Agtan Pty Ltd (ACN 007 410 077) v Caltex Australia Petroleum Pty Ltd(ACN 000 032 128)

The appeal involves Agtan Pty Ltd as the lessor and Caltex Australia Petroleum Pty Ltd as the lessee. The dispute centres on the interpretation of a lease agreement for premises used as a service station, specifically whether the lessee was obligated to repair an underground storage tank that was part of the tank system. The lease included a clause about the maintenance and repair of the premises, which the court had to interpret to determine if it covered the tank system or just individual parts of it. The case was heard in the Supreme Court of New South Wales.

The court had to decide if the lessee's obligation to keep and maintain the premises included repairing the tank system and whether the obligation to effect repairs as necessary was distinct from the obligation to keep and maintain. Another issue was whether the condition of the premises as at the date of commencement of the lease referred to the original lease or the renewal period after exercising the options to renew. The court also had to consider if the findings of fact were challenged on appeal, particularly those based on inference, and determine if the inference was the more probable conclusion from the facts.

The court concluded that the obligation to keep and maintain the premises did not necessarily include repairing the tank system. The court found that the obligation to effect repairs as necessary was distinct from the obligation to keep and maintain and that the condition of the premises as at the date of commencement of the lease referred to the original lease, not the renewal period. The court held that the inference made by the trial judge was the more probable conclusion from the facts. The appeal was dismissed.

The court ordered that Caltex Australia Petroleum Pty Ltd pay Agtan Pty Ltd’s costs of the appeal.