Construction Technologies Australia Pty Ltd v Doueihi & 4 Ors (No. 3) [2015] NSWSC 1850

Construction Technologies Australia Pty Ltd v Doueihi & 4 Ors (No. 3) [2015] NSWSC 1850

CTA was not in breach of its undertaking to do all things necessary to obtain regulatory approvals by not lodging an appeal to the Land and Environment Court from the deemed refusal; it was reasonable to await council's decision while the application was still under active consideration. The orders only required the defendants to consent to applications, not to refrain from objecting to them, and did not entitle CTA to additional car parking rights not included in the lease.

Parties
Plaintiff: Construction Technologies Australia Pty Ltd; 1st Defendant: Edward Doueihi; 2nd Defendant: Katrina Scott; 3rd Defendant: Maria Vatselias; 4th Defendant: Nicole Hogan; 5th Defendant: Marble Plus Pty Ltd
Jurisdiction
Australia
Judgment Date
04 December 2015
Procedural Posture
Notices of Motion / Application for Directions and Declaratory Relief, Post Trial Enforcement Stage
Outcome
Notices of motion dismissed.
Legal Topics
Development Approval, Lease Enforcement, Landlord Consent, Car Parking Rights, Regulatory Approval Undertaking
Equity Landlord and Tenant Development Approval Lease Enforcement Landlord Consent Car Parking Rights Regulatory Approval Undertaking

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Parties

Construction Technologies Australia Pty Ltd

Plaintiff

Edward Doueihi

1st Defendant

Katrina Scott

2nd Defendant

Maria Vatselias

3rd Defendant

Nicole Hogan

4th Defendant

Marble Plus Pty Ltd

5th Defendant

Procedural Posture

Notices of Motion / Application for Directions and Declaratory Relief, Post Trial Enforcement Stage

Legal Issues

  1. 1 Whether the tenant (CTA) was required to lodge an appeal from a deemed refusal of its application for development approval to comply with its undertaking to the court
  2. 2 Whether landlords (defendants) should be restrained from objecting to/otherwise hindering the tenant's application for development approval
  3. 3 Whether the landlords' objections to the council application are inconsistent with the court's earlier orders or undertakings

Ratio Decidendi

CTA was not in breach of its undertaking to do all things necessary to obtain regulatory approvals by not lodging an appeal to the Land and Environment Court from the deemed refusal; it was reasonable to await council's decision while the application was still under active consideration. The orders only required the defendants to consent to applications, not to refrain from objecting to them, and did not entitle CTA to additional car parking rights not included in the lease.

Court Disposition

Notices of motion dismissed.

Orders

  • Balance of the defendants' notice of motion filed 3 September 2015 dismissed.
  • Relief sought in MFI-1 (application to compel appeal to the Land and Environment Court) refused.