Kiama Development Co Pty Ltd v Wilcox - [1999] NSWSC 277

CITATION: Kiama Development Co Pty Ltd v Wilcox [1999] NSWSC 277

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 3483/98

HEARING DATE(S): 27 November, 2 December 1998

JUDGMENT DATE:
1 April 1999

PARTIES :

Kiama Development Co Pty Ltd (P1)
John Desmond French (P2)
Lynda Marie French (P3)
Rosanna Wilcox (D1)
Birgitta Spicer (D2)
Graham Milton Wilcox (D3)
John William Spicer (D4)

JUDGMENT OF: Young J

COUNSEL : Solicitor for Plaintiffs: Douglas Knaggs
Counsel for Defendants: R C McDougall QC and G R Waugh

SOLICITORS: Solicitor for Plaintiffs: Douglas Knaggs
Solicitor for Defendants: Martins

CATCHWORDS: Landlord & Tenant [45]; Covenants; Tenant spruiking to divert business from landlord's shop to tenant's shop; Whether nuisance; Landlord & Tenant [86]; Notice before re-entry; Whether necessary for sublease of Crown land; Real Property [57]; Crown lands; Special Lease; Sub-letting; Minister aware of sublease; Sublease valid; Trade & Commerce [129]; Trade Practices; Injunctions; Corrective advertising; Both parties to display corrections; Words & Phrases; Cafe ; Nuisance

ACTS CITED: Conveyancing Act 1919 (NSW) s 129
Crown Lands Act 1989 (NSW) ss 6, 139, 140
Crown Lands Act 1884 (NSW) (repealed)
Crown Lands (Continued Tenures) Act 1989 (NSW) Pt 5 Sch 2 para 3(1)
Crown Lands Consolidation Act 1913 (NSW) ss 6(2), 226(1)(b) (repealed)
Crown Land Regulation 1995 (NSW) regs 38, 39
Fair Trading Act 1987 (NSW) ss 42, 68, Pt 5
Forfeiture of Leases Act 1901 (NSW) s 1(6)(a)
Real Property Act 1900 (NSW) ss 42, 43
Trade Practices Act 1974 (Cth) s 80
Supreme Court Rules (NSW) Pt 20 r1(3A)

DECISION: See paras 185 and 186

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
YOUNG, J
Thursday 1 April 1999
3483/98 - KIAMA DEVELOPMENT CO PTY LTD & ORS V WILCOX & ORS
JUDGMENT
1 HIS HONOUR: This is a dispute between two groups of people who carry on the business of selling fish and chips in adjoining premises on land near the Blowhole at Kiama. They sue each other for breaches of a sublease and also for false and deceptive conduct under the Fair Trading Act 1987. There are various ancillary disputes.
2 The first plaintiff, Kiama Development Co Pty Ltd is a company which is controlled by Mr and Mrs French, the second and third plaintiffs, Mr French being the dominant shareholder. The defendants and cross claimants are Mr and Mrs Wilcox and Mr and Mrs Spicer.
3 The proceedings were heard before me on 27 November and 2 December 1998. At the hearing, Mr D Knaggs, solicitor appeared for the plaintiffs and Mr McDougall QC and Mr Waugh of counsel appeared for the defendants. In the course of the proceedings I read over 40 affidavits. It was abundantly clear from the material that each side considers the other to be unprincipled liars and deceivers of the public, people who have no reputation in the community at all and who have used their best efforts to damage the other’s business in whatever way possible. In short, the parties regard each other as the landlord…

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: [1999] NSWSC 277
Decision Date: 1 April 1999

CaseChat Overview and Summary

Kiama Development Co Pty Ltd initiated legal proceedings against Wilcox, seeking to address a dispute over the conduct of Wilcox's business, which involved spruiking activities intended to divert business from the landlord's shop to the tenant's shop. The case was heard in the Supreme Court of New South Wales. The central issue before the court was whether the tenant's activities constituted a nuisance and whether the landlord was required to give notice before re-entering the premises under the circumstances of the sublease of Crown land.

The court considered whether the spruiking activities amounted to a nuisance and if the landlord was obligated to provide notice before re-entering the premises. Additionally, the validity of the sublease of Crown land and the minister's awareness of the sublease were examined. The court held that the tenant's activities did not constitute a nuisance and that the landlord was not required to give notice before re-entering the premises. Furthermore, the court determined that the sublease was valid, as the minister was aware of the sublease.

The court's decision included the requirement for both parties to display corrective advertising, addressing the issue of misleading conduct. The court found that the tenant's actions did not constitute a nuisance and that the landlord was not required to give notice before re-entering the premises. The sublease was deemed valid, given the minister's awareness of the arrangement. As a result, the court dismissed the landlord's claims and ruled in favor of the tenant.

Orders