Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14

High Court of Australia Mason, Wilson, Brennan, Deane and Dawson JJ. Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

March 12 Mason J.

This is an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales dismissing an appeal from a decision of Lusher J. in proceedings by the respondent, as owner, for possession of certain factory premises situated in the Sydney suburb of Artarmon. Lusher J. granted the respondent leave to issue a writ of possession and ordered, inter alia, that the appellant pay to the respondent the sum of $85,000 by way of damages in respect of the loss to the respondent, as a consequence of re-entry, of the benefit of covenants contained in a memorandum of lease entered into between the respondent as lessor and the appellant as lessee. The sole question before this Court, as before the Court of Appeal, is whether his Honour was correct in awarding damages.

The factory premises comprised land registered under the Real Property Act 1900 N.S.W.. The memorandum of lease, which was in registrable form but which was not registered, was dated 4 December 1978 and purported to create a term of five years commencing on that date. Clauses 3.1 required the lessee during the whole of the term to pay to the lessor the rent specified in the first schedule. During the relevant period this amounted to $7,750 per month payable monthly. Part 4 of the memorandum of lease dealt with the use of the premises and with sub-letting and assignment of the lease. By cl. 4.2 the lessee covenanted, inter alia, not to do or permit to be done anything which might render any increased premium payable for the insurance of the premises. By cl. 4.7 the lessee was prohibited from assigning or sub-letting the premises without the consent of the lessor. Part 5 imposed on the lessee a number of requirements with regard to the maintenance and repair of the premises and alterations, the principal obligations with regard to alterations being imposed by cl. 5.1 and with regard to maintenance and repair being imposed by cl. 5.2. Clause 5.3 dealt specifically with the lessee's obligation to repair and replace broken glass as well as heating, lighting and electrical equipment.