Becklay Pty Limited v A. R. J. Freight Pty Limited [2003] NSWSC 155

New South Wales Supreme Court

CITATION : Becklay Pty Limited v A. R. J. Freight Pty Limited [2003] NSWSC 155 HEARING DATE(S) : 20 February 2003 JUDGMENT DATE : 20 February 2003 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Injunction refused

CATCHWORDS : PROCEDURE - Supreme Court procedure - action seeking possession of land already on foot in Common Law Division Possession List - fresh action started in Equity Division seeking similar relief - whether interlocutory injunction should be granted to prevent interference with lessor retaking possession of premises - significance of proceedings already being on foot in Possession List for grant of interlocutory injunction - EQUITY - equitable remedies - interlocutory injunction - balance of convenience - relevance of Court's own procedures Batiste v Lenin [2002] NSWSC 233 CASES CITED : Bishop v Moy [1963] NSWR 468 Georgeson v Palmos (1962) 106 CLR 578 Becklay Pty Limited - Plaintiff/Cross-Defendant PARTIES : A.R.J. Freights Pty Limited - First Defendant/Cross-Claimant John Cecil O'Donnell - Second Defendant/Second Cross-Claimant Anne Kathleen O'Loan - Third Defendant FILE NUMBER(S) : SC 1329/03 COUNSEL : L J Aitken - Plaintiff/Cross-Defendant R J Horsley - Defendants/Cross-Claimants SOLICITORS : Horowitz & Bilinsky - Plaintiff/Cross-Defendant Clarks Business & Property Lawyers - Defendants/Cross-Claimants

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

THURSDAY 20 FEBRUARY 2003

1329/03 BECKLAY PTY LIMITED v A.R.J. FREIGHTS PTY LIMITED JUDGMENT 1 HIS HONOUR: This is the hearing of a notice of motion that seeks an interlocutory injunction restraining the defendant from preventing the plaintiff from regaining possession of some premises situated at 10 Ocean Street, Botany. 2 Those premises were leased by the plaintiff to the defendant, pursuant to a lease entered for four years, to commence on 12 October 1997 and end on 11 March 2001. 3 That lease contained an option. The option clause provided that if the lessee wanted a further lease of the premises, he had to give the lessor notice in writing to that effect not more than three months and not less than six months prior to the termination date and, provided that at the date of the exercise of the option by the lessee and at the termination date there was no subsisting breach of the lease, a new lease would be granted on the same terms as the lease originally granted, subject to some alterations which are not presently relevant. 4 On 17 November 2000, that is, within the window of time falling between the six months and three months prior to the expiration of the lease, the lessee sent to the lessor's solicitors a fax saying: "Notice is given today 17/11/00 that I will be taking up my option (4 years) on the property at 10 Ocean Street, Botany. Please discuss this matter with Mr Matalon as quite a number of changes must take place. When agreement is reached I will forward to my lawyers that confirmation."