THsf Consortium P/L v Brumby's Bakeries Ltd
[2002] QSC 120
•8 May 2002
SUPREME COURT OF QUEENSLAND
CITATION: THsf Consortium P/L v Brumby’s Bakeries Ltd [2002] QSC 120 PARTIES: THsfCONSORTIUM PTY LTD
ACN 096 586 499
(applicant)
v
BRUMBY’S BAKERIES LIMITED
ACN 010 471 048
(respondent)FILE NO/S: S 289 of 2002 DIVISION: Trial PROCEEDING: Application for an interlocutory injunction ORIGINATING COURT: Supreme Court at Townsville DELIVERED ON: 8 May 2002 DELIVERED AT: Townsville HEARING DATE: 3 May 2002 JUDGES: Cullinane J ORDER: Interlocutory injunction granted.
Upon the usual undertaking by the Applicant as to Damages I order that until further order;(a) that the Respondent itself and by its servants and/or agents be restrained until further order, from selling, advertising or displaying for sale or supplying hot or cold beverages or filled or made up sandwiches and/or rolls from the premises.
(b) the Respondent remove a sign placed by it on the exterior wall of the demised premises.
CATCHWORDS: CONTRACTS - TRADE AND COMMERCE - RESTRAINT OF TRADE - whether there was a serious issue to be tried - whether the balance of convenience favours the granting of an interlocutory injunction COUNSEL: T Moon for the applicant
M Martin for the respondentSOLICITORS: Connolly Suthers for the applicant
McCullough Robertson for the respondent
The Plaintiff/Applicant (the Applicant) seeks an interlocutory injunction restraining the Defendant/Respondent (the Respondent) from selling advertising or displaying for sale or supplying hot or cold beverages or filled or made up sandwiches and/or rolls from certain premises, the subject of a sub-lease between the Applicant and the Respondent dated 18th February 2002.
In addition the Applicant seeks an interlocutory mandatory injunction requiring the Respondent to remove a sign from the exterior wall of the demised premises.
I should add that upon the hearing of the application the Applicant sought to raise various other issues relating to the use of the premises without having obtained certain permits or authorisations. I refuse to allow the Applicant to do this on the hearing of the application because it had not given any adequate notice of its intention to do so to the Respondent.
The sub-lease referred to contains beside the words “permitted use”;
“You will be entitled to use the premises as a Bakery. The Sub-Lessor will not permit the same use in other premises within the building. Note that there is a convenience store that will sell normal convenience store breads".
It is common ground that the Respondent is engaging in the activity referred to in paragraph (1) of these reasons.
The Applicant has entered into a sub-lease of other premises in the building for the purposes of a coffee shop. The building is situated on the site of the Townsville General Hospital which has recently been constructed in the suburb of Douglas.
The Applicant has undertaken not to permit the use of any other part of the premises for the purposes of a coffee shop.
The tenant of the coffee shop is shortly to commence operations in the premises and has, through its solicitors, complained about the use by the Respondent of the bakery for the purposes that I have just described.
There is also said to be a vacant tenancy designated for use as a take away food outlet which the Applicant is attempting to let. A director of the Applicant’s property manager swears that the Respondent’s activities will make it difficult to let these premises for such purposes.
The principles to be applied on an application for an interlocutory injunction require a consideration of whether there is a serious issue to be tried and whether the balance of convenience favours the granting of the interlocutory injunction.
I was referred to dictionary definitions in which the term “bakery” is said to refer to a place where bread is baked or bread is baked and sold. It is clear that in the context of the present sub-lease it must be regarded as including both activities.
There was some argument advanced by the Respondent that the term “bakery” might be construed as including activities of the type complained of here. The Respondent also placed some reliance upon correspondence between the parties prior to the execution of the lease. In particular a letter signed by Mr Kopittke, a director of a company which is described as the “master franchisee North Queensland and New Zealand” for the Respondent in which he said under a paragraph headed “Permissible Use”:
“Hot bread bakery selling items included within Brumby’s product range from time to time which includes yeast raised goods, hot and cold beverages, pastries, cakes and pies, c.c./filled bread rolls".
This letter was written in the course of negotiations for the lease.
I do not think it is permissible to have regard to the correspondence leading up to the execution of the lease for the purposes of construing the lease. See Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 per Mason J at p.347. The intention of the parties must be established by taking the words used and affording them their ordinary meaning, although regard may be had, in the case of ambiguity to extrinsic evidence of matters which are and must be taken to have been known to both parties.
The Respondent was inclined to suggest that the correspondence in the absence of any challenge to what was contained in the letter might constitute a basis for an estoppel or that there might be a basis for contending that the Applicant had engaged in misleading or deceptive conduct. The defence has not yet been delivered and it is not immediately apparent upon what basis such a claim for an estoppel or misleading or deceptive conduct might be advanced.
I think that on the material before the court, the Applicant must be regarded as having a strongly arguable case on the issue of the construction of the permitted use.
I think it is also correct as the Applicant suggested, this is not a case in which it would be a simple matter to demonstrate the loss which it might suffer as a result of the alleged breach by the Respondent. There are considerations which I think militate in favour of the grant of the interlocutory injunction in relation to the use of the premises in the way complained of. The imminency of the occupation of the premises subleased for a coffee shop and the difficulty in obtaining a tenant for the premises designated for take away food are, I think, important considerations..
It was suggested that the Respondent might be exposed to action by the holder of a franchise granted by the Respondent in respect of the bakery business. The documentation placed before the court does not clearly demonstrate why this should be so but in any case assuming it to be so, I am not persuaded that that factor outweighs those which favour the granting of the interlocutory injunction.
Some reliance was placed upon plans which were sent to a person described as the construction manager of the company responsible for the construction of the building. These plans included items referrable to the activities sought to be restrained here. However the person concerned (Rowan Rex Greyling) swears that he was not aware of the terms of the sub-lease and he was not asked to give any consent to the use of the premises for any purpose and would not have been in any position to do so.
So far as the sign is concerned, the sub-lease prohibits the erection of a sign on the premises without the consent of the Applicant. It is common ground that no such consent was obtained. There is some evidence that a supervisor employed by the person engaged by the Respondent to fit out the shop spoke to two persons associated with the construction company about the signage and that it was approved by them.
This evidence is not the subject of any express response in the material filed by the Applicant but on the face of it, difficulties must arise in relation to any consent alleged to have been granted by persons associated with the construction company.
I think that the appropriate course to take is to grant the interlocutory injunction sought.
Upon the usual undertaking by the Applicant as to damages I order that until further order;
(a) that the Respondent itself and by its servants and/or agents be restrained until further order, from selling, advertising or displaying for sale or supplying hot or cold beverages or filled or made up sandwiches and/or rolls from the premises.
(b) the Respondent remove a sign placed by it on the exterior wall of the demised premises.
I reserve the costs of and incidental to this application to the trial judge.
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