P Sardelic Nominees Pty Ltd v ANILIA Pty Ltd

[2002] WASC 288

P SARDELIC NOMINEES PTY LTD & ANOR -v- ANILIA PTY LTD & ORS [2002] WASC 288

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 288
Case No:	CIV:2554/2002	Heard:	14 NOVEMBER 2002
Coram:	EM HEENAN J	Delivered:	14/11/02
No of pages:	5	Judgment Part:	1 of 1
Result:	Interlocutory injunction refused
Category:	B
PDF Version

Parties:	P SARDELIC NOMINEES PTY LTD (ACN 008 723 395) N & N PSALTIS NOMINEES PTY LTD (ACN 008 788 449) ANILIA PTY LTD (ACN 009 392 330) HUMICH NOMINEES PTY LTD (ACN 008 815 718) IVAN HUMICH
Catchwords:	Landlord and tenant Lease of commercial retail premises "Stay open" covenant Lessee vacating premises Alleged inducements by defendants to tenant in interference with contractual relations Application for injunctions to restrain defendants assisting lessee to relocate in other premises Balance of convenience Injunction refused
Legislation:	Commercial Tenancy Act (Retail Shops) Agreement Act 1985, s 12C
Case References:	Nil Allstate Life Assurance Co v Australia and New Zealand Banking Group Limited (1995) 58 FCR 26; 130 ALR 469 Australian and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662 D C Thompson & Co Ltd v Deakin [1952] 1 Ch 646 Muschinski v Dodds (1985) 160 CLR 583 Northern Territory of Australia v Mengel (1995) 129 ALR 1 Sanders v Snell (1997) 143 ALR 426 Tszyu v Fightvision Pty Ltd (1999) 47 NSWLR 473

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : P SARDELIC NOMINEES PTY LTD & ANOR -v- ANILIA PTY LTD & ORS [2002] WASC 288 CORAM : EM HEENAN J HEARD : 14 NOVEMBER 2002 DELIVERED : 14 NOVEMBER 2002 FILE NO/S : CIV 2554 of 2002 BETWEEN : P SARDELIC NOMINEES PTY LTD (ACN 008 723 395)

N & N PSALTIS NOMINEES PTY LTD (ACN 008 788 449)
Plaintiffs

AND

ANILIA PTY LTD (ACN 009 392 330)
First Defendant

HUMICH NOMINEES PTY LTD (ACN 008 815 718)
Second Defendant

IVAN HUMICH
Third Defendant

Catchwords:

Landlord and tenant - Lease of commercial retail premises - "Stay open" covenant - Lessee vacating premises - Alleged inducements by defendants to tenant in interference with contractual relations - Application for injunctions to restrain defendants assisting lessee to relocate in other premises - Balance of convenience - Injunction refused

(Page 2)

Legislation:

Commercial Tenancy Act (Retail Shops) Agreement Act 1985, s 12C

Result:

Interlocutory injunction refused

Category: B

Representation:

Counsel:

Plaintiffs : Mr A D Wilson
First Defendant : Mr M C Hotchkin
Second Defendant : Mr M C Hotchkin
Third Defendant : Mr M C Hotchkin

Solicitors:

Plaintiffs : Frichot & Frichot
First Defendant : Hotchkin Hanly
Second Defendant : Hotchkin Hanly
Third Defendant : Hotchkin Hanly

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Allstate Life Assurance Co v Australia and New Zealand Banking Group Limited (1995) 58 FCR 26; 130 ALR 469
Australian and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662
D C Thompson & Co Ltd v Deakin [1952] 1 Ch 646
Muschinski v Dodds (1985) 160 CLR 583
Northern Territory of Australia v Mengel (1995) 129 ALR 1
Sanders v Snell (1997) 143 ALR 426
Tszyu v Fightvision Pty Ltd (1999) 47 NSWLR 473

(Page 3)

1 EM HEENAN J: By this action the plaintiffs, P Sardelic Nominees Pty Ltd and N & N Psaltis Nominees Pty Ltd, seek an injunction and damages against the defendants for alleged interference with contractual relations between them and their tenant, D'Angelo and Kissick Pty Ltd (D'Angelo and Kissick). D'Angelo and Kissick has, until some months ago, been one of the tenants of the plaintiffs' shopping centre at Hampton Road, South Fremantle and, pursuant to an assigned lease, has been operating and conducting a newsagency and Lotto business from those premises at Shop No 10.

2 In the lease there is cl 19 which obliges the lessee to use the leased premises only for the purpose of carrying on the particular nominated business and not to use them in any manner which would conflict with any other tenants at the centre. Further, the lease obliges the lessee to carry on the business in a proper and efficient manner, to keep the leased premises adequately stocked and open for business during normal business hours or such hours as are allowed under any licence or by any law. The plaintiffs' counsel has aptly referred to this clause as a "stay-open" clause.

