Ayers Rock SkyShip Pty Ltd v Voyages Indigenous Tourism Australia Pty Ltd [2019] NSWSC 828

Supreme Court New South Wales

Medium Neutral Citation: Ayers Rock SkyShip Pty Ltd v Voyages Indigenous Tourism Australia Pty Ltd [2019] NSWSC 828 Hearing dates: 11-12 June 2019 Date of orders: 04 July 2019 Decision date: 04 July 2019 Jurisdiction: Equity Before: Darke J Decision: Declarations made that an Operator Agreement and two associated leases have been validly terminated by the defendant. Catchwords: CONTRACTS – construction – defendant operates a resort on land near Uluru in the Northern Territory – plaintiff proposed to establish a "Sky Ship" business involving the provision of rides in a gondola of a tethered helium balloon – parties entered into three interrelated agreements being an Operator Agreement and two leases – where the tethered helium balloon was subsequently destroyed by high cross winds – plaintiff unable to continue to operate the balloon – where the defendant issued notices of breach and notices to terminate the three agreements – whether the plaintiff was in breach of cl 4.1 of the Operator Agreement by failing to conduct the Business in accordance with the terms of the Operator Agreement during Normal Business Hours throughout the Term – plaintiff held to be in breach of the Operator Agreement – defendant entitled to terminate the Operator Agreement and the two leases – defendant entitled to declarations that the three agreements have been terminated

EQUITY – equitable remedies – relief against forfeiture – special heads of fraud, accident, mistake or surprise – whether the doctrine of relief against forfeiture applies to the Operator Agreement – whether the destruction of the tethered helium balloon was an "accident" in the relevant sense – where the destruction of the tethered helium balloon was an event within the reasonable contemplation of the parties – where the defendant did not cause or contribute to the breach giving rise to the right to terminate the Operator Agreement – not unconscientious for the defendant to insist upon its strict legal rights Legislation Cited: Aboriginal and Torres Strait Islander Act 2005 (Cth) Business Tenancies (Fair Dealings) Act 2003 (NT), Pt 13, Div 2 Environment Protection and Biodiversity Conservation Act 1999 (Cth) Law of Property Act 2000 (NT), ss 114, 137 Cases Cited: Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd (2017) 324 FLR 378; [2017] NSWSC 1230 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Gardiner v Agricultural and Rural Finance Pty Ltd [2007] NSWCA 235 JPA Finance Pty Ltd v Gordon Nominees Pty Ltd [2019] VSCA 159 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Romanos v Pentagold Investments Pty Ltd (2003) 217 CLR 367; [2003] HCA 58 Shiloh Spinners Ltd v Harding [1973] AC 691 Smith v Chadwick (1882) 20 ChD 27 Stern v McArthur (1988) 165 CLR 489 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57 Category: Principal judgment Parties: Ayers Rock SkyShip Pty Ltd (Plaintiff) Voyages Indigenous Tourism Australia Pty Ltd (Defendant) Representation: Counsel: Mr G A Sirtes SC with Mr A M B Cornish (Plaintiff) Mr A J Myers QC with Mr W S Duggan (Defendant)