Global Hospitality Acquisitions Pty Ltd v Owners Corporation SP31748 [2009] NSWADT 130

Global Hospitality Acquisitions Pty Ltd v Owners Corporation SP31748 [2009] NSWADT 130

The kitchen and the enclosed car park storage area were premises used wholly for the purposes of the Bungabar restaurant business and as integral parts of that business, not merely ancillary areas. The parties' arrangements and subsequent conduct showed that the kitchen was to be used as Bungabar's kitchen and that the car park storage area was to be used for storage, despite the wording of the car parking licence. Section 16 of the Retail Leases Act 1994 therefore applied to extend the relevant retail shop lease terms. The Respondents, through Mr Roussos, had known of and approved the relevant uses, works, pipes and signage until 19 August 2008, giving rise to estoppel or licences...

Jurisdiction
Australia
Judgment Date
02 June 2009
Procedural Posture
Combined Retail Tenancy Claim and Unconscionable Conduct Claim / Original Decision After Hearing; Short Minutes of Orders Directed
Outcome
Applicant substantially succeeded on the retail shop lease, extension, restraint and estoppel issues; unconscionable conduct was not made out; parties were directed to bring in short minutes of orders.
Legal Topics
['retail Shop Lease' 'restaurant Premises' 'licence of Car Parking/storage Area' 'minimum 5 Year Term' 'estoppel' 'unconscionable Conduct' 'common Property']
['retail Leases' 'property Law' 'equity'] ['retail Shop Lease' 'restaurant Premises' 'licence of Car Parking/storage Area' 'minimum 5 Year Term' 'estoppel' 'unconscionable Conduct' 'common Property']

Case Brief

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Procedural Posture

Combined Retail Tenancy Claim and Unconscionable Conduct Claim / Original Decision After Hearing; Short Minutes of Orders Directed

Legal Issues

  1. 1 ['Whether the agreement for use of the kitchen area was a retail shop lease within the meaning of the Retail Leases Act 1994.' 'Whether the car parking licence agreement for the car park storage area was a retail shop lease within the meaning of the Retail Leases Act 1994.' 'Whether the term of any retail shop lease was extended by s 16 of the Retail Leases Act 1994.' 'Whether the Second Respondent was estopped from denying that the permitted use of the car park storage area included storage for the Bungabar restaurant and from requiring removal of the cool room.' "Whether the Respondents' conduct concerning the notices issued on 19 August 2008 was unconscionable conduct under s62B of the Retail Leases Act 1994." 'Whether the Applicant had rights or licences to maintain pipes, signage and use of common property areas associated with Bungabar.']

Ratio Decidendi

The kitchen and the enclosed car park storage area were premises used wholly for the purposes of the Bungabar restaurant business and as integral parts of that business, not merely ancillary areas. The parties' arrangements and subsequent conduct showed that the kitchen was to be used as Bungabar's kitchen and that the car park storage area was to be used for storage, despite the wording of the car parking licence. Section 16 of the Retail Leases Act 1994 therefore applied to extend the relevant retail shop lease terms. The Respondents, through Mr Roussos, had known of and approved the relevant uses, works, pipes and signage until 19 August 2008, giving rise to estoppel or licences...

Court Disposition

Applicant substantially succeeded on the retail shop lease, extension, restraint and estoppel issues; unconscionable conduct was not made out; parties were directed to bring in short minutes of orders.

Orders

  • ['The parties were directed, within 10 days after publication of the Reasons, to file and serve Short Minutes of Orders to give effect to the conclusions and reasons.' 'The Short Minutes were to be agreed or settled by the Tribunal, with orders to be made at a directions hearing appointed by the Registry.']