3 The submissions before me indicate that the tenant lessee, D'Angelo and Kissick, has been in arrear in the payment of rent under the lease and has been wanting to sell the business to another lessee for some time, but without success. It has emerged that the defendants, by whom another shopping centre nearby is conducted, have entered into agreements with D'Angelo and Kissick offering that company a lease or tenancy in their shopping centre at Shop No 5, and, conditional upon a number of releases and other matters, have agreed to purchase the newsagency and Lotto business once transferred to the new premises. Pursuant to those agreements, D'Angelo and Kissick has vacated the plaintiffs' centre at Shop 10 and has moved to Shop 5 in the defendants' premises. It is also proceeding to complete or is attempting to complete the various obligations under the executory contracts for the grant of a lease from, and the sale of the business to, the defendants or some of them.

4 This conduct by D'Angelo and Kissick has generated other litigation between this company and the present plaintiffs. The plaintiffs have sued D'Angelo and Kissick in separate proceedings alleging a breach of the lease and have sought an injunction, among other relief, to prevent D'Angelo and Kissick taking steps to transfer the Lotto licence to Shop 5. Attempts made by D'Angelo and Kissick to have that injunction discharged were refused by Scott J on 8 November, although liberty has

(Page 4)

been reserved for the application to discharge the injunction to be renewed in certain eventualities.

5 In these present proceedings the plaintiffs, as owners and lessors of Shop 10, seek injunctions and damages against the defendants for inducing D'Angelo and Kissick to breach the terms of the lease. They submit that knowledge of the existence of such a lease and of the existence of an obligation to maintain the business at those premises should be inferred against the defendants and that the terms of the contracts between the present defendants and D'Angelo and Kissick in relation to the lease of Shop 5 and in relation to the purchase of the business are such as to show that deliberate inducements or incentives have been offered to entice D'Angelo and Kissick to abandon its occupation and business at Shop 10.

6 The plaintiffs also submit that the balance of convenience favours the grant of an injunction to prevent the defendants offering any further encouragement to assist D'Angelo and Kissick to complete the move into Shop 5. They submit that such relief would have the result of D'Angelo and Kissick returning to Shop 10 and remedying the breach of the terms of its lease of that property.

7 Opposed to these applications is the position of the defendants which can be summarised this way. The defendants submit, first, that there is no evidence to establish an intention by them to interfere with contractual relations between D'Angelo and Kissick and the plaintiffs and that such an intention is an essential ingredient in the tort of unlawful interference with contractual relations. That submission is reinforced by their second submission which puts the situation in a more positive light from the defendants' point of view. This asserts that the evidence is to the contrary and that the contractual terms imply that the defendants were scrupulous to ensure that all necessary permissions, authorities and approvals for the move from one shop to the other would be granted. This is an argument which rests heavily upon the terms of special condition 1 in the annexure to the contract of sale and purchase of the newsagency and Lotto business by Anilia from D'Angelo and Kissick. I should say that this appears to me to be an ambitious construction of the terms of those special conditions, but it is not necessary for me to make a final determination of their effect this morning.

8 Thirdly, the defendants say that there can be no tortious liability by them to the plaintiff because, in fact, there can be no breach by D'Angelo and Kissick of the terms of the lease on the grounds that the "stay-open"

(Page 5)

clause, cl 19, is void. The reason for its alleged voidness is that it is a fresh lease entered into since the amendments to the Commercial Tenancy (Retail Shops) Agreement Act 1985 so that s 12C of that Act, as amended, renders unenforceable and ineffective clauses such as the "stay-open" clause.

9 In this state of controversy it appears to me that there are serious questions to be tried as to whether or not there has been an intentional interference with the contractual relations existing between the plaintiffs and their tenant. When it comes to considering the balance of convenience, however, it seems to me that, to use the old metaphor, the bird has flown, and that with the location of D'Angelo and Kissick in the new premises, with a web of attendant contractual relations which may or may not oblige them to the defendants as well as to the plaintiffs, it is unlikely that a return to Shop 10 can be accomplished, even if an injunction, as sought by the plaintiffs, were to be granted. Rather, the effect of granting an injunction would seem to be that it would make a complicated situation worse and hasten the possibility that there may be an insolvency or liquidation of D'Angelo and Kissick Pty Ltd.

10 This inclines me to the view that it would be preferable, in this instance, to leave the plaintiffs to their action for damages against the present defendants and against D'Angelo and Kissick than to grant an interlocutory or other injunction. For that discretionary reason I refuse the application for the interlocutory injunction.