Supreme Court New South Wales Medium Neutral Citation: About Life Pty Ltd v 234 Sussex Street Pty Ltd [2017] NSWSC 224 Hearing dates: 28 February and 9 March 2017 Date of orders: 10 March 2017 Decision date: 10 March 2017 Jurisdiction: Equity Before: Slattery J Decision: Injunctive relief continued on varied terms. Costs reserved. Catchwords: EQUITY – application for interlocutory injunction – landlord serves on tenant notices of breach of lease and notice of termination– tenant claims it is not in breach of the lease - balance of convenience – on what terms injunction should be granted. Cases Cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 Beese v Woodhouse [1970] 1 WLR 586 Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892 McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210 Remrose Pty Ltd v Allsilver Holdings Pty Limited (2005) 225 ALR 588 The Australian Federation of Islamic Councils Inc v Kassem [2017] NSWSC 206 Category: Consequential orders (other than Costs) Parties: Plaintiff: About Life Pty Ltd ACN 131168271 Defendant: 234 Sussex Street Pty Ltd ACN 140052740 Representation: Counsel: Plaintiff: J.J. Young Defendant: G. Farland Solicitor: Plaintiff: Gaurav de Fontgalland, Fontgalland Lawyers Defendant: Robert Bruce Henry Schneider, HWL Ebsworth Lawyers File Number(s): 2017/64319 Publication restriction: No Judgment 1. The plaintiff, About Life Pty Limited ("AL"), has leased retail premises in Crown Street Surry Hills ("the Premises") from the defendant, 234 Sussex Street Pty Limited ("234"), since October 2014. In January and February this year, 234 issued to AL a series of notices alleging that AL was in breach of the lease. These notices culminated on 21 February 2017 in 234 serving a notice terminating the lease. 2. In response, AL approached the Duty Judge in the Equity Division of this Court. On 28 February 2017, AL obtained an ex parte injunction restraining 234 from acting on its notices of termination or treating the lease as terminated. The matter came back to Court on 9 March 2017 when interim relief was continued until 10 March so 234 could put on evidence and prepare for a hearing. 3. The Court heard AL's contested application for continued interlocutory relief on 9 March 2017. The parties both accepted that the case needed to be referred into the expedition list. But they disputed the terms upon which interlocutory relief should be granted in the meantime. The Court continued the injunction until 10 March and reserved judgment overnight. 4. These are the Court's reasons for judgment. In the result, the Court has continued the relief originally granted ex parte but has varied the terms of that relief. 5. The duty list was busy on 9 March and much of the hearing could not be accommodated until after hours, and concluding at approximately 5.45pm. In these challenging circumstances the proceedings were efficiently conducted by the lawyers on all sides. Mr J.J. Young of counsel appeared for AL instructed by Fontgalland Lawyers. And Mr G. Farland of counsel appeared for 234 instructed by HWL Ebsworth Lawyers. 6. The Court has power to grant an interlocutory injunction under Supreme Court Act 1970, s 66(4), on terms if necessary, in any case where "it appears to the Court to be just or convenient". The Court must consider whether the plaintiff's case presents a serious question to be tried on the pleadings and whether the balance of convenience, hardship and related factors warrant the grant of an interlocutory injunction. The applicable principles in relation to the grant of such relief are discussed later in these reasons. 7. This is an interlocutory hearing, not a final hearing. The Court will attempt to arrange the earliest possible final hearing for these parties. In the meantime, the Court's task is not to undertake a preliminary trial and to give or withhold interlocutory relief upon some forecast as to the ultimate result of the factual dispute between the parties, although the relative strengths of the parties' cases are not irrelevant to the exercise of the Court's discretion. 8. The Court's task on an interlocutory hearing such as this one was well expressed by the English Court of Appeal in Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892; [1984] 2 All ER 408; (1984) 81 LSG 2225; (1984) 128 SJ 484 when Sir John Donaldson MR said (at 894H – 895A): "The defendants now appeal. It is of paramount importance that everyone should understand the exercise upon which the judge was, and we are, engaged. There is to be a speedy trial at which the rights of the parties will be determined. That has not yet happened. We are concerned, so far as we can, to preserve the rights of the parties meanwhile. It is not our function to decide questions of fact or law which will be in issue at the trial. If they are arguable, that is the time and the place when they should be argued." 1. Later in the same judgment his Lordship further explained the Court's duty in following terms (at 898E-898G): "What then should we do? I stress, once again, that we are not at this stage concerned to determine the final rights of the parties. Our duty is to make such orders, if any, as are appropriate pending the trial of the action. It is sometimes said that this involves a weighing of the balance of convenience. This is an unfortunate expression. Our business is justice, not convenience. We can and must disregard fanciful claims by either party. Subject to that, we must contemplate the possibility that either party may succeed and must do our best to ensure that nothing occurs pending the trial which will prejudice his rights. Since the parties are usually asserting wholly inconsistent claims, this is difficult, but we have to do our best. In so doing, we are seeking a balance of justice, not of convenience." 