The Pharmacy Guild of Australia v Nectaria Nominees Pty Limited as Trustee for Nectaria No 2
[2019] ACTSC 382
•8 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Pharmacy Guild of Australia v Nectaria Nominees Pty Limited as Trustee for Nectaria No 2 |
Citation: | [2019] ACTSC 382 |
Hearing Date: | 8 November 2019 |
DecisionDate: | 8 November 2019 |
Before: | Burns J |
Decision: | See [12] |
Catchwords: | CIVIL LAW – CONTRACT LAW – Interlocutory injunction application – licence agreement – right to name building – right to install advertising signage – whether there is a serious question to be tried |
Parties: | The Pharmacy Guild of Australia (Plaintiff) Nectaria Nominees Pty Limited as Trustee for Nectaria No 2 (First Defendant) Debra Nominees Pty Limited as Trustee for Debra Nominees No 2 Trust (Second Defendant) |
Representation: | Counsel V Thomas (Plaintiff) P Walker SC (First and Second Defendant) |
| Solicitors Meridian Lawyers (Plaintiff) Trinity Law (First and Second Defendant) | |
File Number: | SC 551 of 2019 |
BURNS J:
I have before me an Originating Application by the Pharmacy Guild of Australia
(the Pharmacy Guild) against two defendants. The applicant is seeking orders, in effect, that the defendants be restrained until further order from licensing, facilitating, permitting or allowing any person, entity or organisation to install any sign bearing advertising, other than advertising used by the plaintiff, on the exterior of the building erected at
Block 2 Section 16 Division of Barton in the Australian Capital Territory. The defendants are the owners of this building. For convenience, I will refer to this building as
the Pharmacy Guild Building.
There is evidence before me that the Pharmacy Guild is an occupant of
the Pharmacy Guild Building. The affidavit of Douglas Edmund Raftesath, sworn on 6 November 2019 and read by the plaintiff, provides history as to the plaintiff's occupation of those premises. It is sufficient to note that at the present time, the Pharmacy Guild occupies premises in the building and has certain rights under a Licence Agreement, dated 1 July 2010. That Licence Agreement binds the two defendants to the Application. That has not been challenged.
As stated above, the dispute between the parties essentially revolves around a number of proposed signs which another occupant of the building proposes to install on the building with the permission of the defendants. The plaintiff alleges that the installation of the proposed signs breaches its rights under the Licence Agreement. On that basis, it seeks an interlocutory injunction prohibiting the installation of the signs until further order of the Court. There are a number of orders being pursued by the plaintiff but, broadly speaking, that is the nature of the relief sought.
The plaintiff has correctly identified that the present Application requires it to demonstrate that there is a serious question to be tried and that the balance of convenience favours the making of the orders sought by it. I should also note at this point that an undertaking as to damages has been offered by the plaintiff if the injunctive relief is granted.
The plaintiff's claim that the reasons why the installation of the proposed signs will breach its entitlements under the Licence Agreement falls into two separate arguments. The first argument is that it is a breach of the terms of Clause 2.1 of the Licence Agreement for the defendants to permit the proposed signage to be installed. The submission that is made on behalf of the plaintiff in that regard is that Clause 2.1 in particular, but also the Licence Agreement generally, grants to the plaintiff an exclusive right to install signage on the building. In my opinion, there is no prospect of the plaintiff succeeding on that argument.
The second argument, which is advanced by the plaintiff as an alternative to the first argument, is that the placement of any signs as proposed on the building, particularly taking into account the position where it is proposed the signs will be installed and the size of the signs, will lead the public to identify the building as the
Synergy Australia Building rather than the Pharmacy Guild Building. Further, it submits that this would be a disturbance to or derogation from the plaintiff's rights under the Licence Agreement.
I accept that for present purposes, the Licence Agreement grants to the plaintiff the exclusive right to name the building. The submission which is made against the plaintiff in that regard is that it is not unusual for occupants of buildings to have signage on the building even in circumstances where the occupant does not have a right to name the building.
It is a matter of some significance in my mind that the Licence Agreement does not grant an exclusive right to the plaintiff to install signage on the building. It follows from that, that the defendants must be entitled to permit signage to be installed by other occupants of the building. There is an argument at the present time as to whether signage of the nature which is proposed to be installed will be contrary to planning requirements, but that is a matter which I do not need to presently consider or resolve.
I accept that the position of the proposed signs is particularly prominent, but there is nothing on the signs to indicate that the building is named after the organisation who is referred to on the sign, that is, Synergy Australia. It is consistent with a sign indicating the presence of that organisation within the building. The plaintiff has apparently chosen to place the signage relating to the building name at the main entrance to the building. Perhaps that is understandable. However, there appears to have been a demonstrated intention on the plaintiff’s part to place signs in the positions where the defendants propose to allow Synergy Australia to install its signs. There is nothing in the proposed signage which would suggest that the building is being named after Synergy Australia.
In my opinion, the prospects of the plaintiff being successful with respect to its alternative argument is negligible and certainly not sufficient to justify granting the injunctive relief sought. I am not satisfied that there is a serious question to be tried in relation to this matter.
If the matter had turned to the balance of convenience issue, then I would have concluded that in circumstances where it was unclear whether the defendants had the right to suspend any permission that had been given contractually to Synergy Australia to erect the proposed signs, it would be inappropriate for the Court to make the orders sought by the plaintiff. Thus, the balance of convenience would not have supported the making of the orders sought.
Orders
I make the following orders:
(a)The present application for injunctive relief is refused.
(b)The plaintiff is to pay the defendants’ costs of the proceedings.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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