Heriot Properties (Australia) Pty Ltd v Ezymart Leasing Pty Ltd [2022] NSWCATCD 171

Heriot Properties (Australia) Pty Ltd v Ezymart Leasing Pty Ltd [2022] NSWCATCD 171

The respondent installed exhaust vents in a gyprock wall forming common property without approval, causing damage and breaching the lease, by-law 5 and section 135 of the Strata Schemes Management Act 2015. Although clauses 5.8 and 7.2 did not permit access merely to comply with the Tribunal order, clause 5.8...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
23 August 2022
Procedural Posture
Retail Tenancy Claim / Principal Judgment After Hearing
Outcome
Application substantially allowed; access and non-interference orders made, and damages of $40,919.61 awarded to the applicant.
Legal Topics
['unauthorised Work by Lessee' 'damage to Common Property' 'lessor Access to Premises' 'compliance With Tribunal Order' 'recovery of Legal Costs as Damages' 'mitigation of Loss']
['retail Leases' 'strata Schemes' 'contract' 'damages'] ['unauthorised Work by Lessee' 'damage to Common Property' 'lessor Access to Premises' 'compliance With Tribunal Order' 'recovery of Legal Costs as Damages' 'mitigation of Loss']

Source-derived case record

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Procedural Posture

Retail Tenancy Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether clauses 5.8 and 7.2 of the lease permitted the applicant to access the premises to comply with the Tribunal order made in the 2020 proceedings.' 'Whether the lease otherwise permitted the applicant to access the premises to remove the unauthorised exhaust vents and restore the wall.' 'Whether orders should be made under section 72(1)(c) of the Retail Leases Act 1994 requiring access and non-interference.' 'Whether the applicant was entitled to damages, including legal costs incurred in defending the 2019 and 2020 proceedings.']

Ratio Decidendi

The respondent installed exhaust vents in a gyprock wall forming common property without approval, causing damage and breaching the lease, by-law 5 and section 135 of the Strata Schemes Management Act 2015. Although clauses 5.8 and 7.2 did not permit access merely to comply with the Tribunal order, clause 5.8 permitted the applicant to access the premises to carry out repairs by disconnecting the vents and restoring the wall. Section 72(1)(c)(iv) of the Retail Leases Act 1994 empowered orders requiring the respondent to give access and refrain from interference. The applicant was entitled to damages for losses caused by the breaches, including the penalty, costs incurred attempting to...

Court Disposition

Application substantially allowed; access and non-interference orders made, and damages of $40,919.61 awarded to the applicant.

Orders

  • ["Pursuant to section 72(1)(c)(iv) of the Retail Leases Act 1994, the respondent is ordered to give the applicant, its servants or agents, access to the premises within seven (7) days for the purpose of disconnecting the respondent's airconditioning and refrigeration from exhaust vents and any associated materials...