18 And, at [196]:
For reasons given above Carpet Fashion has not established that having regard to all the circumstances, any reasonably anticipated interference with its use by reason of:
· the relocation notice or
· the circumstances in which the redevelopment and proposals were communicated to Carpet Fashion
was so substantial or material that it is to be regarded as rendering the premises unfit for their particular use. Notwithstanding the evidence given by Mr John as to the inappropriateness of the new Centre for Carpet Fashion's business, the evidence of Ms Smith that there were at least two retailers which could be appropriately described as 'bulky goods retailers' operating from the new Centre, is accepted. The problem may simply inhere in Mr John's personal opinion and anathema to being required to permit Carpet Fashion to trade in the new Centre, and this by reason of his general knowledge, understanding and beliefs based upon his experience as to situations which may and situations which may not on the balance of probabilities, permit satisfactory trading. But these proceedings necessarily require to be determined upon the appropriate application of legal principle and centrally fail by reason of the express terms of the lease.
19 The key finding above is at subparagraph (c) of [188].
20 Mr Warren has contended that his Honour's finding should be set aside for the reasons he advanced in argument. What is plain, however, is that what his Honour said was clearly available on the evidence and perfectly open for him to find. The documentary evidence, Mr Leyshon's evidence as well as Ms Smith's, lays a proper foundation for the conclusion in (c) and [196]. That his Honour did not find that Mr John was untruthful is beside the point. His Honour was entitled to accept and act upon Leyshon and Smith without disbelieving John.
21 It seems to me that his Honour was entitled to conclude that the appellant had not established that either the relocation notice or the circumstances in which the redevelopment proposals were communicated to it was so substantial as to render the premises unfit for their particular use.
22 One other matter should be mentioned. That is the definition of the word 'centre' in the lease. This question had never been pleaded, nor did it become part of the issues litigated or referred to in final submissions. That is, until his Honour raised it late in the day. It was never relied on directly by the appellant and if correct, would require evidence which was not before his Honour. The primary judge nevertheless dealt with the matter in [194] rejecting the argument.
23 Since the appellant did not raise the issue in the Notice of Grounds of Appeal I do not think that it would be appropriate to consider the matter.
24 In my opinion the appeal should be dismissed with costs.