Goldana Investments Pty Ltd v Amberdown Pty Ltd [2000] NSWCA 46

Reported Decision : [2000] 10 BPR 18,001 [2001] NSW ConvR 55-982

New South Wales Court of Appeal

CITATION : Goldana Investments Pty Ltd v Amberdown Pty Ltd [2000] NSWCA 46 FILE NUMBER(S) : CA 40676/99 HEARING DATE(S) : 15/02/00 JUDGMENT DATE : 16 March 2000

Goldana Investments Pty Limited (Appellant) PARTIES : Amberdown Pty Limited (First Respondent) Trung Hung Luong (Second Respondent) JUDGMENT OF : Priestley JA at 1; Beazley JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT ED 2640/99 FILE NUMBER(S) : LOWER COURT Bergin J JUDICIAL OFFICER :

COUNSEL : J.C. Kelly SC / V. Kerr (Appellant) G.C. Lindsay SC / J.E. Armfield (1st Respondent) Phillip Anthony Biber (Appellant) SOLICITORS : C.P. White & Sons (Burwood) (1st Respondent) Davidson James & Associates (2nd Respondent) CATCHWORDS : Lease of retail shop - Leases - whether "photographic store and processing agency" is included in permitted use - whether another shop has been leased with the same permitted use in breach of the lease - what is the appropriate term of relief DECISION : Appeal allowed in part. Injunction granted by the trial judge restraining registration of the lease of shop 22 and her Honour's order for an inquiry as to the damages sustained by the first respondent by reason of the grant of that lease set aside.; Appeal otherwise dismissed. However, form of the orders which the trial judge made to protect the first respondent's use of the minilab in shop 9 varied as follows; The orders below are set aside and the following orders made:; "(a) The Court declares that; (i) Upon the true construction of Lease Registered No. 0313916:; (a) the respondent's use of a minilab for the purpose of processing films and printing photographs in shop 9 is not a breach of clause 6; and; (b) the appellant's grant of a lease dated 31 May 1999 to the second respondent was not a breach of clause 55; and; (ii) the notice given by the appellant to the respondent in respect of its use of a minilab in shop 9 is of no effect.; (b) The appellant by itself its servants and agents is restrained from taking any step to forfeit Lease Registered No. 0313916 by reason of the respondent's use of a minilab for the purpose of processing film and printing photographs in shop 9."; The respondent is ordered to pay the costs of the appeal. No order for the costs of the trial unless an application is made, supported by written submissions, within 7 days.