Project Blue Moon Pty Ltd v Fairway Trading Pty Ltd [2000] FCA 127

Project Blue Moon Pty Ltd v Fairway Trading Pty Ltd [2000] FCA 127

Fairway did not derogate from its grant because the ambit of Blue Moon's sublease was qualified by clause 7: Blue Moon was prohibited from using the premises so as to cause nuisance, annoyance or disturbance to other tenants, and the permitted use as a brasserie in conjunction with a bar did not override that limitation. Any implied obligation preventing Fairway from subletting adjacent premises to tenants who might object to loud music or trade later was inconsistent with the express terms, including clause 7(1) and clause 7(5). The Tribunal's contrary conclusion involved errors of law in construing clause 7. Fairway's grant of the Nipero sublease was not unconscionable because Blue Moon...

Jurisdiction
Australia
Judgment Date
18 February 2000
Procedural Posture
Appeal Concerning Landlord and Tenant, Derogation From Grant, and Conduct Under the Commercial and Retail Leases Code of Practice / Full Court Appeal From Orders Setting Aside the Tenancy Tribunal Decision; Appeal Dismissed
Outcome
Appeal dismissed with costs.
Legal Topics
['derogation From Grant' 'construction of Lease' 'implied Terms' 'commercial and Retail Leases Code of Practice' 'unconscionable Conduct' 'harsh and Oppressive Conduct' 'appeal on Question of Law']
['landlord and Tenant' 'contract Law' 'equity' 'administrative Law'] ['derogation From Grant' 'construction of Lease' 'implied Terms' 'commercial and Retail Leases Code of Practice' 'unconscionable Conduct' 'harsh and Oppressive Conduct' 'appeal on Question of Law']

Case Brief

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Procedural Posture

Appeal Concerning Landlord and Tenant, Derogation From Grant, and Conduct Under the Commercial and Retail Leases Code of Practice / Full Court Appeal From Orders Setting Aside the Tenancy Tribunal Decision; Appeal Dismissed

Legal Issues

  1. 1 ["Whether the Tribunal's decision on derogation involved a question of law because it turned on the construction of clause 7 of the sublease." "Whether Fairway derogated from its grant to Blue Moon by granting a sublease to Nipero for use as a café and bar likely to conflict with Blue Moon's use involving loud music at night." "Whether an obligation could be implied restraining Fairway from subletting adjacent premises to tenants who might object to loud music or trade after the café's former usual closing time." "Whether Fairway's conduct was unconscionable under clause 13(a) of the Commercial and Retail Leases Code of Practice." "Whether Fairway's conduct was harsh and oppressive under clause 13(c) of the Commercial and Retail Leases Code of Practice." "Whether the primary judge was empowered under s 58(3) of the Tenancy Tribunal Act 1994 (ACT) to set aside the Tribunal's orders and dismiss Blue Moon's proceeding."]

Ratio Decidendi

Fairway did not derogate from its grant because the ambit of Blue Moon's sublease was qualified by clause 7: Blue Moon was prohibited from using the premises so as to cause nuisance, annoyance or disturbance to other tenants, and the permitted use as a brasserie in conjunction with a bar did not override that limitation. Any implied obligation preventing Fairway from subletting adjacent premises to tenants who might object to loud music or trade later was inconsistent with the express terms, including clause 7(1) and clause 7(5). The Tribunal's contrary conclusion involved errors of law in construing clause 7. Fairway's grant of the Nipero sublease was not unconscionable because Blue Moon...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellants pay the respondent's costs of the appeal."]