Olympic Murals v Sydney Ports Corporation [2000] NSWSC 88

New South Wales Supreme Court

CITATION : Olympic Murals v Sydney Ports Corporation [2000] NSWSC 88 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4085/99 HEARING DATE(S) : 11 November 1999 JUDGMENT DATE : 25 February 2000

PARTIES : Olympic Murals Pty Limited (Plaintiff) Sydney Ports Corporation (Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr M Tobias, QC with him Mr C.R.C. Newlinds (Plaintiff) Mr N.H. Hutley, SC with him Ms S. Pritchard (Defendant) SOLICITORS : Hegarty & Elmgreen (Plaintiff) Allen Allen & Hemsley (Defendant) CATCHWORDS : CONTRACTS - construction and interpretation of contracts - construction of proviso to obligation to surrender a lease - covenant to surrender part of leased premises subject to proviso to grant licence - independent obligation or condition precedent - claim of plaintiff that licence must be granted which is capable of being legally used - HELD the words "may be used" in the proviso do not equate to a guarantee that the licensee can obtain all relevant consents when the lessor is not the consent authority LEGISLATION CITED : Supreme Court Rules Pt 31 r2, r4 CASES CITED : Westacott v Hahn [1918] 1 KB 495 DECISION : See paragraph 9

1 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

FRIDAY 25 FEBRUARY 2000

4085/99 OLYMPIC MURALS PTY LIMITED v SYDNEY PORTS CORPORATION

JUDGMENT 1 The question for decision involves a determination of whether on its proper construction a clause in a lease between the plaintiff, Olympic Murals Pty Limited (Olympic Murals) and the defendant, Sydney Ports Corporations (SPC), authorised the defendant to require the surrender of part of the leased land at the expiration of a twelve months period of notice during the term of a lease, without the proviso to such right having been complied with either prior to surrender or prior to expiration of the twelve months. It also involves a question of construction of the proviso. Facts 2 By lease registered number 3142833, dated 3 September 1997, SPC leased to Olympic Murals certain premises which are best described as the outer face of certain bulk silo buildings on land belonging to SPC close to the Anzac Bridge. The lease was for a period commencing on 16 December 1996 and ending on 30 September 2010. The premises the subject of the lease were divided into areas called Areas A, B, C and D. The permitted use of the leased premises under the lease is: Painting of Murals and erection of Metal Planks, Signs and ancillary structures and lighting for advertising purposes.