs of the interim applications are reserved. Either party may apply for...