Fitness First Australia Pty Limited v Fenshaw Pty Limited [2016] NSWSC 47

Fitness First Australia Pty Limited v Fenshaw Pty Limited [2016] NSWSC 47

Clause 4.1 of each lease does not require apportionment of outgoings and charges by reference to the proportion of leased floor space; all increases in Council rates, water rates, and land tax levied against the property at 522-524 The Kingsway, Miranda are 'in respect of the Premises' and are payable by the lessee. The defined term 'the Premises', construed with 'in respect of', encompasses a broad association to statutory outgoings levied against the property. Fitness First's proportional approach is unsupported in the leases, so its claim for repayment and declaratory relief is rejected.

Parties
Plaintiff/cross Defendant: Fitness First Australia Pty Limited; Defendant/cross Claimant: Fenshaw Pty Limited
Jurisdiction
Australia
Judgment Date
11 February 2016
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Statement of Claim dismissed. Fenshaw entitled to relief for unpaid outgoings since 2012. Fitness First to pay Fenshaw's costs. Parties directed to bring in Short Minutes of Orders.
Legal Topics
Commercial Leases, Construction and Interpretation of Outgoings Provisions
Contracts Real Property Commercial Leases Construction and Interpretation of Outgoings Provisions

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Parties

Fitness First Australia Pty Limited

Plaintiff/cross Defendant

Fenshaw Pty Limited

Defendant/cross Claimant

Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 Proper construction of outgoings provisions in commercial leases
  2. 2 Scope of 'in respect of the Premises' in lease obligations
  3. 3 Whether apportionment by floor space is required

Ratio Decidendi

Clause 4.1 of each lease does not require apportionment of outgoings and charges by reference to the proportion of leased floor space; all increases in Council rates, water rates, and land tax levied against the property at 522-524 The Kingsway, Miranda are 'in respect of the Premises' and are payable by the lessee. The defined term 'the Premises', construed with 'in respect of', encompasses a broad association to statutory outgoings levied against the property. Fitness First's proportional approach is unsupported in the leases, so its claim for repayment and declaratory relief is rejected.

Court Disposition

Statement of Claim dismissed. Fenshaw entitled to relief for unpaid outgoings since 2012. Fitness First to pay Fenshaw's costs. Parties directed to bring in Short Minutes of Orders.

Orders

  • Statement of Claim dismissed
  • Fitness First to pay Fenshaw's costs