Finlay Stonemasonry Pty Ltd v JD & Sons Nominees Pty Ltd as trustee for the Jenkins Family Trust No 2

[2012] HCASL 133

FINLAY STONEMASONRY PTY LTD

v

JD & SONS NOMINEES PTY LTD AS TRUSTEE FOR THE JENKINS FAMILY TRUST NO 2

[2012] HCASL 133
D4/2011

1. The respondent entered into a written and registered lease with the applicant to operate a "coffee shop and eatery" on part of certain land owned by the applicant, the lease to commence on 1 July 2008.  The leased property was contained in a plan of certain land which delineated an area within a building on that land.

2. The applicant's contention is that, by reason of s 63 of the Planning Act (NT), the lease effected an illegal subdivision of the land and the transaction was void. The applicant sought a declaration to that effect in the Supreme Court of the Northern Territory.

3. At first instance, Blokland J dismissed the application finding that the lease had not effected a subdivision.  The applicant appealed to the Court of Appeal of the Supreme Court of the Northern Territory.

4. The Court of Appeal (Riley CJ, Southwood and Kelly JJ) dismissed the appeal, finding that a reasonable person would infer that the common intention of the parties was to lease those parts of the building necessary to enable the respondent to carry on the business of a coffee shop and eatery, and that no illegal subdivision had been effected.

5. The applicant seeks special leave to appeal to this Court to appeal against the orders of the Court of Appeal made on 27 October 2011.

6. The respondent correctly submits that the decision of the Court of Appeal turned on questions of fact concerning the written lease.  There is no point of general principle to be considered that would warrant a grant of special leave.  Special leave is refused with costs.

7. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

W.M.C. Gummow
15 August 2012 S.M. Kiefel