Conoid Pty Limited & Anor v International Theme Park Limited

[2000] NSWCA 189

NSW Court of Appeal

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Interrogate

Catchwords

1. Landlord and Tenant
2. › Retail leases
3. › Minimum term
4. › Sub-lease granted by periodic tenant
5. › Whether statutory extension of sub-lease inconsistent with terms of head lease
6. › Retail Leases Act 1994 (NSW), s 16(5)
1. Landlord and Tenant
2. › Sub-leases
3. › Term of sub-lease greater than period of head lease
4. › Periodic tenancy
5. › Effect of termination of head lease on sub-lease
6. › Conveyancing Act 1919 (NSW), s 127
1. Statutory Interpretation
2. › Meaning of 'inconsistency'
3. › Whether inconsistency requires impossibility of co-existence or extends to radical difference between rights or powers
4. › Retail Leases Act 1994 (NSW), s 16(5)
1. Contract
2. › Collateral contracts
3. › Inconsistency with main agreement
4. › Whether collateral obligation qualifying power under main agreement is inconsistent
5. › Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133

Quick Take

Section 16 of the Retail Leases Act 1994 (NSW) does not operate to extend a retail sub-lease beyond its original term where the head lease is a periodic tenancy, because the extension would be inconsistent with the sub-lessor's power to terminate the head lease without penalty. 'Inconsistency' in s 16(5) encompasses a radical difference between rights or powers, not merely impossibility of co-existence. The 'terms' of a head lease for the purposes of s 16(5) include powers and rights conferred on the lessee, not only obligations imposed on the lessee.