Dalgety Wine Estates Pty Ltd v Rizzon

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason and Murphy JJ.

DALGETY WINE ESTATES PTY. LTD. v. RIZZON

(1979) 141 CLR 552

20 September 1979

Injunctions—Licensing (S.A.)

Injunctions—Contract—Negative stipulation—Breach—Discretion of court—Licensing—Covenant not to apply for removal of licence—Removal of liquor licence—Without lessor's consent—Licensing Court required to consider whether removal in breach of covenant—Discretion any power to permit removal notwithstanding breach—Relevance of statutory procedure to judicial discretion whether to grant injunction. Licensing (S.A.)—Licensed premises—Lease—Removal of licence—Application to Licensing Court—Court required to consider whether removal breach of covenant—Discretionary power to permit removal notwithstanding breach—Licensing Act, 1967 (S.A.), ss. 57 (1) (d), 61 (1).

Decisions

Sept. 20.
The following written judgments were delivered: -
BARWICK C.J. In this appeal, I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs. I agree entirely with them and his conclusion that special leave to appeal should be granted and that the appeal should be allowed. I agree with the particular orders which he proposes. (at p555)

2. There is no reason, in my opinion, why the grant of jurisdiction to the Licensing Court should be held to limit in any respect the jurisdiction of the Supreme Court to enforce contractual obligations of the parties with respect to the licence granted by the Licensing Court under the provisions of the Licensing Act, 1967 (S.A.), as amended. The ability of the Licensing Court to consider those contractual obligations when exercising in the public interest the discretion given to it with respect to the renewal of licences does not warrant, in my opinion, the conclusion that the jurisdiction of the Supreme Court to enforce the contractual obligation is in any way impaired. (at p555)

GIBBS J. This is an application for special leave to appeal from a judgment of the Full Court of South Australia. The applicant, Dalgety Wine Estates Pty. Ltd., is a company which carries on business in South Australia as a wine producer and merchant. The respondents carry on the business of a grocery and liquor store in premises at 75-77 Glen Osmond Road, Eastwood, in South Australia ("the subject premises"), and are the holders of a retail storekeeper's licence issued under the Licensing Act, 1967 (S.A.), as amended ("the Act") in respect of those premises. The subject premises were on 30th June 1969 leased by their owners, Giordano Rossetto and Lorenzo Comazzetto, to the applicant for a term of three years commencing on 5th January 1968. The lease reserved a yearly rental, payable monthly, and entitled the applicant to two renewals of the term, each for three years. The term of the lease was twice renewed, but finally expired on 5th January 1977. Since that time, according to the statement of facts contained in the judgment of the Full Court, no new lease has been executed, and the applicant has paid no rent, but claims to have some form of tenure, apparently as the result of an oral arrangement with the owners. (at p556)

2. By an underlease…