Malabar Headlands Pty Ltd v Ozoris Investments Group Pty Ltd [2019] NSWCATCD 24

Malabar Headlands Pty Ltd v Ozoris Investments Group Pty Ltd [2019] NSWCATCD 24

The rear external wall and screws and hooks affixed to it before and when the respondent entered the lease were part of the demise. However, the yard was common property and clause 11.3.2, properly construed with the lease as a whole, permitted limited temporary use such as access and did not make storing mops and buckets in the yard to dry a reasonable use. Disposal of wastewater from the food business into the stormwater drain would breach the lease because the lease required proper waste disposal and prohibited illegal activity, and Council correspondence identified such disposal as a water pollution offence. The costs claimed were not awarded because most claimed legal costs related...

Jurisdiction
Australia
Judgment Date
06 March 2019
Procedural Posture
Retail Tenancy Claim Under the Retail Leases Act 1994 / Principal Judgment After Hearing
Outcome
Declarations made; application otherwise dismissed, including the claimed costs order.
Legal Topics
['demised Premises' 'common Areas' 'reasonable Use of Common Facilities' 'wastewater Disposal' 'declaratory Relief' 'costs']
['retail Leases' 'property Law' 'consumer and Commercial Tenancy'] ['demised Premises' 'common Areas' 'reasonable Use of Common Facilities' 'wastewater Disposal' 'declaratory Relief' 'costs']

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Procedural Posture

Retail Tenancy Claim Under the Retail Leases Act 1994 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the rear external wall of the premises, and screws and hooks affixed to it, formed part of the premises demised to the respondent.' "Whether storing the respondent's mops and buckets in the yard to dry was a reasonable use within clause 11.3.2 of the lease." 'Whether disposal of wastewater by the respondent in the stormwater drain located in the yard would breach the lease.' 'Whether declaratory relief should be granted on issues no longer in dispute.' "Whether the respondent should pay the applicant's claimed legal costs."]

Ratio Decidendi

The rear external wall and screws and hooks affixed to it before and when the respondent entered the lease were part of the demise. However, the yard was common property and clause 11.3.2, properly construed with the lease as a whole, permitted limited temporary use such as access and did not make storing mops and buckets in the yard to dry a reasonable use. Disposal of wastewater from the food business into the stormwater drain would breach the lease because the lease required proper waste disposal and prohibited illegal activity, and Council correspondence identified such disposal as a water pollution offence. The costs claimed were not awarded because most claimed legal costs related...

Court Disposition

Declarations made; application otherwise dismissed, including the claimed costs order.

Orders

  • ['A declaration that the rear external wall of the premises and the screws and hooks affixed to it prior to and at the time the respondent entered into the lease are part of the demise to the respondent.' "A declaration that the storing of the respondent's mops and buckets in the yard to dry is not a reasonable use...