White Rock Wind Farm Pty Ltd v Dulhunty [2024] NSWCA 202

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: White Rock Wind Farm Pty Ltd v Dulhunty [2024] NSWCA 202 Hearing dates: 14 June 2024 Date of orders: 14 August 2024 Decision date: 14 August 2024 Before: Ward P at [1]; Adamson JA at [2]; Griffiths AJA at [3] Decision: (1) Appeal dismissed. (2) Appellant to pay half the respondents' costs of the appeal. Catchwords: LEASES – whether a sub-clause of the leases entered into between the appellant (lessee) and each of the respondents (lessors), which provided for restrictions on the lessee dealing with its interest and rights/obligations under the leases, applied to the grant of a proposed licence by the lessee to a third party granting access rights – where that sub-clause was contained within a clause dealing with restrictions on assignment of the leases without the relevant lessor's consent LEASES – if the sub-clause applied – whether the lessors unreasonably withheld their consent to the grant of the proposed licence deed CONTRACTS – construction – whether the lessee was entitled to grant the proposed licence without the lessors' consent – where the lessee and lessors had shared rights to use the land the subject of the leases – where the lessee failed to exercise an option granted to it for the creation of an access easement, which would have resolved the issue of access by the third party Legislation Cited: Conveyancing Act 1919 (NSW), s 88K Cases Cited: Central Coast Council v Norcross Pictorial Calendars Pty Ltd [2021] NSWCA 75 Construction Technologies Australia Pty Ltd v Doueihi (No 5) [2018] NSWSC 294 Fulham Partners LLC v National Australia Bank Ltd [2013] NSWCA 296 International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] Ch 513 Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 at 26; [1963] HCA 21 Texts Cited: Nil Category: Principal judgment Parties: White Rock Wind Farm Pty Ltd (Appellant) Robert Venour Dulhunty (First Respondent) John Langley Wood (Second Respondent) John Wood (Harvesting) Pty Ltd (Third Respondent) William Archibald Cameron (Fourth Respondent) James Sidney Nugent (Fifth Respondent) Representation: Counsel: D Barnett / P Abdiel (Appellant) A P Cheshire SC / P Folino-Gallo (Respondents)