Harrison v Inala Plaza Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Harrison v Inala Plaza Pty Ltd [2002] QSC 293

PARTIES:

WARREN GEORGE HARRISON
(applicant)
v
INALA PLAZA PTY LTD
ABN 67 081 899 247
(first respondent)
and
MEDIHELP GENERAL PRACTICE LIMITED
ACN 010 695 173
(second respondent)

FILE NO:

S7285 of 2002

DIVISION:

Trial Division

DELIVERED ON:

27 September 2002

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2002

JUDGE:

Mullins J

ORDER:

The originating application be dismissed

CATCHWORDS:

LANDLORD AND TENANT – RETAIL SHOP LEASE – SUBLETTING – premises leased in a shopping centre for permitted use of medical centre – whether proposed sublease of less than 10% of the area of the premises for use of pharmacy would amount to a breach of the tenant’s obligations to use the premises for medical centre only

LANDLORD AND TENANT – LEASE – CONSTRUCTION – whether permitted use of medical centre allowed for part of the premises to be used as a pharmacy – relevance of the ordinary usage of the words “medical centre” and that shop to be used as the medical centre is within shopping centre where each shop subject to separate lease and specific use – the use of “medical centre” does not include pharmacy

Crosland v North Sydney Council (2000) 109 LGERA 244
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Offshore NL v Southern Cross Exploration NL (1985) 3 NSWLR 337

PD McMurdo QC and ME Rackemann for the applicant
JS Douglas QC and M Gynther for the first respondent
RC Schulte for the second respondent

SOLICITORS:

Minter Ellison for the applicant
Corrs Chambers Westgarth Lawyers for the first respondent
John Nagel & Co for the second respondent

1. MULLINS J:  By originating application filed on 9 August 2002 the applicant seeks the following declarations:

“1.A declaration that the use of part of the premises presently leased by the first respondent to the second respondent, being the use under the proposed sub lease from the second respondent to the applicant according to the form of sub lease submitted by the solicitors for the second respondent to the first respondent under cover of a letter of 25 July 2002, is within the use permitted by clause 9.1 of the lease from the first respondent to the second respondent.

2.A declaration that by reason of clause 11 of the lease from the first respondent to the second respondent, the first respondent is bound to consent to the proposed sub lease to the applicant.

3.A declaration that the second respondent is entitled to sublet part of its premises to the applicant in accordance with the proposed sub lease notwithstanding the absence of the consent of the first respondent.” 

1. The premises which are referred to in the first declaration, which is sought by the applicant, are known as shop 1 in the shopping centre which is now called Inala Town Centre (“the centre”).  Inala Plaza Pty Ltd (“the first respondent”) is the assignee of the interest of Maembe Pty…