Helou & ors v Bong Bong Pty Limited & anor trading as Regsional Retail Properties (No 2) [2006] NSWADT 162

Helou & ors v Bong Bong Pty Limited & anor trading as Regsional Retail Properties (No 2) [2006] NSWADT 162

The lease to be executed had to use the plan annexed to the letter of 22 February 2005 because the earlier jurisdiction decision declared that the five-year lease commencing on 8 March 2005 related to premises delineated in that plan and did not allow for changes. Council access restrictions would bind the parties independently, and inserting the Respondents' 'pedestrian access' notation could improperly make the restriction part of the parties' agreement, contrary to the earlier declaration.

Jurisdiction
Australia
Judgment Date
31 May 2006
Procedural Posture
Claim for Declaration of Rights, Obligations and Liabilities Under a Lease, Damages and Unconscionability / Preliminary Matter; Applications for Orders Implementing Order 1 of the Decision on Jurisdiction
Outcome
Applicants' position accepted on the preliminary matter; the Respondents were ordered to provide a lease using the plan annexed to the letter of 22 February 2005, and the parties were ordered to execute it.
Legal Topics
['lease Documentation' 'retail Shop Lease' 'premises Delineation by Plan' 'council Access Restrictions' 'unconscionable Conduct']
['retail Leases' 'property Law' 'administrative Tribunal Procedure'] ['lease Documentation' 'retail Shop Lease' 'premises Delineation by Plan' 'council Access Restrictions' 'unconscionable Conduct']

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Procedural Posture

Claim for Declaration of Rights, Obligations and Liabilities Under a Lease, Damages and Unconscionability / Preliminary Matter; Applications for Orders Implementing Order 1 of the Decision on Jurisdiction

Legal Issues

  1. 1 ["Whether the lease to be executed by the parties should annex the plan attached to the letter of 22 February 2005 or the Respondents' revised plan containing a notation for pedestrian access." 'Whether Council determinations about loading, unloading and delivery vehicle access required alteration of the lease plan.' 'Whether Order 1 of Helou & Ors v Bong Bong Pty Limited & Anor t/a Regional Retail Properties [2006] NSWADT 128 allowed changes to the plan defining the leased premises.']

Ratio Decidendi

The lease to be executed had to use the plan annexed to the letter of 22 February 2005 because the earlier jurisdiction decision declared that the five-year lease commencing on 8 March 2005 related to premises delineated in that plan and did not allow for changes. Council access restrictions would bind the parties independently, and inserting the Respondents' 'pedestrian access' notation could improperly make the restriction part of the parties' agreement, contrary to the earlier declaration.

Court Disposition

Applicants' position accepted on the preliminary matter; the Respondents were ordered to provide a lease using the plan annexed to the letter of 22 February 2005, and the parties were ordered to execute it.

Orders

  • ['As soon as reasonably practicable, the Respondents are to provide to the Appellants for execution a lease in terms of the draft lease handed up at the directions hearing on 15 May 2006, but with the plan that was annexed to the letter of 22 February 2005 from the respondents to the Appellants substituted for the...