Owners Corporation Strata Plan 69470 & Ors v CGMB Company Pty Ltd & Ors [2007] NSWSC 634

Owners Corporation Strata Plan 69470 & Ors v CGMB Company Pty Ltd & Ors [2007] NSWSC 634

Owners and landlords are prohibited by the Strata Management Statement from using or permitting their lots to be used as fast food outlets, including by lessees; lease restricts tenant to use as a restaurant in accordance with by-laws and SMS, thus use as fast food outlet is a breach; defendants breached SMS by failing to enforce lease and restrain Idya's use.

Parties
First Plaintiff: Owners Corporation Strata Plan 69470; Second Plaintiff: David Ronald Lever; Third Plaintiff: Pamela Gay Lever; Fourth Plaintiff: Michael James Ryan; Fifth Plaintiff: Shaen Anne Ryan; Sixth Plaintiff: David Ernest Montgomery; Seventh Plaintiff: Gillian Gweneth Montgomery; Eighth Plaintiff: Eldina Sahinovic; Ninth Plaintiff: Michael Robert Layton; Tenth Plaintiff: Anne Jacqueline Layton; Eleventh Plaintiff: Amin Gamil Shamia; Twelfth Plaintiff: Mona Shamia; Thirteenth Plaintiff: Andrew Sean Wardle; First Defendant: CGMB Company Pty Ltd; Second Defendant/first Cross Claimant: John Anastasiou; Third Defendant/second Cross Claimant: Savva Anastasiou; Cross Defendant: Idya Pty Ltd
Jurisdiction
Australia
Judgment Date
22 June 2007
Procedural Posture
Civil / Judgment
Outcome
Injunctive relief granted
Legal Topics
Strata Title, Strata Management Statement, Lease Interpretation, Injunctions
Property Law Landlord and Tenant Strata Title Strata Management Statement Lease Interpretation Injunctions

Case Brief

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Parties

Owners Corporation Strata Plan 69470

First Plaintiff

David Ronald Lever

Second Plaintiff

Pamela Gay Lever

Third Plaintiff

Michael James Ryan

Fourth Plaintiff

Shaen Anne Ryan

Fifth Plaintiff

David Ernest Montgomery

Sixth Plaintiff

Gillian Gweneth Montgomery

Seventh Plaintiff

Eldina Sahinovic

Eighth Plaintiff

Michael Robert Layton

Ninth Plaintiff

Anne Jacqueline Layton

Tenth Plaintiff

Amin Gamil Shamia

Eleventh Plaintiff

Mona Shamia

Twelfth Plaintiff

Andrew Sean Wardle

Thirteenth Plaintiff

CGMB Company Pty Ltd

First Defendant

John Anastasiou

Second Defendant/first Cross Claimant

Savva Anastasiou

Third Defendant/second Cross Claimant

Idya Pty Ltd

Cross Defendant

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether owners of commercial lots breached Strata Management Statement by permitting lessee to operate fast food outlet
  2. 2 Whether lessee's use of lot as fast food outlet breached lease terms
  3. 3 Whether owner's conduct constituted waiver or estoppel

Ratio Decidendi

Owners and landlords are prohibited by the Strata Management Statement from using or permitting their lots to be used as fast food outlets, including by lessees; lease restricts tenant to use as a restaurant in accordance with by-laws and SMS, thus use as fast food outlet is a breach; defendants breached SMS by failing to enforce lease and restrain Idya's use.

Court Disposition

Injunctive relief granted

Orders

  • Defendants restrained from using or permitting lot 2 to be used as a fast food outlet
  • Defendants required to take all steps necessary to ensure cessation of fast food outlet operation from lot 2