Kimale P/L v Morial P/L - [2005] QSC 215

SUPREME COURT OF QUEENSLAND

CITATION:

Kimale P/L v Morial P/L & Anor [2005] QSC 215

PARTIES:

KIMALE PTY LTD ACN 010 003 442
(applicant)
v
MORIAL PTY LTD ACN 070 145 407
(first respondent)
and
ATLAS PROPERTY SOLUTIONS PTY LTD ACN 113 071 891
(second respondent)

FILE NO:

BS4533 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application for interlocutory injunction

DELIVERED ON:

13 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

7 July 2005

JUDGE:

Wilson J

ORDER:

Application dismissed.

CATCHWORDS:

CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – where the contract was a commercial lease for a shop in a shopping centre - where the contract contained an exclusivity clause – where the applicant contends there has been a breach of the exclusivity provision – where the applicant seeks an interlocutory injunction to enforce the exclusivity provision – whether there is a serious question to be tried – whether the balance of convenience favours the grant of an interlocutory injunction

Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Limited [1991] 1 QdR 301, applied
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, cited
Multinail Australia Pty Ltd v Pryda (Aust) Pty Ltd [2002] QSC 105, cited
Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 997, cited

COUNSEL:

PW Hackett for the applicant
KE Downes for the first respondent

MD Martin for the second respondent

SOLICITORS:

AM McNally for the applicant
McCullough Robertson for the first respondent
Baker Johnson for the second respondent

Wilson J: The applicant has operated a real estate agency Eureka Realty at a shopping centre in Deception Bay for about 25 years. By an originating application filed on 3 June 2005, it seeks an interlocutory injunction to enforce an exclusivity provision alleged to be contained in its lease and pursuant to an oral agreement on the basis that –

(a)the first respondent (the landlord) is in breach of the lease and agreement respectively;
(b)the second respondent (another real estate agent now operating at the same shopping centre) has induced the first respondent’s breach of contract; and
(c)the second respondent is passing itself off as the applicant by conducting the same business from the shopping centre using the same corporate colour schemes, signage and premises layout.

Over the years the applicant has rented different shops in the shopping centre pursuant to written and oral leases. More particularly it occupied shop 8 (after being relocated from shop 46) until its lease, which apparently it never executed, expired on 31 March 2000; between 31 March 2000 and about late 2002 it was a monthly tenant of shop 8; then it moved temporarily to shop 15; and it now occupies shop 12 pursuant to a written lease for 5 years from 12 May 2003. It contains the following provision: -

“4.35 Exclusivity
The Lessor agrees that the Lessee will be entitled to exclusivity within the Centre for its Permitted Use for so long as the current…

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: [2005] QSC 215
Decision Date: 13 July 2005

CaseChat Overview and Summary

Kimale P/L, the tenant of a shop in a shopping centre, brought an application against Morial P/L, the shopping centre’s operator, for an interlocutory injunction to enforce an exclusivity clause in their lease agreement. The tenant alleged that the operator had breached the exclusivity clause by allowing another business to operate within the shopping centre, which the tenant claimed would adversely affect its business. The court was tasked with determining whether there was a serious question to be tried regarding the alleged breach and whether the balance of convenience favoured granting the injunction.

The court examined the terms of the lease agreement, the nature of the exclusivity clause, and the evidence presented by both parties regarding the alleged breach. The court considered whether the tenant had made out a prima facie case for the breach of the exclusivity clause and whether there was a sufficient likelihood that the tenant would succeed at trial. The court also assessed the potential harm to the tenant if the injunction was not granted, as well as the harm to the operator if the injunction was granted. The court found that the tenant had not demonstrated a serious question to be tried and that the balance of convenience did not favour the grant of an interlocutory injunction.

In light of the above, the court dismissed the application for an interlocutory injunction. The court held that the tenant had not established a sufficient case for the alleged breach of the exclusivity clause, and that the balance of convenience did not favour the grant of an injunction. The court noted that the tenant’s application was premature, as the issue of the alleged breach was yet to be fully investigated and determined. The court further held that the tenant had not demonstrated any significant harm that would result from the alleged breach, and that the operator would suffer significant harm if the injunction was granted. The court concluded that the application should be dismissed.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kimale P/L v Morial P/L & Anor [2005] QSC 215
PARTIES:	KIMALE PTY LTD ACN 010 003 442 (applicant) v MORIAL PTY LTD ACN 070 145 407 (first respondent) and ATLAS PROPERTY SOLUTIONS PTY LTD ACN 113 071 891 (second respondent)
FILE NO:	BS4533 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application for interlocutory injunction
DELIVERED ON:	13 July 2005
DELIVERED AT:	Brisbane
HEARING DATE:	7 July 2005
JUDGE:	Wilson J
ORDER:	Application dismissed.
CATCHWORDS:	CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – where the contract was a commercial lease for a shop in a shopping centre - where the contract contained an exclusivity clause – where the applicant contends there has been a breach of the exclusivity provision – where the applicant seeks an interlocutory injunction to enforce the exclusivity provision – whether there is a serious question to be tried – whether the balance of convenience favours the grant of an interlocutory injunction Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Limited [1991] 1 QdR 301, applied Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, cited Multinail Australia Pty Ltd v Pryda (Aust) Pty Ltd [2002] QSC 105, cited Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 997, cited
COUNSEL:	PW Hackett for the applicant KE Downes for the first respondent MD Martin for the second respondent
SOLICITORS:	AM McNally for the applicant McCullough Robertson for the first respondent Baker Johnson for the second respondent