Uckhan v A& J Verdi Pty Ltd [2010] NSWADT 223

Uckhan v A& J Verdi Pty Ltd [2010] NSWADT 223

The Applicants did not prove that the First Respondent's use of the premises, including the provision of meals under a restaurant licence and the availability of an automatic teller machine for customers, fell outside the agreed use of light meals and coffee shop. No term requiring the lessors to obtain council approval for the agreed use was implied by business efficacy, and clause 5.04 expressly placed responsibility on the tenant to maintain and renew required licences, permits and registrations. The First Respondent was therefore responsible for obtaining all necessary development approval for the use of the premises.

Jurisdiction
Australia
Judgment Date
10 September 2010
Procedural Posture
Retail Lease Dispute / Decision After Hearing on Confined Issues; Proceedings Listed for Further Directions
Outcome
Declarations made that the present use was not in breach of the lease and that the First Respondent was responsible for obtaining all necessary development approval; proceedings listed for further directions; no order for costs unless submissions were filed.
Legal Topics
['permitted Use of Leased Premises' 'use as Light Meals and Coffee Shop' 'restaurant Liquor Licence' 'responsibility for Development Approval' 'implied Terms and Business Efficacy']
['retail Leases' 'property Law' 'contract Law' 'planning and Development Approval' 'liquor Licensing'] ['permitted Use of Leased Premises' 'use as Light Meals and Coffee Shop' 'restaurant Liquor Licence' 'responsibility for Development Approval' 'implied Terms and Business Efficacy']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Retail Lease Dispute / Decision After Hearing on Confined Issues; Proceedings Listed for Further Directions

Legal Issues

  1. 1 ["Whether the First Respondent's present use of the premises was compliant with the terms of the lease agreement between the parties." 'Which party bore the obligation to obtain development consent or approval for the use permitted by the lease.']

Ratio Decidendi

The Applicants did not prove that the First Respondent's use of the premises, including the provision of meals under a restaurant licence and the availability of an automatic teller machine for customers, fell outside the agreed use of light meals and coffee shop. No term requiring the lessors to obtain council approval for the agreed use was implied by business efficacy, and clause 5.04 expressly placed responsibility on the tenant to maintain and renew required licences, permits and registrations. The First Respondent was therefore responsible for obtaining all necessary development approval for the use of the premises.

Court Disposition

Declarations made that the present use was not in breach of the lease and that the First Respondent was responsible for obtaining all necessary development approval; proceedings listed for further directions; no order for costs unless submissions were filed.

Orders

  • ['The present use by the First Respondent of the premises at 16/55-58 Cliff Road Wollongong NSW is declared not to be in breach of the lease agreement between the parties.' 'The First Respondent is declared to be responsible for obtaining all necessary development approval for the use of the premises.' 'These...