Hamilton Island Enterprises Ltd v Croycom P/L

Hamilton Island Enterprises Limited (HIE) sought an injunction and a declaration from the Supreme Court of Queensland, challenging the registrability of a "licence agreement" under the Land Act 1994. The plaintiff argued that the agreement did not create a registrable interest in land, as required by section 295(1) of the Act. The defendant, Croycom P/L, maintained that the agreement constituted a lease, thus making it a registrable interest in land. The court's task was to determine whether the document created a lease or a licence. The decision hinged on the interpretation of the agreement's terms, focusing on whether the document granted exclusive possession to Croycom or merely a limited right of occupation.

Justice Thomas meticulously analysed the document's provisions, finding that while certain clauses suggested a licence, others indicated a lease. The court highlighted articles that supported a licence, such as the grantor's right to require the concessionaire to vacate the premises and the lack of exclusive possession. Conversely, other clauses, like the right of quiet enjoyment, leaned towards a lease. However, the court emphasised that the essence of a lease is exclusive possession, a right notably absent in this agreement. The court found that the extensive rights of supervision, control, and the grantor's power to require relocation during the term contradicted the notion of exclusive possession. Consequently, the document did not confer a leasehold interest and did not create an interest in land in favour of Croycom within the meaning of the Land Act 1994. The court declared that the licence agreement was not an instrument capable of being registered under the Land Act 1994 and granted an injunction against the defendant's attempt to register the agreement.