1. These reasons first set out a very brief narrative of some relevant facts. They are not all the facts in the proceedings. Time does not allow that. Only those facts of greatest relevance to the interlocutory issues to be decided have been included. Except where the facts are uncontentious, the Court's narrative of facts below should only be understood, and is mostly expressed, as a forecast of the kind of evidence that each party proposes to adduce at a final hearing. 2. Then these reason first state the issues and the applicable law, followed by an analysis of the evidence and the discretionary consideration relevant to the terms on which interlocutory relief may be continued. 234 alleges: AL is converting a leased retail shop into a café – 2014 to 2017 1. AL operates a number of large format wholefoods grocery stores, incorporating deli and café businesses in both Sydney and Melbourne. The lease of the Premises, registered lease AF956132 ("the Lease") commenced on 30 May 2009. At execution the lessor was Mirvac Projects Pty Ltd and the lessee Woolworths Limited ("Woolworths"). The original lessor and the original lessee have since given up their respective interests in the Lease (in the case of the lessor via an intermediate party) to the parties to these proceedings. After commencing negotiations in April 2014, AL became the lessee of the Premises under a variation of lease executed in October 2014. The Lease variation also extended the original ten year term for two years until 2021. AL commenced trading at the premises on 23 October 2014. The defendant, 234, became the lessor of the Premises by assignment of the reversion in January 2015. 2. When Woolworths was the tenant it operated a Thomas Dux store at the site. One of the reasons that AL was attracted to the site was that its business has similarities to that of Thomas Dux. For example, AL contends in these proceedings that its usual practice like that of Thomas Dux is to bring pre-cooked food onto the Premises and to re-heat it in a turbo oven for sale through self-service units located on the Premises. 234 alleges that AL is cooking food on the Premises. AL denies that it is conducting any cooking on the Premises. 3. Clauses of the Lease are not reproduced in these short reasons but are identified where relevant to the argument. 4. One of the foundation documents in the dispute between these parties is a diagram plan for the use of the Premises that passed between AL and representatives of the then lessor of the Premises in the course of final negotiations for AL to take the variation of the Lease. 5. AL contends that this diagram ("the September plan") was approved by the then lessor as a preliminary to the execution of the variation of Lease and has contractual significance or binds the then lessor and the current lessor to estoppel. Whether the plan does or does not have legal force between these parties is a matter to be determined at final hearing. But the September plan clearly has foundational significance for their dispute. 6. The plaintiff's case is that the representatives of the previous lessor also visited the Premises after AL's entry and appeared content with what AL says was its then usage of the Premises, in accordance with the September plan. AL claims that the plan was considered and approved by the previous landlord under a provision in the Lease (clause 9.4) which requires the landlord to promptly consider any tenant requests for consent or approval. But 234 may argue at final hearing that such a clause will not vary the effect of other written provisions of the Lease, upon which it relies, that it says prohibits some of the plaintiff's business activity at the business operations at the Premises. 7. It seems reasonably common ground that between October 2014 when AL commenced operations and December 2016, neither the previous landlord nor 234 took issue with AL's use of the Premises or disputed the September 2014 plan. There was relative peace between landlord and tenant during this period. 8. But that changed on or about 9 December last year. On that date, 234 served on AL the first of four notices of default under the Lease. The precise defaults alleged in each of these notices is not presently material. But the general nature of what they alleged is as follows. 9. 234 served default notices under the Lease on AL on 9 December 2016, 12 January 2017, 17 January 2017 and 3 February 2017. 10. Lease, clause 13.1(b) provides that tenant's non-financial default will be constituted if the tenant "fails to comply with any other obligation under this lease and does not make good that default within a reasonable time (having regard to the nature of the default) after notice from the landlord". 11. All four notices alleged non-financial defaults. AL will say at final hearing that it sought to engage with 234 about the alleged default so that it could better make good any default that was alleged. 