32 On its face, a more relevant provision of the lease might be thought to be clause 13.26 concerning legal and other costs. However, although it was mentioned at some stage, it was not in the end relied on on behalf of Gurbiel. I take it that the reason for that is because its drafting is so unsatisfactory that it is very difficult to spell out of it the imposition of liability on the guarantor. It has words missing, which in my view could only be inserted by an impermissible engagement in guess work, and its syntax is so broken as to make virtually no sense. In the end, it was not relied on.
33 The facts concerning this matter are that the s 104 complaint was made in July 2005. It related to a period from the time that the lessee commenced to operate this business in June 2005. It related, most relevantly, to the emanation of noise from the premises to an excessive degree late at night. Central to the complaint was an allegation that the premises were trading contrary to the development consent, which permitted the operation of the premises only to 10pm. The complaint was made by a Superintendent of Police. Part of the outcome sought was that the premises should operate only within the hours permitted by the development consent.
34 The s 104 complaint led to the appointment of an inquiry before the Liquor Administration Board. Since the powers of the Board after such an inquiry include the imposition of conditions on the licence which the plaintiff was not prepared to undergo, the plaintiff paid the sum of costs mentioned to be represented before the inquiry.
35 It was not conceded on behalf of the lessee or Braune that the noise from the hotel was objectively such as to disturb unduly the quiet and good order of the neighbourhood, although it would appear that steps were being taken on behalf of the lessee to improve soundproofing.
36 However, despite Gurbiel incurring thousands of dollars of costs in respect of the s 104 inquiry, there is a complete blank in the evidence as to what the findings of the inquiry were. The evidence does not reveal that any finding was made by the inquiry. In Braune's belief, this was because a complaint that the operation of the premises was outside the hours of the development consent could not be initiated by the Police, but only by the Council. Certainly, there was no evidence that there was any adverse finding by the inquiry concerning the lessee's operation of the premises. Therefore, the licence suffered no detriment as a result of the inquiry. Certainly, for an obligation to be imposed on the guarantor for the consequences of a breach, a finding must be made that the lessee or licensee has done or suffered to be done an:
"act, matter or thing in or about the Premises whereby the Licence may be or become liable to be cancelled or suspended ... imperilled or jeopardised, or may be made subject to conditions."