Micalizzi v Hasaj [2008] NSWSC 809

Micalizzi v Hasaj [2008] NSWSC 809

The leased premises are those hatched on the plan originally annexed to the lease, with qualifications that the office/store is excluded, and an implied reservation exists for the lessor's access to and use of the toilets and to the workshop, as supported by representations made prior to transfer of the lease and the circumstances of occupation. Rectification is not available against the registered proprietor Hasaj owing to the Torrens title protection.

Parties
First Plaintiff: Carmelo Micalizzi; Second Plaintiff: Sylvana Micalizzi; Defendant: Ilir Hasaj
Jurisdiction
Australia
Judgment Date
11 August 2008
Procedural Posture
Equity / Judgment After Hearing
Outcome
Parties to bring in draft orders.
Legal Topics
Construction of Lease, Rectification, Implied Terms, Registered Lease, Torrens System, Outgoings Apportionment
Property Law Equity Landlord and Tenant Construction of Lease Rectification Implied Terms Registered Lease Torrens System +1 more

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Parties

Carmelo Micalizzi

First Plaintiff

Sylvana Micalizzi

Second Plaintiff

Ilir Hasaj

Defendant

Procedural Posture

Equity / Judgment After Hearing

Legal Issues

  1. 1 What is the correct construction of the description of the leased premises?
  2. 2 Is there an implied reservation of rights (toilets, access, office)?
  3. 3 Are the plaintiffs entitled to rectification of the lease?

Ratio Decidendi

The leased premises are those hatched on the plan originally annexed to the lease, with qualifications that the office/store is excluded, and an implied reservation exists for the lessor's access to and use of the toilets and to the workshop, as supported by representations made prior to transfer of the lease and the circumstances of occupation. Rectification is not available against the registered proprietor Hasaj owing to the Torrens title protection.

Court Disposition

Parties to bring in draft orders.