12. The final 3 February notice alleges breaches of Lease clauses 5.1 (use of the Premises only in accordance with the permitted use), 5.2 (compliance with all laws and requirements of government authorities), 5.5 (operation of the Premises in good faith and in a reputable manner), and 5.6 (not causing a nuisance). The breaches are said to be constituted, in summary, by the selling of cooked and uncooked food at the Premises, and its consumption at the Premises and the providing of seating at the Premises other than as shown in the September 2014 plan. 13. Further correspondence ensued which led to an inspection on 21 February 2017 of the Premises by representatives of the landlord. Little discussion seems to have taken place between representatives of the landlord and the tenant on this occasion. Later the same day, 234 served a notice of termination of that date on AL. 14. The following day, 234 demanded that AL cease trading from the Premises. The same day, 22 February 2017 AL's solicitors responded, denying the validity of the notice of termination, contending that the notice itself was a wrongful repudiation of the Lease and seeking the withdrawal of the notice of termination. Further correspondence did not lead to resolution. So AL applied to the Court on 28 February 2017 for interlocutory relief. 15. The parties have filed extensive evidence on both sides during this interlocutory contest. The evidence is sufficiently detailed to give the Court confidence that the parties are well advanced in their preparations for a final hearing of this matter. The parties were able to isolate from the materials filed the principle issues in contest between them. Summary of the Issues between AL and 234 1. The issues for determination may be shortly stated by reference to the orders already made and the variations that the defendant, 234, proposes for their continuation. 2. The Court made orders on 28 February 2017 which were varied and continued from 1 March in the following form: "2. Note neither party in these proceedings proposes to transfer the proceedings to the Civil and Administrative Tribunal on the basis that it is acknowledged that the defendant will be pursuing a cross-claim in the proceedings in an amount which exceeds the jurisdiction of the Civil and Administrative Tribunal. 3. Upon the Plaintiff, by its counsel, giving the usual undertaking as to damages, the Defendant whether by itself or by its servants or agents, is restrained until 5pm 9 March 2017, from taking any steps to re-enter the premises located at Retail Tenancy 1, 285A Crown Street, Surry Hills, NSW, 2010 (Premises). 4. Upon the Defendant, by its counsel, giving the usual undertaking as to damages, the Plaintiff whether by itself or by its servants or agents, is restrained until 5pm, 9 March 2017: (a) from 7 March 2017 at 7am,from washing up on the Premises bain maries, other hot food containers, cooking apparatus and utensils; (b) discharging any waste water or other liquids into the Sydney Water sewer which liquids have been used for the washing of utensils, containers, apparatus or surfaces, which have been employed in any way in the cooking or reheating of food or preparation for the cooking or reheating of food." 1. The defendant, 234, proposed orders with more restrictions on what AL could do within the Premises before trial. The orders that 234 proposed on 9 March were as follows. "1. Upon the plaintiff, by its counsel, giving the usual undertaking as to damages, until further order, the Defendant be restrained, whether by itself or by its servants or agents, from taking any steps to re-enter the premises located at Retail Tenancy 1, 285A Crown Street, Surry Hills, NSW, 2010 (Premises); 2. Order 4 made by His Honour Justice Slattery on 28 February be amended as follows: (a) the words "until 5pm, 9 March 2017" be replaced by the words "until further order" and (b) by the addition of the following sub paragraphs: (c) Cooking on the Premises; (d) Providing seating on the Premises otherwise that in accordance with the September 2014 Plan being at page 209 of EX AB-1; (e) Providing table service at the Premises; (f) Providing cafe menus at the Premises; (g) Discharging trade waste water from the Premises." 1. The final contest came down to 3 of the additional restraints that 234 is requesting be placed on AL during the interlocutory period. The contest concerned the three matters: (c) cooking on the premises, (d) providing seating on the premises otherwise than in accordance with the September 2014 plan, and (g) discharging trade waste water from the premises. 2. As the result of discussion in the course of submissions, restraints (e) and (f) ceased to be contentious. The Court suggested a formula for the parties to consider with which the parties seem content. The Court in the final orders has refined this formula slightly. As with the other final orders, the parties are free to put submissions about the exact form of the orders in light of the Court's reasons. 3. But a central part of 234's contentions at final hearing, foreshadowed at this interlocutory hearing, is that the defined permitted use under the Lease is "retail sales including supermarket, produce and ancillary purposes, including the sales of alcoholic liquors and beverages". 234 says that this does not include the operation of a café or a restaurant or any business operation that encourages table service or supports the consumption of food on the premises. 4. In reply AL will argue that much of what it now seeks to do is authorised within the phrase "ancillary purposes", or may be implied from the September 2014 plan. But this too is contentious and is a matter for final hearing. 