JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SECURE PARKING (WA) PTY LTD -v- WILSON [2008] WASCA 268
CORAM: MARTIN CJ
BUSS JA
MURRAY AJA
HEARD: 21 AUGUST 2008
DELIVERED : 19 DECEMBER 2008
FILE NO/S: CACV 141 of 2005
BETWEEN: SECURE PARKING (WA) PTY LTD (ACN 073 500 160)
Appellant
AND
ALFRED KARL WILSON
First RespondentNULLAGINE INVESTMENTS PTY LTD (ACN 008 729 717)
Second RespondentPARKING ASSET MANAGEMENT (WA) PTY LTD (ACN 092 214 278)
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :LE MIERE J
Citation :SECURE PARKING (WA) PTY LTD -v- WILSON & ANOR [2005] WASC 264
File No :CIV 1074 of 2003
Catchwords:
Lease - Assignment - Where lessee sold its business to proposed assignee of lease - Where lessee also granted to proposed assignee all rights to receive all income and revenue from the operation of the business - Where lessee agreed with proposed assignee, pending obtaining the lessor's consent to the assignment, to comply with proposed assignee's directions - Lessor's consent sought but never obtained - Construction of contract - Whether contract included obligation by lessee to exercise options to renew the lease at proposed assignee's request - Implied terms - Duty of parties to cooperate - Doctrine of non derogation from grant - Successful appellant's right to restitution - Whether damages adequate remedy
Legislation:
Nil
Result:
Appeal allowed
Action remitted for assessment of damages
Category: A
Representation:
Counsel:
Appellant: Mr B W Rayment QC & Mr G R Hancy
First Respondent : Mr M H Zilko SC & Ms M Chaar
Second Respondent : Mr N D C Dillon
Third Respondent : No appearance
Solicitors:
Appellant: Talbot Olivier
First Respondent : Tottle Partners
Second Respondent : Su & Co
Third Respondent : Clayton Utz
Case(s) referred to in judgment(s):
Adelaide City Corporation v Jennings Industries Ltd (1985) 156 CLR 274
Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Bank of US v Bank of Washington (1832) 31 US 8
Birmingham, Dudley & District Banking Co v Ross (1888) 38 Ch D 295
Bowesco Pty Ltd (receiver and manager appointed) v Zohar [2007] FCAFC 1; (2007) 156 FCR 129
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153
Breen v Williams (1996) 186 CLR 71
British Leyland Motor Corporation Ltd v Armstrong Patents Co Ltd [1986] AC 577
Butt v M'Donald (1896) 7 QLJ 68
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Comptroller of Stamps (Victoria) v Howard‑Smith (1936) 54 CLR 614
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
Keep reading for free
Create a free CaseChat account to read Secure Parking (WA) Pty Ltd v Wilson and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2008] WASCA 268
- Decision Date
CaseChat Overview and Summary
The court was required to determine the nature of the agreement between the respondent and the purchaser, including whether it included an obligation on the respondent to exercise options to renew the lease at the purchaser's request. The court also had to consider the doctrine of non derogation from the grant, which prevents a lessee from derogating from the grant of the lease without the lessor's consent. Furthermore, the court needed to assess whether the appellant's right to restitution was sufficient or if damages were also appropriate. The court examined the terms of the agreement, the conduct of the parties, and the applicable legal principles to reach its decision.
The court found that the agreement between the respondent and the purchaser included an obligation on the respondent to exercise options to renew the lease at the purchaser's request. The court rejected the respondent's argument that the doctrine of non derogation from the grant precluded the enforceability of this obligation. The court also held that the appellant was entitled to restitution but not damages. The court found that the appellant's right to restitution was sufficient to compensate it for the loss of the net profits of the car parking business, and that damages were not an adequate remedy. The court allowed the appeal and remitted the action for assessment of damages.
The court ordered that the appeal be allowed and the action be remitted for assessment of damages. The court found that the agreement between the respondent and the purchaser included an obligation on the respondent to exercise options to renew the lease at the purchaser's request, and that the doctrine of non derogation from the grant did not preclude the enforceability of this obligation. The court also held that the appellant was entitled to restitution but not damages, and that the appellant's right to restitution was sufficient to compensate it for the loss of the net profits of the car parking business. The court's decision provides guidance on the enforceability of obligations to exercise options to renew a lease and the appropriate remedy for a lessor who is deprived of the net profits of a lease.
Orders
Orders of the court
Appeal allowed
Action remitted for assessment of damages
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.