Belle Vue Property Pty Limited v Mercato e Cucina at Barangaroo Pty Ltd

[2017] NSWSC 498

Supreme Court

New South Wales

Medium Neutral Citation:	Belle Vue Property Pty Limited v Mercato e Cucina at Barangaroo Pty Ltd [2017] NSWSC 498
Hearing dates:	24 April 2017
Decision date:	24 April 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Leave granted to file summons in court; time for service abridged
Catchwords:	PROCEDURE – application to abridge time for service of summons filed in court – no question of principle
Category:	Procedural and other rulings
Parties:	Belle Vue Property Pty Limited (plaintiff) Mercato e Cucina at Barangaroo Pty Ltd (defendant)
Representation:	Counsel: DM Loewenstein (plaintiff) (ex parte)   Solicitors: Arnotts Technology Lawyers (plaintiff)
File Number(s):	2017/122325

JUDGMENT

1. HER HONOUR: Belle Vue Property Pty Limited seeks leave to file in court a summons seeking a declaration that the defendant, Mercato e Cucina at Barangaroo Pty Ltd, is a trespasser on commercial premises at Barangaroo owned by Belle Vue. Mercato e Cucina was, until the events giving rise to the proceedings, a tenant of those premises.

2. The defendant company does not appear today, since the proceedings have not yet been commenced. However, the sole director of that company, who is a solicitor, is present in court. He has indicated that he does not oppose the relief sought today, which would see the proceedings returnable before the Duty Judge on 3 May 2017.

3. It can be seen from the evidence relied upon by the plaintiff that the matter has a measure of urgency about it, since for the plaintiff's part substantial outgoings are accruing in respect of the premises each month. For the defendant's part, the evidence suggests that it still conducts a restaurant business as a going concern on the premises. In short, the correspondence reveals the existence of a dispute as to the defendant's entitlement to remain in the premises in circumstances where the plaintiff contends that the lease has been lawfully terminated following a failure on the part of the defendant to comply with the conditions on which an earlier process of execution of a writ of possession was stayed or terminated by agreement.

4. I grant leave to the plaintiff to file the summons in court.

5. I note the undertaking of the plaintiff's solicitor to pay the filing fee in the registry. I make orders 1, 2 and 3 in the minute of order signed by the parties, which I will initial.

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Decision last updated: 01 May 2017