5. The words which the Court has suggested and with which the parties agree have the intent of stopping café-like operations during restraint period. Specifically this denies the possibility of menu-based table service. Applicable Legal Principles 1. In deciding whether or not to grant an interlocutory injunction the Court must consider whether there is a serious question to be tried and then whether the balance of convenience and questions of hardship and related factors warrant the grant of an interlocutory injunction. First, the plaintiff must prove a serious, not a speculative, case which has a real possibility of ultimate success and that property or other interests might be jeopardised if no interlocutory relief is granted: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) at [21–350] ("Equity Doctrines and Remedies"), discussing the requirements of the Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 prima facie case test. Put another way, the plaintiff must show a sufficient likelihood of success to justify the preservation of the status quo pending the trial: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [70] – [71]. 2. Then, it becomes a matter of analysing if in all the circumstances of the case, considering the balance of convenience and issues of hardship, the Court should nonetheless exercise its discretion by declining to issue an interlocutory injunction: Equity Doctrines and Remedies at [21–350]; and see also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 and Beese v Woodhouse [1970] 1 WLR 586. Other factors to which the Court will have regard include the adequacy of damages, the possibilities of alternative remedies, whether there has been any laches or delay, the strength of the grounds of defence suggested by the defendant, what, if any, undertakings the defendant is prepared to give, but hardship and balance of convenience are very important: Equity Doctrines and Remedies [21 – 375]. If any infringement of a plaintiff's right between writ and hearing would be properly compensated in damages, that fact alone can, but not must, be a ground for declining an injunction: McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210. 3. The defendant, 234, submitted, correctly in my view that one of the Court's tasks is to assess what constitutes the status quo in order to preserve the parties' positions pending trial. What that task involves was well described in in a passage quoted from Hasluck J's decision in Remrose Pty Ltd v Allsilver Holdings Pty Limited (2005) 225 ALR 588 at [118] – [119] (Remrose) that was recently cited by by McDougall J in The Australian Federation of Islamic Councils Inc v Kassem [2017] NSWSC 206. In Remrose Hasluck J said at [118] and [119] the following: "[118] It is generally thought to be no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consideration. These are matters to be dealt with at the trial. In Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471 Kennedy J held that the normal rule is that a court does not undertake a preliminary trial in granting or withholding interlocutory relief upon a forecast as to the ultimate result of a case. However, there are cases when an evaluation of the strength of a plaintiff's case for final relief can determine which claim to legal rights is more likely to be unjustly defeated by refusing or granting an injunction. [119] Care must be exercised in determining what is the status quo. If an order is sought in order to preserve the status quo, it is important to understand that the status quo is the state of affairs existing before the last change; that is, during the period immediately preceding the motion for interlocutory injunction, Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC 130 at 140." 1. 234 accepts that there is a serious question to be tried. This is a proper concession on 234's behalf by its lawyers, as there is clearly a reasonably grounded debate on both sides as to whether AL has breached the Lease and 234 is entitled to re-entry. 234 accepts that an interim injunction in some form is to be continued until the final hearing. 2. The real issue on this application is the question of the balance of convenience. Allowing 234 to act on its notices and achieve re-entry prior to trial, with all its commercial and physical consequences for AL is neither a just nor convenient medium-term solution. But equally, placing 234 in serious risk of breach of its statutory obligations to Sydney Water, or any other statutory authority, with all its commercial and physical consequences is neither a just nor a convenient medium-term solution. On the balance of convenience the detail of what lies between these two poles is where the interlocutory contest has played out. Moulding Appropriate Interim Relief 1. The remaining issues relate to the defendant's proposed restraints with respect to the following: (c) cooking on the Premises; (d) seating on the Premises; and (g) discharging trade waste water from the Premises. 2. (c) Cooking Food at the Premises. 234 argues that uncooked chickens were being brought onto the Premises in bulk, placed in a rotisserie and had heat applied to them to a level where they could then be served to the public as food. 234 contended that this was "cooking" on the Premises. 