South Dowling v Cody Outdoor Advertising [2005] NSWSC 391

New South Wales Supreme Court

CITATION : South Dowling v Cody Outdoor Advertising [2005] NSWSC 391

HEARING DATE(S) : 18 April 2005

JUDGMENT DATE : 2 May 2005

JUDGMENT OF : McDougall J at 1

DECISION : See para [73] of judgment

CATCHWORDS : CONTRACT - construction of Licence Agreement - what obligations cl 7 imposed on the licensor - whether cl 7 was a condition or a warranty - whether cl 7 was breached - no question of principle

LEGISLATION CITED : Environmental Planning and Assessment Act 1979

Ankar Pty Ltd v National Westminster Finance Limited (1987) 162 CLR 549 Associated Newspapers Limited v Bancks (1951) 83 CLR 322 CASES CITED : Burger King Corporation v Hungry Jack's Pty Limited [2001] NSWCA 187 DTR Nominees Ltd v Mona Homes Pty Ltd (1978) 138 CLR 430 Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) NSWLR 633

South Dowling Pty Limited (formerly known as Healthconnectiv Holdings Pty Limited) (Plaintiff) PARTIES : Cody Outdoor Advertising Pty Limited (Defendant)

FILE NUMBER(S) : SC 2697/03

J B Simpkins SC (Plaintiff) COUNSEL : N J Kidd (Defendant)

Home Wilkinson Lowry (Plaintiff) SOLICITORS : Allens Arthur Robinson (Defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

McDOUGALL J

Monday 2 May 2005

2697/03 SOUTH DOWLING PTY LIMITED v CODY OUTDOOR ADVERTISING PTY LIMITED JUDGMENT 1 HIS HONOUR: Pias Settlements Pty Limited (Pias) was the proprietor of land at 877 South Dowling Street, Waterloo. On 28 August 1997, Pias granted a licence to Claude Neon (Aust) Pty Limited (Claude Neon) to erect advertising signs on the building on that land. On about 25 March 2002 (the precise date is irrelevant), Claude Neon, with the consent of Pias, assigned its interest as licensee to the defendant (Cody). On 15 May 2002, Pias agreed to sell the land to Tada Investments Pty Limited (Tada). Completion occurred on 30 July 2002. Pias, at the direction of Tada, transferred the land to the plaintiff (South Dowling). Neither Tada nor South Dowling, on or before completion, entered into an agreement with Cody preserving its rights and obligations as licensee. Cody says that Pias thereby breached clause 7 of the licence agreement; that this was either a breach of condition or a repudiation of the licence agreement; and that it has exercised its right to terminate the licence agreement. South Dowling says that Cody was not entitled so to act; that Cody itself has repudiated the licence agreement; and that South Dowling has thereby terminated the licence agreement. 2 Thus, the parties are agreed that the licence agreement is at an end. The questions are, whether South Dowling is entitled to damages for breach of contract; and, if it is, what is the amount of those damages. 3 For reasons that do not now need to be stated, I made an order pursuant to Part 31 rule 2 at the commencement of the hearing that the question of liability should be heard and determined separately from and before the issue of damages. The issues 4 The issues relating to liability may be stated as follows: