8 It is on clause 7(b) that Lawton relied in its Notice to Remedy, and subsequently for termination.
9 On an application such as the present for an interlocutory injunction the question is whether there is a sufficiently seriously arguable case for a final injunction that, having regard to the balance of convenience, the granting of interlocutory relief is warranted. The dual elements of a seriously arguable claim for a final injunction and the balance of convenience are interrelated, in that the stronger the case on the claim for final relief the less will be required to tilt the balance of convenience, and similarly where the balance of convenience is firmly in favour of interlocutory relief, then a less strongly arguable case than otherwise might be required will suffice to justify an interlocutory injunction.
10 Where, in an interlocutory application for an injunction, a question of law arises, the prevailing view is that that question of law should be decided on the interlocutory application, unless the Judge considers that there are good reasons for not doing so - usually because there has been insufficient time to research the question, or that the question might be affected by the facts [D'Arcy v Burelli Investments Pty Limited (1987) 8 NSWLR 317, 320 (Young J)]. On this application, one of the important issues at least, which is potentially decisive, is a question of law; it seems to me possible to decide that question on this application.
11 Symbion founds its claim for final relief on three alternative bases. The first is essentially a question of law - namely, that assuming for the same sake of argument that it has ceased forever to conduct a general medical practice from the premises, that could not be a breach of clause 7(b) on its proper construction. The second is a factual issue, namely, that as a matter of fact Symbion has not ceased to carry on a general medical practice, nor done anything else such as to found a reasonable opinion on the part of Lawton that it would cause damage to the Lessor or tenants of the centre. The third alternative contention is that Symbion would in any event be entitled to relief against forfeiture.
12 As to the first of those contentions, I have already set out the terms of clause 7(b). The fundamental question for present purposes is whether (to take the words from the s 129 Notice of 5 August 2008) - assuming that the Lessee has "abandoned the leased premises or otherwise vacated, ceased to occupy or use them as a general practitioner centre and has since failed to operate any business on the leased premises and left them vacant" - it can be said that the Lessee, in contravention of clause 7(b), has done on the leased premises or the Centre anything which in the Lessor's reasonable opinion may cause damage to the Lessor, its tenants or other persons in or using the Centre or neighbouring properties.
13 Mr Harper SC, for the Lessee, submits that clause 7(b) is a prohibition on certain uses of the premises, or on doing positive acts on the premises or the Centre, but does not impose a positive obligation to maintain the business. He submits that it is not contravened by the Lessee ceasing to carry on business, even if as a result of the cessation of the business some damage is indirectly caused to the Lessor, tenants or other persons. Mr Alexis SC, for the Lessor, submits that the concept of "doing anything" in clause 7(b) extends, in effect, to permitting nothing to be done on the premises and their not to be used at all.
14 The question is illuminated by a number of cases. In Australian Safeway Stores Pty Ltd v Toorak Village Development Pty Ltd [1974] VR 268 the lease of premises used for a supermarket contained a covenant by the lessees:
Not without the consent in writing of the Lessor to use the demised premises for any other purpose than the purpose stated in the first Schedule hereto.
The Schedule stated:
The purpose for which the demised premises are to be used is for a supermarket business of the type customarily operated from time to time by the Lessee in its other stores of a similar size and type in the Melbourne metropolitan area.
15 It is well enough known that Australian Safeway Stores conducts very large supermarkets; it is likely that it was an anchor tenant. After unsuccessful negotiations by Safeway for the termination of the lease, it opened a new supermarket business a short distance away, and ceased actively to carry on business in the leased premises, but used them for no other purpose. The Supreme Court of Victoria held that Safeway's conduct did not breach the covenant nor contribute a repudiation of the lease. In particular, it was not a breach of the covenant not to use the premises for any propose other than a supermarket business.
16 In Tsangaris v Gaymark Investments Pty Ltd (1986) 82 FLR 269, a lease contained a covenant not to use the demised premises for any purpose other than an authorised purpose - namely, supermarket and storage - and a further covenant that the lessee would conduct its business on the demised premises in an orderly and a respectable manner. Maurice J in the Federal Court of Australia held that imposed no positive obligation on the lessee to conduct a business.
17 The distinction can be seen when those cases are compared to Moteks Pty Ltd v Matthews Pastoral Co Pty Ltd [1998] NSWCA 287, where there was a covenant:
To carry on in and upon the demised premises the business of a motel and licensed restaurant and to keep open and use the premises for that purpose at all times during the time of this lease ...