Legal Ease Pty Ltd v Murphy

[1995] QSC 203

IN THE SUPREME COURT
OF QUEENSLAND

No.  482 of 1995

Brisbane

[Legal Ease Pty Ltd v. Murphy & Anor]

LEGAL EASE PTY LTD
  A.C.N. 010 700 875

Plaintiff
  v.

JOHN WILLIAM MURPHY & PETER BERNARD ALLEN
  Defendant

JUDGMENT - MACKENZIE J.

Judgment Delivered 31 March 1995

The Notice of Motion seeks an injunction prohibiting the performance of certain kinds of building work between 7.am and 6.pm on weekdays during the refurbishment of Lennon's Hotel.  The applicant is a company specialising in recruitment of staff for legal firms.  It has premises on the 21st level of the building which houses offices on several levels as well as hotel rooms on lower levels.
           The renovation work commenced in January 1995 but was delayed due to insolvency of the original contractor and because of industrial action for some time.   The renovations started on floors below the applicant's premises and is progressing downwards.  There is evidence from an acoustic engineer that the level of noise, now that the work has reached the 16th floor is about half what it was when it was on the 19th floor and as the work progresses downwards the level of noise will progressively decrease.  The matter is complicated by reason of noisy construction work being carried out on the adjacent site of the former Myer store. The applicant bases the application principally upon an alleged breach of a covenant of quiet enjoyment.  There are provisions in pt.15 of the lease upon which the defendants rely, on the basis that they authorise the respondents to carry out works of this kind in a reasonable manner.
           I am satisfied that there are serious questions to be tried as to the relationship between the covenant and the other clauses and as to the proper principles to be applied in determining whether the alterations are being carried out in a reasonable manner, especially having regard to the fact that the renovations are for the benefit of the respondent's business and not for the benefit of the applicant (c.f. Vasile v. Perpetual Trustees W.A. Limited (1987) NSW Conv R 55-345, p.57122 at 57128).
           The more difficult question is where the balance of convenience lies.  The case for the applicant essentially is that because of the nature of its business it is necessary to conduct interviews and hold telephone conversations with persons seeking employment and with prospective employers after 5.pm in the evening.  There is some evidence disputing that this occurs every day but that is of little consequence in the overall scheme of things. Evidence was given of the inconvenience caused by the noise generated by the construction work and of apprehension that clients might not engage the services of the applicant if communication and other aspects of work were hindered by noise. There is no evidence of actual loss of business.
           The evidence on behalf of the respondents was to the effect that the noisy work was restricted to the period between 5.pm and 7.pm, as a result of a contractual stipulation on the part of the respondents that it be done then.  The reason why that period was stipulated was that it was considered to be the least offensive time so far as occupants of the building as a whole were concerned.  Although it was not spelled out explicitly, the assumption seems to be that the commercial tenants would generally finish work at about 5.pm while the clientele of the hotel, principally business persons, would be least inconvenienced by noise occurring during that period.  Seven pm was implied, at least, to be a significant time from the point of view of the business clientele settling in to the hotel rooms and dining at the hotel.
           There was also evidence that a period of less than 2 hours would be inadequate for enough work to be done to keep the project moving according to schedule and if there was a reduction in the period of work to, say, 1 hour the period over which the work would be extended was about 10 weeks and the cost would be of the order of $900,000 in terms of lost revenue and other costs.  As in the case of the applicant there was little evidence of actual loss of custom because of the renovations. Although it was said that a number of people did not book in when they were informed that renovations were being carried out, the occupancy rate was still running at a high level consistent with other hotels in the same range. The concern really was that because 600 new rooms in the Casino Hotel and Times Square are to become available soon, it was imperative to finish the renovations as soon as possible to remain competitive.
           Apart from that, the concern was expressed that if the noisy work had to be done between 6.pm and 8.pm as the applicant seeks, the prospect of clients deserting the hotel would become real.  It is apparent from what I have said the question of balance of convenience is itself finely balanced.  I am satisfied that both parties have real and genuine concerns about their position.  There are grounds for thinking that the worst of the noise from the Lennon's renovations, so far as it impacts on the applicant, is past and the level of the noise audible in the applicant's premises will progressively diminish as the work proceeds over the next two months and the location of the work moves further away from the applicant's premises.
           It was submitted that account should be taken of the fact that an application had only been made now when the noise commenced late in January.  However, it is plain that there have been negotiations, and interruptions to the work which have lessened the actual period of inconvenience.  It was also submitted that regard should be had to the offers made to relocate the applicant and that it was an indication of unreasonableness on the part of the applicant's Managing Director not to accept those offers.  I do not interpret her actions in that light having regard to the added inconvenience that those solutions would create.
           However, having said that the onus lies on the applicant to establish that the balance of convenience lies in her favour and, all things considered I am not satisfied that that onus has been discharged.  Accordingly the motion is refused.  Unless submissions to the contrary in writing are received no later than 4 pm on Tuesday, 4 April 1995, a copy of such submissions having been made available to the other party or parties no later than 10 am on 4 April 1995, the order as to costs is that the applicant pay the respondents' costs of the motion to be taxed.