Secure Parking (WA) Pty Ltd v Wilson

Secure Parking (WA) Pty Ltd, the appellant, sought to recover from Wilson, the respondent, the net profits of a car parking business for the period after the respondent took possession of the premises and operated the business. The respondent had been the tenant of the appellant but had sold its business to another party, which intended to take over the lease. The respondent and the purchaser agreed that the respondent would comply with the purchaser's directions until the appellant's consent to the assignment was obtained. The appellant refused to consent to the assignment and claimed that there was no contract between the respondent and the purchaser that included an obligation on the respondent to exercise options to renew the lease at the purchaser's request. The respondent counterclaimed for unpaid rent and damages for the appellant's breach of the lease. The primary judge found that there was an agreement between the respondent and the purchaser that included such an obligation, and that the appellant was entitled to restitution but not damages.

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.