711 Hogben Pty Ltd v Tadros

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	711 Hogben Pty Ltd v Tadros [2016] NSWCA 244
Hearing dates:	1 September 2016
Decision date:	01 September 2016
Before:	Meagher JA at [1] and [21]; Leeming JA at [2]
Decision:	1. The summons seeking leave to appeal filed 1 July 2016 be dismissed.  2. The applicant pay the respondents’ costs of the summons.
Catchwords:	APPLICATION FOR LEAVE TO APPEAL – primary judge determined some but not all issues ordered for separate determination – application for leave to appeal – where parties will enjoy appeal as of right when all issues determined at first instance – whether undetermined issue should be determined by the Court of Appeal – whether sufficiently strong case of error made out – leave refused
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), Pt 28
Category:	Principal judgment
Parties:	711 Hogben Pty Ltd ACN 157 911 745 (Applicant) Anthony Tadros (First Respondent) Sharon Tadros (Second Respondent) George Tadros (Third Respondent) Dennis Bluth (Fourth Respondent)
Representation:	Counsel: CJ Bevan (Applicant) M Hadley (First, Second and Third Respondents) Submitting Appearance (Fourth Respondent)   Solicitors: One Group Legal Pty Ltd (Applicant) Harrington Maguire & O'Brien (First, Second and Third Respondents)
File Number(s):	2016/200160
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2016] NSWSC 697 Date of Decision: 01 June 2016 Before: Stevenson J File Number(s): 2015/330101

EX Tempore Judgment

1. MEAGHER JA: I will ask Leeming JA to deliver the first judgment.

2. LEEMING JA: This is an application for leave to appeal from the interlocutory, reserved decision of the primary judge given on 1 June 2016: 711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Ptd Ltd [2016] NSWSC 697. It is convenient to say something of the underlying dispute and procedural history of the litigation.

3. The applicant for leave, 711 Hogben, and two of the respondents, Mr and Ms Tadros, entered into a Deed of Agreement for Lease in respect of two levels of a strata development in Kogarah. Clause 14 of the Deed provides that proceedings may not be commenced until a dispute has first been decided by expert determination. There is a dispute between the parties. It arises because 711 Hogben undertook to use its reasonable endeavours to complete the “Landlord’s Works” by 26 May 2014. “Landlord’s Works” was defined to mean:

“[T]he building work to be carried out by the Landlord to build the Premises including shop front, walls, concrete slab ceiling and floor, external window frames and window panels, entry door and verandah door(s), waterproofing to all wet areas, electrical power board to each floor, standard gas pipe to each floor of the Premises, and hot and cold water outlet to each floor of the Premises and numbering or labelling of car spaces.”

4. The dispute between the parties was as to the Commencing Date and as to the nature of the Landlord’s obligations so far as concerns “Landlord’s Works”.

5. The…