Downing v WIN Television (NSW) Pty Ltd - [2010] NSWSC 1132

CITATION: Downing v WIN Television (NSW) Pty Ltd & Ors [2010] NSWSC 1132

HEARING DATE(S): 29 September 2010 to 6 October 2010

JUDGMENT DATE :
21 October 2010

JUDGMENT OF: Ball J

DECISION: See paragraphs 62 and 63 of the judgment.

CATCHWORDS: CONTRACT – interpretation – whether agreement is for a lease or a licence – whether licence is binding on subsequent purchaser of property – whether agreement contained right to sublicense. PROPERTY – fixtures – whether transmission tower and equipment shed are fixtures. REMEDIES – rectification – whether agreement was varied after document embodying agreement was executed – whether document embodying agreement should be rectified. TORTS – intentional – trespass to land – licence to occupy land – where defendant entered land for lawful purpose pursuant to licence but subsequently engaged in unlawful activity. WILLS AND ESTATES – executor – transfer of property from plaintiff’s father to plaintiff – whether defendant had a proprietary interest in that property - whether executor failed to recognise proprietary interests of defendant – whether executor failed to discharge contractual obligations of the deceased

LEGISLATION CITED: Fair Trading Act 1987 (NSW)
Local Government Act 1919 (NSW)
Probate & Administration Act 1898 (NSW)
Trustee Act 1925 (NSW)

CATEGORY: Principal judgment

CASES CITED: Angullia v Estate and Trust Agencies (1927) Limited [1938] AC 624
Anthony v Commonwealth [1972-73] ALR 769; (1973) 47 ALJR 83
Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700
Baker v R (1983) 153 CLR 338
Commonwealth v Verweyen (1990) 170 CLR 394
Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605
Dillwyn v Llewelyn (1862) 45 ER 1285
Giumelli v Giumelli [1999] HCA 10; 196 CLR 101
Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584
Kauter v Kauter [2003] NSWSC 741
Minister of Health v Bellotti [1944] KB 298
New South Wales v Ibbett [2006] HCA 57; 229 CLR 638
Plimmer v Wellington Corporation (1884) 9 App Cas 699
Radaich v Smith (1959) 101 CLR 209
Ramsden v Dyson (1865) LR 1 HL 129
Reid v Smith (1906) 3 CLR 656
Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466
TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; 54 NSWLR 333
TCN Channel Nine v Ilvarity Pty Ltd [2008] NSWCA 9; 71 NSWLR 323
Waltons Stores v Maher (1988) 170 CLR 394

PARTIES: Robert John Downing (Plaintiff / First Cross Defendant)
WIN Television (NSW) Pty Ltd (First Defendant / First Cross Claimant)
Prime Television Limited (Second Defendant / Second Cross Claimant)
The State of New South Wales (Third Defendant / Third Cross Claimant)
Brian Anthony Lulham (Second Cross Defendant)

FILE NUMBER(S): SC 2007/253463

COUNSEL: M Leeming SC (Plaintiff / Cross Defendants)
G Elliott (Plaintiff / Cross Defendants)
D R Stack (Defendants / Cross Claimants)
A R Vincent (Defendants / Cross Claimants)

SOLICITORS: Galland Elder Lulham Solicitors (Plaintiff / First Cross Defendant)
Thomson Lawyers (Defendants)
DTA Lawyers (Second Cross Defendant)

- 1 -

IN THE SUPREME COURT

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 1132
Decision Date: 21 October 2010

CaseChat Overview and Summary

The case of Downing v WIN Television (NSW) Pty Ltd involved a dispute over an agreement between the parties concerning the transmission of television signals. The dispute arose when WIN Television (NSW) Pty Ltd, the defendant, sought to continue using transmission equipment on land owned by the plaintiff, Downing, after the latter had purchased the property from his father's estate. The dispute was heard in the Supreme Court of New South Wales.

The court was required to determine several legal issues, including whether the agreement between the parties was a lease or a licence, whether any licence was binding on the subsequent purchaser of the property, and whether the agreement contained a right to sublicense. The court also had to consider whether certain transmission equipment and a shed were fixtures, and whether the agreement had been varied after the document embodying the agreement was executed. Additionally, the court needed to address whether the agreement should be rectified and if the defendant had trespassed on the plaintiff's land by engaging in unlawful activities after entering the land for a lawful purpose.

In its reasoning, the court held that the agreement was a licence rather than a lease. The licence was binding on the plaintiff, as the subsequent purchaser of the property, because the licence was personal to the original parties and did not transfer with the property. The court found that the agreement did not contain a right to sublicense. The transmission tower and equipment shed were considered fixtures. The court also concluded that the agreement had not been varied after the document was executed, and therefore, there was no need for rectification. Finally, the court determined that the defendant had trespassed on the plaintiff's land when it engaged in unlawful activities after initially entering the land for a lawful purpose.

The court ordered WIN Television (NSW) Pty Ltd to remove its transmission equipment and equipment shed from the plaintiff's land and to pay damages for the trespass. The court also found that the plaintiff's executor had not failed to recognise any proprietary interests of the defendant in the property, nor had the executor failed to discharge the contractual obligations of the deceased.

Orders