Ideas Factory Advertising Pty Ltd v Mayfield Yarra Pty Ltd [1987] FCA 541

FOR LIMITED DISTRIBUTICN

"JUDGMENT No. S41 /-21 -

IN FED! COURT OF AUSTRALIA

) ) VICTORIA DISTRICT REGISTRY ) VG No. 188 of 1987 ) GENERAL DIVISION )

Between: IDEAS FACTORY ADVERTISING

PTY. LTD. (Applicant)

And: MAYFIELD YARRA PTY. LTD.

(Respondent )

Coram: Ryan J.

Date: 9 October 1987

AUSTRALIA

REASONS FOR JUDGMENT ' PRINCIPAL

By motion on notice dated 14 August 1987, the respondent, Mayfield Yarra Pty. Ltd., has sought possession of part of the premises at 3-21 Mayfield Street, Abbotsford, of which it is the registered proprietor. The applicant, Ideas Factory Advertising Pty. Ltd., presently occupies that part of the property known as 19-21 Mayfield Street by virtue of a lease executed on 12 June 1986. That lease is expressed to commence on 28 May 1986 and to continue for aterm of

"Five years and the broken period to 1 June 1991".

It appears that the part of the premises occupied by the applicant is divided into two floors, of which the upper

floor is currently used as office space. Although the lease

P ren '- F \ Ore 13 0CT 1987

« FEDERAL COURT OF

was expressed to commence on 28 May 1986, it stipulated that the respondent would allow certain "rent free" periods, after which a rental of $3125 per calendar month would be payable for each of the two floors. In respect of the first floor this period was for six weeks to 9 July 1986, and for the ground floor it was to be until 28 September 1986. From that later date a total of $6250 per calendar month became payable for the whole premises. It was further stipulated that the rent would be reviewed on 1 June of each year, and for the financial year beginning 1 July 1987 the rent would rise to

$6950 a month.

In the substantive application, the applicant has sought, inter alia, orders declaring the lease "to be void ab initio, or, alternatively, to have been void as and from such date as the court may specify in its order". It has pleaded that it was induced to enter into the lease as a result of a representation by the respondent that the premises could lawfully be used as offices. It has alleged that' the respondent, in making that representation, has engaged in conduct in breach of 3.52 of the Trade Practices Act 1974 Cth. ("the Act"), as only 15% of the space leased could be so used in accordance with a planning permit in force in respect of the premises. The applicant further claims that the permitted use of part of the premises as offices was restricted to the use of offices ancillary to a principal use