Aussie Traveller Pty Ltd v Marklea Pty Ltd
[1998] 1 QDR 1(Judgment by: Fitzgerald P)
Aussie Traveller Pty Ltd
vMarklea Pty Ltd
Judges:
Fitzgerald PMcPherson JA
Thomas J
Judgment date: 11 February 1997
Judgment by:
Fitzgerald P
The circumstances giving rise to this appeal are set out in the reasons for judgment of the other members of the Court.
The substantial issue for determination on this appeal is whether Aussie Traveller Pty Ltd established that Marklea Pty Ltd is liable to it for breach of the lease agreement by reference to the effect on Aussie Traveller of the activities conducted in the adjoining premises by another of Marklea's tenants, Top Flight. It was not in dispute that Marklea's liability was the same as it would have been if it, not Shonafield Pty Ltd, had made the agreement with Aussie Traveller.
Apart from an option of renewal, the lease agreement did not contain any express promises by Marklea except "... to let ... the ... premises ... to be held by ... Aussie Traveller Pty Ltd as Tenant ...". However, cl. 4, contained a promise by Aussie Traveller "[n]ot to use or permit to be used the premises or any part hereof for any purpose other than a manufacturing and sale of new/repaired caravan awnings/annexes and camping equipment"; by implication, Marklea promised that Aussie Traveller might use the premises for that purpose, as it did. For Aussie Traveller to hold its judgment against Marklea, it must establish that there was a further implied promise by Marklea that Aussie Traveller's permitted use of the premises, would not be unreasonably disturbed by Marklea or another of its tenants.1
There are two possible bases for the implication of such a promise; one is an implication by law arising from the nature of the contract between Aussie Traveller and Marklea, i.e., a lease agreement; the other is an implication of fact, based on the presumed intention of the parties because it was necessary to give business efficacy to their contract.2 Even if the cases, a number of which are referred to by the other members of the Court, leave it open to question whether such a promise should be implied as a matter of law, I am of opinion that its implication as a matter of fact is warranted.3 I therefore agree that Marklea is liable to Aussie Traveller for damages for breach of the lease agreement.
I also agree with the reasons of the other members of the Court for concluding that the respective appeals in relation to the amounts awarded should be dismissed except to the limited extent which they have indicated. Nothing was pointed to in the lease agreement or the Property Law Act 1974 which entitled Marklea to any amount in respect of Aussie Traveller's occupation of the premises after 31 March 1995 in excess of the rent which would have been payable for that period had the lease agreement continued until Aussie Traveller vacated the premises.
I therefore agree with the orders proposed, save that I can see no sufficient reason to justify an order that Aussie Traveller pay Marklea's costs of Aussie Traveller's appeal, which enjoyed limited success. However, in the circumstances, there is no purpose in discussing that further.