CONOID PTY. LIMITED & ANOR. v INTERNATIONAL THEME PARK PTY. LIMITED [1999] NSWSC 1138

New South Wales Supreme Court CITATION : CONOID PTY. LIMITED & ANOR. v INTERNATIONAL THEME PARK PTY. LIMITED [1999] NSWSC 1138 CURRENT JURISDICTION : EQUITY FILE NUMBER(S) : 2247/99 HEARING DATE(S) : 1 and 2 July 1999 JUDGMENT DATE : 26 November 1999

PARTIES : CONOID PTY. LIMITED & PLANGLOSS PTY. LIMITED. (Plaintiffs) INTERNATIONAL THEME PARK PTY. LIMITED (Defendant) JUDGMENT OF : Simos J

COUNSEL : BAJ Coles, QC, and MA Ashhurst (Plaintiffs) DP Robinson (Defendant) SOLICITORS : Landerer & Company (Plaintiffs) Baker & McKenzie (Defendant) CATCHWORDS : Retail Leases Act 1994 - Concession agreements within theme park authorising plaintiffs (concessionaires) to take photos of visitors to theme park during rides and elsewhere in theme park and to sell photos and other items (certificates as to meanings of christian or first names, copies of personalised front page of fictitious newspaper and temporary tattoos) from premises within theme park - "Retail Shop" - Premises used by plaintiffs for the carrying on of the business of "Souvenir Shops" but not for the carrying on of the business of "Gift Shops", "Nick-Nack Shops", "Prints and Posters Shops" or "Wall Decorations Shops" within the meaning of Schedule 1 of the Act - Premises were accordingly "Retail Shops" -" Retail Shop Lease" - Plaintiffs had been granted non-exclusive right of occupation of premises for purpose of use as retail shops - Concession agreements were retail shop leases - Term of each retail shop lease prima facie extended to five years (section 16) - "Head Lease" - Head lease of retail shops terminable on one month's notice without breach - Termination of head lease effective to terminate sub-lease without breach - Prima facie extension of terms of retail shop leases to five years inconsistent with terms of head lease of retail shops - Section 16 not applicable to retail shop leases (section 16(5)) - Terms of retail shop leases not extended to five years Lee v Ferno Holdings Pty. Ltd. (1993) 33 NSWLR 404 Masters v Cameron (1954) 91 CLR 353 CASES CITED : Metropolitan Trade Finance Co. Pty. Ltd. v Coumbis (1973) 131 CLR 396 Oxley v James 153 ER 87 Wilson v Jolly (1948) 48 SR (NSW) 460 DECISION : Proceedings dismissed with costs.