Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2007] FCA 708

FEDERAL COURT OF AUSTRALIA

Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2007] FCA 708

CONTRACT – Landlord and tenant – Lease – Breach of lease agreement – Alteration of premises – Whether the Respondent obtained the requisite consent of the applicant to alter the premises pursuant to clause 2.13 of the Lease – Consent not obtained

CONTRACT – Lease – Rectification – Common Intention of parties – Reinstatement clause in heads of agreement not appearing in final executed lease – Whether Landlord entitled to rectification of clause – Whether parties laboured under a common mistake that the lease contained a general "make good" clause in the terms appearing in heads of agreement

TRADE PRACTICES – Misleading or deceptive conduct – Unconscionable conduct – Damages under Trade Practices Act – Action for damages to be commenced within six years after cause of action accrued – Any loss or damage crystallised at the time alteration to premises occurred in July and August 1997 – Causes of action statute barred

TORTS – Waste – Whether respondent has committed a voluntary waste – Action for damages in tort to be commenced within six years after cause of action accrued – Cause of action statute barred DAMAGES – Appropriate measure of damage – Onus on Landlord to prove actual damage suffered – No diminution to value of building – Compensatory damages awarded for restoration of foyer to its original proportions – Nominal damages awarded for Respondent's failure to abide by its obligations under clause 2.13 of the lease

Trade Practices Act 1974 (Cth) ss 51AA, 51AC, 52, 53, 82 Limitation of Actions Act 1958 (Vic) s 5 Judiciary Act s 79

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 considered Blomley v Ryan (1956) 99 CLR 362 referred to Evans v Balog [1976] 1 NSWLR 36 cited Hurley v McDonalds Australia Ltd [1999] FCA 1728 referred to James v Hutton [1949] 2 All ER 243 applied Joscelyne v Nissen [1970] 2 QB 86 referred to Joyner v Weeks [1891] 2 QB 31 cited Marsden v Edward Heyes Ltd [1927] 2 KB 1 cited Murray v Parker (1854) 19 Beav 305 cited Pukallus v Cameron (1982) 180 CLR 447 referred to Thomas Bates and Son Limited v Wyndham's (Lingerie) Ltd [1981] 1 WLR 505 referred to Waltons Stores (Interstate) Ltd v Maher (1998) 164 CLR 387 cited Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 referred to