Summary

The landlords of a shopping centre were granted an interim injunction, pending trial, restraining the tenants of retail premises from creating or maintaining displays in their shop front consisting of lingerie and sexual paraphernalia that might be regarded as indecent or offensive.

Facts

The applicant tenants (W) applied for an injunction restraining the respondent landlords (L) from maintaining hoardings across the shop front of W's premises. L applied for an injunction restraining W from creating or maintaining displays in their shop front consisting of lingerie and sexual paraphernalia that L regarded as indecent or offensive. W, the tenants of unoccupied retail premises in a shopping centre, started to fill their shop front with several mannequins sporting very provocative lingerie and other styles of overtly sexual women's underwear. As originally displayed, the mannequins sported whips and manacles, and there were lengths of cable on the floor. The whips and manacles were then taken out, and signs displayed an identity for the shop as "Growlers - Lingerie and Adult Fun" which it said was "Coming soon". There was evidence that the word "growler" was modern slang for female sexual parts. On the doors and windows were outsized lip-shaped lipstick prints. The display provoked protests and complaints from customers and other members of the public. No trading had been going on at the shop. To obscure the display, L erected hoardings around the premises that were physically attached to the shop front. W took them down, and L re-erected them. The parties applied for injunctive relief. L sought to restrain the signage and display under two covenants in W's lease. Clause 12 of the lease prohibited the premises from being used, among other things, for any offensive trade that was a nuisance and had an effect on nearby occupants. Clause 14 prevented the exhibition of any offensive or unsightly signs or advertising on the window or exterior of the shop. L contended that there was a serious, arguable case that W had contravened those covenants, and that in the absence of an interim injunction, damages would not be an appropriate remedy. W agreed to change the word "Growlers" and to remove the "Lingerie and Adult Fun" rubric and lipstick prints. W submitted that what was left was effectively a lingerie display, and pointed to a nearby retail outlet that had similar underwear in its window. W sought the removal of the hoardings from its premises on the basis that the obscuring of their shop front was a derogation from the grant of their lease. L accepted that the hoardings were currently a trespass since they were attached to W's premises, but argued that there was no derogation where the hoardings had not obstructed the view of trading premises, or of a display that was legitimate.

Held

(1) L had established an arguable case that there were serious questions to be tried concerning whether W's display was offensive in the sense of giving offence to third parties; whether a display without trading could be a breach of the covenants; whether anything relevantly offensive had occurred in the instant case; and, marginally, whether a display physically inside the window of W's premises was capable of being treated as a breach of a covenant that ostensibly prevented signage on the window or exterior. There was plenty of evidence that the display had caused offence to members of the public; the removal of the whips and manacles and the changes to the wording of signs was perhaps an implicit acknowledgement of that fact. Further, it was no answer to an argument that trade could not be seen to give offence because someone else was doing it unchallenged nearby. In the circumstances, damages would not be an adequate remedy for L if they had a good claim where the sort of damage that could result to their shopping centre from the maintenance of an offensive display was not easily calculable in terms of money, though the potential effect on custom and therefore lettability and rents was obvious. On the other hand, there was no question that, currently, W would suffer any loss at all if they were forced to remove the display, as they were not trading. The instant case was, therefore, an appropriate one in which to grant an interim injunction in L's favour pending trial. That relief would comprise elements following the terms of the relevant parts of the two covenants, together with a further injunction requiring the removal of the present display, and a prohibition on the substitution of similar displays having sexually suggestive and explicit content whether through clothing, equipment or otherwise. (2) Where W were not trading from the premises there was no trade to be advertised by a shop front display, and L had not demonstrated any intention to block a legitimate trading display. The case for an injunction forcing L to remove the hoardings had not been made out so far as the future was concerned, although, as a matter of discretion, L would be required to remove the hoardings within two working days of the removal of the present display at W's shop.

Applications granted in part