Fancy a Bite Pty Limited v IOF Custodian Pty Limited [2015] NSWCATCD 28

Fancy a Bite Pty Limited v IOF Custodian Pty Limited [2015] NSWCATCD 28

The applicant has a reasonably arguable case on the invalidity of the demolition notice, and the balance of convenience supports interim relief. While an undertaking as to damages is normally required, in these short-term specific circumstances and given the applicant's financial inability, the Tribunal's discretion is exercised to dispense with that requirement until further order.

Jurisdiction
Australia
Judgment Date
11 March 2015
Procedural Posture
Interim Application / Interlocutory Decision on Interim Orders
Outcome
Interim injunctive relief granted; undertaking as to damages excused until further order.
Legal Topics
['retail Leases' 'demolition Notice' 'injunctive Relief' 'undertaking as to Damages' 'balance of Convenience']
['property Law' 'commercial Law'] ['retail Leases' 'demolition Notice' 'injunctive Relief' 'undertaking as to Damages' 'balance of Convenience']

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Procedural Posture

Interim Application / Interlocutory Decision on Interim Orders

Legal Issues

  1. 1 ['Whether the demolition notice issued by the respondent is valid under clause 26 of the lease and s 35 of the Retail Leases Act 1994' 'Whether the applicant is required to give an undertaking as to damages as a precondition to interim injunctive relief']

Ratio Decidendi

The applicant has a reasonably arguable case on the invalidity of the demolition notice, and the balance of convenience supports interim relief. While an undertaking as to damages is normally required, in these short-term specific circumstances and given the applicant's financial inability, the Tribunal's discretion is exercised to dispense with that requirement until further order.

Court Disposition

Interim injunctive relief granted; undertaking as to damages excused until further order.

Orders

  • ["Respondent restrained from excluding applicant from retail shop premises known as shop F2, Food Court Level, 99 Walker Street, North Sydney NSW and from interfering with applicant's use and occupation of the premises, until further order of the Tribunal." 'Applicant excused from providing to the respondent an...