Tian Chen Limited v The Tower Limited (No 1) (2002) N2313

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: (2002) N2313
• Date: 08 November 2002
• Year: 2002

Full Title: Tian Chen Limited v The Tower Limited (No 1) (2002) N2313

Supreme Court: Kandakasi J

Judgment Delivered: 8 November 2002

1 INJUNCTIONS—Interlocutory injunction—Continuity of—Principles relevant to grant and continuity or not of—Serious questions raised in the proceedings—Balance of convenience favouring continuity of—Likelihood of irreparable damage not only to the plaintiff but the country and others considered—Interlocutory injunction ordered to continue.

2 STAMP DUTY—Lease agreement not stamp dutied—Admission and reliance on such document—In equity a party may still rely on such an agreement.

3 CONTRACTS—Lease agreement—Inserting date of possession by one party—No endorsement of insertion by either of the parties—No agreement of the parties on the correctness of the details inserted—Evidence show parties agreeing to leave it blank to be filled in later, conditional on certainty in drawings for a fit out and actual fit out of rented premises—Condition not yet fulfilled—No agreement on the date of possession.

4 AGENCY—Principle of usual and apparent agent considered and applied—Real estate agent of landlord in lease agreement giving tenant no choice but to engage an architect of the agent's choice—Landlord failed to disclose at the earliest opportunity to the tenant of any authority in its real estate agent to engage architects as the landlord's agent—Architect found to be agent of the landlord.

5 EQUITY—Real estate agent with apparent authority to bind the landlord caused tenant to engage an architect to do architectural drawings for its fit out—Delay in drawings and fit out—Tenant not in arrears—No invoice or demand for rents due served on tenant—No evidence of any serious default in payment of rents—Duty to pay rents made conditional on architectural drawings and fit out—Landlord's apparent architectural agent cause of delay in drawings and fit out—Tenant incurred substantial expenses in import of equipment and material required for the intended purpose of its lease—Equity and fairness dictate an injunction against termination of lease.

6 LANDLORD AND TENANT—Real estate agent having apparent authority to bind the landlord caused tenant to engage architect to do architectural drawings for its fit out—Delay in drawings and fit out—Tenant not in arrears—No invoice or demand for rents due served on tenant—No evidence of any serious default in payment of rents—Duty to pay rent made conditional on architectural drawings and fit out—Landlord's apparent architectural agent cause of delay in drawings and fit out—Tenant incurred substantial expenses in import of equipment and material required for the intended purpose of its lease—Equity and fairness dictate against termination of lease.

7 Wal Wine v Bill Giglmai [1990] PNGLR 462, Markscal Ltd v MRDC [1996] PNGLR 419, Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seamen's Union (1982) N393, AGK Pacific (NG) Ltd v Anderson (2000) N2062, Summers v Solomon [1857] 7 E & B 879, Pole v Leask (1863) 33 LJ Ch 155, Panaroma Developments (Guildford) Ltd v Fidelis Furnishing Fabrics [1971] 2 QB 711, Chapleo v Brunswick PBS (1881) 6 QBD 686, Grammar Corporation v Provetine and General Investments Ltd [1952] QB 147, Freeman and Lockyer (a Firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480; Jacobs v Morris [1902] 1 Ch 816, Overbrooke Estates Ltd v Glencombe Properties Ltd [1974] 1 WLR 1335, American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 and Smith v Inner London Education Authority [1978] 1 All ER 411 referred to

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Kandakasi J: This is an application by the defendant for a lifting of an interim injunction against it. The injunction was issued on the plaintiff's claim of the defendant taking steps to terminate a lease agreement between them for alleged non–payment of rents.

Initially, counsel for the defendant argued that the injunction should be lifted, because the lease agreement relied on by the plaintiff had not been stamp dutied and that it is not even in a stamp dutiable form. But that argument was abandoned following my suggestion to counsel that in equity the plaintiff may still sue on the lease agreement without reliance on the document constituting the lease. That suggestion was put to counsel having regard to judgments like that of Brunton J in Wal Wine v Bill Giglmai [1990] PNGLR 462.

So the application of the defendant proceeded on the basis that there was a lease agreement between the parties. The argument for the defendant was that as far as it was concerned, the agreement was for the rents to commence nine (9) months after the date of possessing. The date of possession was 22 November 2001.

That date was inserted in handwriting on the lease agreement which was eventually stamp dutied. There was no initialling of the insertion by either of the parties. The plaintiff argues that the rents were to commence 9 months after the date of possession. But, it does not agree that the date of possession was 22 November 2001. It argues that the date was left open for insertion after the architectural drawings (the drawings) for the plaintiff's fit out of the rented premises were completed. To date, the drawings have not yet been completed. As such, the date of possession has not yet been agreed upon. The delay means loss of business and more expenses to the plaintiff and it is very concerned. Out of this concern it has asked the defendants to ask its nominated architects, Pacific Architects Consortium (PNG) Limited (PAC) to act promptly to enable them to be in business by November this year.

The defendant has not formerly responded to the plaintiff's request and...