234 argued that under the modified development approval for the premises D/2008/2212?A clause (25)(c) operating from 2009 for Thomas Dux, "no approval is granted for any cooking within the Premises" and that as a result, requirements for special aerosol exhausts and trade waste receptacles were not required for the Premises. 3. AL argues that when the Lease is viewed as a whole in light of the September 2014 plan and the past conduct of landlord and tenant that, the way these chicken carcasses are being prepared for service to customers is not "cooking" within the meaning of the development approval. 4. Whilst this might be an argument to be put and refined at final hearing on AL's behalf, during the interlocutory period there is in my view a significant risk that if this activity of bringing raw chickens on-site is permitted that a breach of the development consent will occur, thereby attracting intervention by the Council and risking loss to both parties. 5. The just course in the interlocutory period is to allow AL to cook chickens off-site and bring them on-site for re-heating, if that is possible, but not to allow raw chickens to be brought on site to have heat applied to them for the first time. 6. (d) Seating at the Premises. The issue of seating is bedeviled by questions of what is the status quo ante. Until January this year there were some 70 seats in and around the Premises. As a result of one of the notices served, that was reduced to the current number which is 20 to 22. 234 contends that at the most some 8 seats should be allowed where they are shown on the September 2014 plan. This issue is further complicated by an inspection which was done on the Premises on behalf of 234 and late January. At that inspection the box-type seating in the self-service area was not noticed on inspection from outside the Premises. An issue exists as to whether it was there at that time or not. But more prominent and visible seating in the self-service area was removed after the early notices were served and replaced by the current seating. 7. Yet a further complicating factor is that the September 2014 plan shows a table and some seats and a bench near the "coffee bar" side of the Premises, but AL says that for a long time, dating right back to the time of that plan, there has been similar seating against the front wall of the Premises near the checkout. 8. The Court has decided to leave the current seating in place for several reasons. It is the best representative of the status quo ante at the time of commencing the proceedings. To a large extent the restraints that prevent table service and the use of menus at tables also prevent the exploitation of this seating to turn a retail area into a café. This should not deter many other potential lessees of leased areas in 234's building. Next, AL at least has a reasonable case that the seating in the self-service area is not visible to many passers-by. And finally, as a broad proposition, it is difficult to contend that a supermarket owner cannot place such seating throughout its supermarket in places for the convenience of its customers. 9. (g) Discharge of Trade Waste. 234 argues that the development in which the Premises are found was designed with wet leased areas and dry leased areas and that the Premises are a dry leased area, therefore not accompanied by any dedicated grease traps or ducted exhaust systems. 234 says that it cannot apply for trade waste permit from Sydney Water in respect of the Premises because there is no ready access to a grease trap from the Premises. Moreover 234 says that Sydney Water has issued on 21 February a notice of breach of 234's trade waste permit which must be rectified by 31 March 2017. The consequences of breach of a Sydney Water permit are severe. The loss of 234's permit may jeopardise the market value of all of its wet tenancies and expose it to damages claims. 10. AL says that the 21 February 2017 notice from Sydney Water is not a default notice on which Sydney Water can act with legal consequences. But it is not at all clear that Sydney Water takes the same benign view. That being so, this represents heavy risk of loss for 234 during the interlocutory period. 11. But that is why the Court made the orders that it did on 1 March 2017 reflected in the restraints in order 4(a) and (b). Once those restraints are in place and once Sydney Water is fully and properly informed of them, it is difficult to see what else is gained by 234's proposed order (g) other than to confuse how the orders are interpreted as a whole. There must be some limited capacity for sinks and drains to be used from the Premises which discharge into which would strictly be described as "domestic waste water", otherwise the premises would not comply with health regulations. But on the presently available information, with the state of notices as they exist between Sydney Water and 234, restraints 4(a) and (b) are sufficient protection for 234 in the interlocutory period, together with a proviso that domestic waste water may be discharged into the sewer. 