Total Destination Marketing Pty Limited v Horizons Snowy Mountains Pty Ltd (formerly known as Ainline Pty Limited) [2011] NSWSC 1349

Supreme Court New South Wales

Medium Neutral Citation: Total Destination Marketing Pty Limited v Horizons Snowy Mountains Pty Ltd (formerly known as Ainline Pty Limited) [2011] NSWSC 1349 Hearing dates: 4 November 2011 Decision date: 04 November 2011 Jurisdiction: Equity Division Before: Pembroke J Decision: Separate question decided in favour of defendant Catchwords: CONTRACT - terms - construction - unambiguous terms of contract to be given effect in accordance with language, syntax and linguistic context Cases Cited: Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45 Category: Principal judgment Parties: Total Destination Marketing Pty Ltd - plaintiff Horizons Snowy Mountains Pty Ltd (formerly known as Ainline Pty Ltd) - defendant Representation: Counsel: J Darvall - for the plaintiff J A Trebeck - for the defendant Solicitors: Last and Maxwell - for the plaintiff Doyle Edwards Anderson Lawyers Pty Ltd - for the defendant File Number(s): 2011/00248532

EX tempore Judgment

Introduction 1This is an application by the plaintiff for a declaration as to the true construction of clauses 21.5 and 21.6 of a lease that was entered into on 16 December 2006 between the plaintiff as tenant and the defendant as landlord. 2I say "clauses 21.5 and 21.6" because that is what appears in the relevant prayer for relief in the summonses. However, I cannot see how that can be a correct description of the question which has been fixed for separate hearing. 3The issue in this case is whether the landlord's entitlement to inspect and audit the records of Gross Rooms Revenue is limited in a way which is not expressly stated in that clause. That entitlement is set out in clause 21.5. The plaintiff contends that the entitlement to inspect and audit pursuant to clause 21.5 is limited to the records of Gross Rooms Revenue that are contained in a computer software package known as Room Master. 4The plaintiff submits that I should draw an inference from clause 21.6 as to the proper construction of clause 21.5. That is because clause 21.6 provides that during the term of the lease "the tenant shall use and maintain a computer software package known as Room Master for the purpose of reporting, inter alia, Gross Rooms Revenue". 5The question is only one of construction of clause 21.5. It requires the determination and delineation of the landlord's entitlement to inspect and audit provided for in clause 21.5. The plaintiff contends that one of the purposes served by clause 21.6 is to provide the means by which the true construction of clause 21.5 can be arrived at. It is said to inform and explain the meaning of "records" where that word appears in clause 21.5. For the reasons that follow I do not accept the plaintiff's contention.