Testarossa Pty Ltd v Portrich 2 Pty Ltd [2007] NSWSC 738

Testarossa Pty Ltd v Portrich 2 Pty Ltd [2007] NSWSC 738

The plaintiff had a sufficiently arguable case that the proposed sale of three poker machine entitlements might breach the lease covenant against impairing, prejudicing or reducing the value of the licensed premises, licence or business. The construction issue was not determined because it might be affected by facts not yet in evidence. Damages were not shown to be an adequate remedy, and the balance of convenience favoured preserving the status quo because the landlord had the benefit of a covenant, that benefit could possibly be lost if the transaction proceeded, and there was no evidence that the transaction had to be completed urgently.

Jurisdiction
Australia
Judgment Date
09 July 2007
Procedural Posture
Equity Division Landlord and Tenant Lease Dispute Concerning Hotel Lease Covenant / Application for Interlocutory Injunction
Outcome
Interlocutory injunction granted.
Legal Topics
['interlocutory Injunction' 'lease Covenant' 'hotel Lease' 'poker Machine Entitlements' 'balance of Convenience' 'adequacy of Damages']
['equity' 'landlord and Tenant'] ['interlocutory Injunction' 'lease Covenant' 'hotel Lease' 'poker Machine Entitlements' 'balance of Convenience' 'adequacy of Damages']

Case Brief

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Procedural Posture

Equity Division Landlord and Tenant Lease Dispute Concerning Hotel Lease Covenant / Application for Interlocutory Injunction

Legal Issues

  1. 1 ['Whether the plaintiff had an arguable case that sale of three poker machine entitlements would breach cl 6.14.3.4 of the Current Lease.' 'Whether the balance of convenience favoured restraining the proposed sale until final hearing.' 'Whether damages would be an adequate remedy if the proposed transaction proceeded.']

Ratio Decidendi

The plaintiff had a sufficiently arguable case that the proposed sale of three poker machine entitlements might breach the lease covenant against impairing, prejudicing or reducing the value of the licensed premises, licence or business. The construction issue was not determined because it might be affected by facts not yet in evidence. Damages were not shown to be an adequate remedy, and the balance of convenience favoured preserving the status quo because the landlord had the benefit of a covenant, that benefit could possibly be lost if the transaction proceeded, and there was no evidence that the transaction had to be completed urgently.

Court Disposition

Interlocutory injunction granted.

Orders

  • ['Upon the plaintiff by its counsel giving the usual undertaking as to damages, order 4 in the summons was made until further order.' 'The costs of the application are costs in the cause.' 'Directions were to be made for filing and serving affidavits and otherwise moving the proceedings towards final hearing.']