12. Other Issues. The orders to be made raise other issues. The ban on cooking on site which is clearly expressed in these orders may require some reaction time in AL's business. The logistics of serving re-heated as distinct from on-site cooked chickens may take a while to organise. A stay of that part of the Court's orders for a few days may be appropriate to allow for this adjustment. The parties can put submissions about this, as they have liberty today to suggest refinements to the orders which the Court proposes to make. 13. Confidence in the operation of these orders will be enhanced if 234 has better information about what AL is doing on-site in the relevant areas of the restraint. On the other hand, this information gathering should not be unnecessarily intrusive, expensive or inconvenient. The Court raised the possibility of digital surveillance of parts of the Premises. It may be there are already security cameras in place and that all needs to be done is the vision recorded on those cameras to be shared in some agreed way. The Court does not have in mind real time cameras. But some form of recording of what is occurring which can be accessed from time-to-time and at a later point of time is appropriate in order to record aspects of the preparation and re-heating of food and the washing of the hot dishes off-site. This may take some time to discuss. The parties are at liberty to approach the court any time before Thursday 16 March 2017 at 4pm with draft orders to give effect to such a regime. 14. Finally, there is some evidence that AL has been inhibited from speaking to representatives of Sydney Water. This may not continue to be a problem after the discussion that took place in Court. If it does, the parties are at liberty to approach the Court for orders in that regard. I see no basis in the Lease for AL to be banned from productive discussions with authorities such as the Council and Sydney Water about aspects of permitted use. But it goes without saying that those discussions should not be the occasion of any breach of the lease by AL. 15. Ordinarily the costs of an interlocutory injunction hearing would be reserved. Where the costs of the present contest should fall can only be determined after the parties know the result of the final hearing. So the order the Court will make will be that cost are reserved. Conclusions and Orders 1. In the result, for the reasons given, the Court will continue the injunctive relief upon the following varied terms. 1. Upon the plaintiff, by its counsel, giving the usual undertaking as to damages, until further order, the Defendant is restrained, whether by itself or by its servants or agents, from taking any steps to re-enter the premises located at Retail Tenancy 1, 285A Crown Street, Surry Hills, NSW, 2010 (Premises); 2. Upon the Defendant, by its counsel, giving the usual undertaking as to damages, the Plaintiff whether by itself or by its servants or agents, is restrained until further order: 1. from washing up on the Premises bain maries, other hot food containers, cooking apparatus and utensils; 2. discharging any waste water or other liquids into the Sydney Water sewer which liquids have been used for the washing of utensils, containers, apparatus or surfaces, which have been employed in any way in the cooking or reheating of food or preparation for the cooking or reheating of food. But this restraint will not prohibit the discharge of ordinary domestic waste water into the Sydney Water sewer. 3. cooking on the Premises other than the re-heating of food which has been cooked or prepared away from the Premises; 4. providing seating on the Premises otherwise than in accordance with Schedule "A" to the orders; 5. providing table service at the Premises; 6. providing cafe menus at or on any tables at the Premises but the restraint in this sub-paragraph shall not prohibit the display on any vertical surfaces within the Premises of price lists for hot or cold food and drink items for sale within the Premises; or 7. providing any express incentive to customers to be seated at any of the tables described in Schedule "A" but any implied incentive that may arise from the setting out or arranging of such tables is excepted and will not be a breach of this condition. 1. Direct the parties to submit to the Court forthwith drafts, if required, of: 1. Further directions for the expeditious preparation of these proceedings for final hearing; 2. Any additional orders that are proposed as to the digital camera surveillance of the Premises (or other agreed method) as are reasonable (and without undue financial expense or inconvenience) to verify the plaintiff's compliance with these orders; 3. Any additional orders that are proposed to ensure that the defendant places no restraint upon the plaintiff's freedom to communicate with Sydney Water or any other public authority about the plaintiff's permitted use of the Premises. 1. Grant liberty to apply on two days' notice in respect of the implementation of these orders. 2. Costs of the plaintiff's application for this interlocutory injunction are reserved. 3. Stay the operation of Order 2(c) until 5pm on Wednesday 15 March 2017. Schedule A If the Premises are viewed from a bird's eye perspective (as in Exhibit TP1, at page 226) and the centre of a compass is notionally placed at the instore end of the checkout in the Premises, the seating which is permitted under these orders is: (a) in a north-westerly direction the table bench seat and single seats configured to seat approximately eight (8) persons in total; (b) in a south-westerly direction the table bench seat and single seats configured to seat approximately eight (8) persons in total; (c) in an easterly direction, informal box-based seats or bench seats located wholly within the self-service area and not visible to passers-by outside the Premises configured to seat six to eight (6-8) persons only. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2017