Apriaden Pty Ltd v Seacrest Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4995 of 1999

APRIADEN PTY. LTD.
	Appellant
v.
SEACREST PTY. LTD. & ANOR	Respondents

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JUDGES:	ORMISTON and BATT, JJ.A. and WILLIAMS, A.J.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	28 February, 1, 2 and 3 March 2005
DATE OF JUDGMENT:	1 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 139

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LANDLORD AND TENANT – Torrens system land – Unregistered lease for three years with options to renew – Variation extending term of lease – Nature of leasehold interest before and after variation – Whether contractual principles relating to repudiation apply to lease – Whether leasehold estate determined by acceptance of repudiation – Whether s.146 of the Property Law Act 1958 applies to termination of lease by acceptance of repudiation – Whether re-entry clause in lease excluded exercise of common law rights.

DAMAGES – Assessment of loss of profits and value of goodwill after alleged wrongful re-entry – Effect of s.14(5) of the Retail Tenancies Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P.R. Best with Mr D.P. Lloyd	Taylor & Co.
For the Respondents	Mr M. Heaton, Q.C. with Mr P.A. Hannan	Fetter Gdanski

ORMISTON, J.A.:

1. In this appeal I have had the opportunity of reading the judgment which Williams, A.J.A. is about to deliver.  I agree with the conclusions reached by her and I agree in substance with the reasons she gives for reaching them, so that the appeal should be dismissed. 

1. I confess that at first I was uncomfortable with the concept that a lessor could re-enter premises still held by a lessee on grounds which could be justified only in terms of the law of contract.  The law of landlord and tenant may be said to be so well known, with leases customarily drafted upon the assumption that that law applies to them, at least so far as the right to possession is concerned, that it might lead to commercial uncertainty if more general and arguably more flexible contractual rules were applied to them.  Similar views, at least in qualified terms, have been expressed in a number of the judgments cited to us in the course of the appeal, but the question remains whether such concerns can be accommodated into the legal principles relating to leaseholds as they presently stand.  Conceptually and historically those principles have always rested on somewhat uncertain bases, such that from very early times in the common law leasehold interests have been considered as personal rather than real property.  Moreover the uncertainties, if not peculiarities, of the common law relating to leases have been such that the legislature has frequently intervened, more often than not to ameliorate some harshness perceived in the common law as it was then applied.  So text writers writing in, say, 1880, 1920 and 1980, would have expressed (and did express) quite different views as to the current law relating to certain incidents of leaseholds because of legislation passed in the intervening years.  Even views expressed as recently as…