Arndale (Kilkenny) Pty Ltd v Gaetjens

High Court of Australia Barwick CJ McTiernan, Menzies, Windeyer and Walsh JJ. Arndale (Kilkenny) Pty Ltd v Gaetjens

ORDER Appeal dismissed with costs.

Judgment reserved.

Nov. 10. Barwick CJ and Menzies J.

The appellant, the owner of the Arndale shopping centre, has been restrained at the suit of certain tenants of shops in the centre from erecting stalls in the pedestrian mall of the shopping centre so as to deprive the plaintiffs from using or enjoying the areas which such stalls would occupy.

It is from the order of the learned Chief Justice of the Supreme Court of South Australia [(1)] so restraining it that the unsuccessful defendant has appealed to this Court.

1. (1969) 20 L.G.R.A. 21.

The tenants rely upon the following provisions of leases in common form:

"ARNDALE (KILKENNY) PROPRIETARY LIMITED DOTH HEREBY LEASE" to the tenant "ALL THOSE premises forming part of the Shopping Centre known as "The Arndale Centre, Kilkenny" erected on part of the land comprised and described in the aforesaid Certificates of Title and being the premises more particularly described in the plan deposited in the General Registry Office at Adelaide numbered 272 of 1964 and therein referred to as Shop No. 15 and being portion of C/T 3169/74 together with all the plant and equipment fixtures and fittings of the Lessor therein (all of which are, except where there is something in the subject or context inconsistent therewith, included in the expression "the demised premises" or "the premises") AND ALSO TOGETHER WITH the right at all times during the said term for the Lessee and its permitted assigns and its or their servants employees tenants occupiers customers and invitees during usual business hours to use and enjoy the common areas (as hereinafter defined) and being other portion of C/T 3169/74 and the whole of Cs/T 3117/57 and 3116/151 in common with the Lessor and its assigns and its and their servants employees lessees tenants occupiers customers invitees and all other persons authorised by it or them TO BE HELD by the Lessee as Lessee for the term of ten years commencing from and including the 1st day of December 1963" at stated rentals.