McDonald’s Australia Ltd v Rydal Serpan Pty Ltd & Ors [2009] NSWSC 241

New South Wales Supreme Court

CITATION : McDonald's Australia Ltd v Rydal Serpan Pty Ltd & Ors [2009] NSWSC 241

HEARING DATE(S) : 26 March 2009

JUDGMENT DATE : 26 March 2009

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 26 March 2009

DECISION : Application for removal of caveat dismissed.

CATCHWORDS : CAVEAT – Whether Plaintiff has arguable case for a caveatable interest.

CATEGORY : Procedural and other rulings

McDonald's Australia Limited (Plaintiff) Rydal Serpan Pty Ltd (First Defendant) PARTIES : Stuart David Webster (Second Defendant) Linda Jane Webster (Third Defendant) Yavenvale Pty Ltd a.t.f. Pearce Superannuation Fund (Fourth Defendant)

FILE NUMBER(S) : SC 50047/09

N.C. Hutley SC, E.A. Hyde (Plaintiff) COUNSEL : M.A. Ashhurst SC, S.B. Docker (1st and 4th Defendants) Ms E.M. Picker (2nd and 3rd Defendants)

SOLICITORS : Deacons (Plaintiff) RSM Bird Cameron (1st and 4th Defendants)

50047/09 McDonald's Australia Ltd v Rydal Serpan Pty Ltd & Ors

JUDGMENT – Ex tempore

26 March, 2009

1 On 1 April 2002, Mr and Mrs Webster entered into a lease of certain properties in Wagga Wagga to the First Defendant, Rydal Serpan Pty Limited ("Rydal"). On 28 October 2002, Rydal entered into a sublease of the property to the Plaintiff, McDonald's Australia Ltd ("McDonald's"). The term of the sublease was co-extensive, less one day, with the term of the Head Lease. The Head Lease provided in clause 20.6 as follows: "If during the duration of this right of pre-emption the lessor desires to sell the premises:–