Saipan Holdings Pty Ltd v City Gym Sydney Pty Ltd [2023] NSWCA 55

Saipan Holdings Pty Ltd v City Gym Sydney Pty Ltd [2023] NSWCA 55

Item 22 imposed an obligation on the sub-lessor to provide the premises made good, which included effecting repairs to the leaking roof and otherwise making the premises water-tight. The primary judge was entitled to consider the parties' common awareness of the roof condition and the Perry Report, and expert evidence established that making the roof watertight required replacement of all roof sheeting, flashings, skylights and gutters. Although the Court considered that the words "pursuant to an insurance claim" more naturally supplied a temporal element than the construction adopted by the primary judge, nothing turned on that difference. The respondent's refusal of access did not...

Jurisdiction
Australia
Judgment Date
31 March 2023
Procedural Posture
Appeal in a Leases and Tenancies Dispute Concerning Construction of a Sub Lease Make Good Obligation and Access for Roof Works / Appeal From the Supreme Court of New South Wales, Equity Division, Decision of Darke J in City Gym Sydney Pty Ltd V Saipan Holdings Pty Ltd [2022] NSWSC 699
Outcome
Appeal dismissed with costs.
Legal Topics
['commercial Lease Construction' 'make Good Obligations' 'repairs and Maintenance' 'leaking Roof and Water Tight Premises' 'lessor Access to Premises' 'insurance Claim Funding of Rectification Works']
['leases and Tenancies' 'contract Law'] ['commercial Lease Construction' 'make Good Obligations' 'repairs and Maintenance' 'leaking Roof and Water Tight Premises' 'lessor Access to Premises' 'insurance Claim Funding of Rectification Works']

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Procedural Posture

Appeal in a Leases and Tenancies Dispute Concerning Construction of a Sub Lease Make Good Obligation and Access for Roof Works / Appeal From the Supreme Court of New South Wales, Equity Division, Decision of Darke J in City Gym Sydney Pty Ltd V Saipan Holdings Pty Ltd [2022] NSWSC 699

Legal Issues

  1. 1 ['Whether item 22 of the sub-lease obliged the sub-lessor to replace all roof sheets, flashings, skylights and gutters, or only to carry out lesser repairs sufficient to make the roof watertight.' 'Whether the primary judge erred by reading down or construing the phrase "repairs to the leaking roof be rectified" in item 22.' "Whether the primary judge impermissibly construed item 22 by reference to the parties' expectations or contemplations before entry into the sub-lease." 'Whether the words "pursuant to an insurance claim to be made by the Lessor prior to commencement" meant in accordance with or in conformity with the contemplated insurance claim, or supplied a temporal or consequential element.' "Whether the appellants were prevented from performing their make good obligations by the respondent's refusal to grant access to the premises."]

Ratio Decidendi

Item 22 imposed an obligation on the sub-lessor to provide the premises made good, which included effecting repairs to the leaking roof and otherwise making the premises water-tight. The primary judge was entitled to consider the parties' common awareness of the roof condition and the Perry Report, and expert evidence established that making the roof watertight required replacement of all roof sheeting, flashings, skylights and gutters. Although the Court considered that the words "pursuant to an insurance claim" more naturally supplied a temporal element than the construction adopted by the primary judge, nothing turned on that difference. The respondent's refusal of access did not...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']