Charbel CJ Pty Limited & Anor v Owners Corporation Strata Plan 69470 [2005] NSWCA 241

Charbel CJ Pty Limited & Anor v Owners Corporation Strata Plan 69470 [2005] NSWCA 241

The second sentence of cl 19.1(a) of the Strata Management Statement imposed the fast food outlet prohibition on owners or proprietors of the Retail Shops only, not on the appellants as lessees. The drafting elsewhere expressly distinguished owners, occupiers and lessees, and Pt 1 of the Statement did not make...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
10 August 2005
Procedural Posture
Appeal Concerning Strata Plans, Strata Management Statement Obligations and Injunctive Relief / Appeal From Orders Made by Burchett a J on 17 March 2005
Outcome
Appeal allowed in part; injunctions based on the fast food outlet prohibition set aside and substituted injunctions granted concerning smells, fumes or gases; costs orders varied.
Legal Topics
['construction of Strata Management Statement' 'use of Retail Lots as Fast Food Outlets' 'obligations of Lessees and Proprietors Under Strata Management Statement' 'injunctive Relief' 'leave to Raise New Point on Appeal']
['property' 'strata Schemes' 'civil Procedure'] ['construction of Strata Management Statement' 'use of Retail Lots as Fast Food Outlets' 'obligations of Lessees and Proprietors Under Strata Management Statement' 'injunctive Relief' 'leave to Raise New Point on Appeal']

Source-derived case record

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Procedural Posture

Appeal Concerning Strata Plans, Strata Management Statement Obligations and Injunctive Relief / Appeal From Orders Made by Burchett a J on 17 March 2005

Legal Issues

  1. 1 ['Whether the expression "The owners of the Retail Shops" in cl 19.1(a) of the Strata Management Statement included lessees of the retail shops.' 'Whether the appellants, as lessees, were bound by and in breach of the prohibition on use of the Retail Shops as a fast food outlet.' 'Whether the respondent should be granted leave to raise on appeal an alleged independent breach of the covenant in s 28W(2)(b) of the Strata Schemes (Freehold Development) Act 1973.' "What injunctive relief should be granted in light of the appellants' accepted breach of cl 19.2(a) concerning smells, fumes or gases."]

Ratio Decidendi

The second sentence of cl 19.1(a) of the Strata Management Statement imposed the fast food outlet prohibition on owners or proprietors of the Retail Shops only, not on the appellants as lessees. The drafting elsewhere expressly distinguished owners, occupiers and lessees, and Pt 1 of the Statement did not make lessees bound by obligations expressed only to bind proprietors. The respondent was not permitted to raise an independent s 28W(2)(b) breach for the first time on appeal because evidence could have been led below that might have met the point. However, because the appellants did not challenge the finding that they breached cl 19.2(a) by causing unreasonable smells, fumes or gases,...

Court Disposition

Appeal allowed in part; injunctions based on the fast food outlet prohibition set aside and substituted injunctions granted concerning smells, fumes or gases; costs orders varied.

Orders

  • ['Appeal allowed.' 'Set aside Orders 1 and 2 made by Burchett A-J on 17 March 2005.' 'The first appellant by itself its servants and agents be restrained from causing or permitting smells, fumes or gases to be discharged from premises known as Lot 1 in commercial strata plan 69948 which unreasonably interfere with...