Chauhan v Jaynrees Services Pty Ltd - [2008] NSWSC 969

CITATION: Chauhan v Jaynrees Services Pty Ltd [2008] NSWSC 969

HEARING DATE(S): 2-4 September 2008

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 4 September 2008

DECISION: Defendant entitled to have plaintiffs co-operate to amend By-Law 41.

CATCHWORDS: CONTRACTS [129]- Repudiation- Whether acts of liensee amount to repudiation of licence to occupy common property of strata units- Held "No". REAL PROPERTY [450]- Strata title- By-law giving exclusive use of designated common property to owner of lot 3- Lot 3 licensing same to owner of lot 4- Nature of licence- Lot 3 promising to assist in amending by-law- Scope of obligations

LEGISLATION CITED: Strata Schemes (Freehold Development) Act 1973, ss 20, 21
Strata Schemes Management Act 1996, s 52

CASES CITED: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 82 ALJR 345
Lewis & Allenby (1909) Ltd v Pegge [1914] 1 Ch 782
North Shore Gas Company Ltd v Commissioner of Main Roads (1967) 120 CLR 118
North Wind Pty Ltd v Proprietors - Strata Plan 3143 [1981] 2 NSWLR 809
Owners - Strata Plan 43551 v Walter Construction Group Limited (2004) 62 NSWLR 169
Provident Capital Ltd v Zone Development Pty Ltd (2001) 10 BPR 19,133
Ross T Smyth & Co Ltd v T D Bailey Son & Co [1940] 3 All ER 60
Shevill v Builders Licensing Board (1982) 149 CLR 620
Young v Owners - Strata Plan No 3529 (2001) 54 NSWLR 60

PARTIES: Raman Chauhan and Daxa Chauhan (Plaintiffs/Cross-Defendants)
Jaynrees Services Pty Limited (Defendant/Cross-Claimant)

FILE NUMBER(S): SC 2067/08

COUNSEL: C R de Robillard (Plaintiffs/Cross-Defendants)
S Reuben (Defendant/Cross-Claimant)

SOLICITORS: McCooe Raves & Poole (Plaintiffs/Cross-Defendants)
Pitcher Walton (Defendant/Cross-Claimant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 4 September 2008 [revised 12 September 2008]

2067/08 – CHAUHAN v JAYNREES SERVICES PTY LTD

JUDGMENT

1 HIS HONOUR: This is a dispute between the proprietors of two strata lots of a 27 storey building on the outskirts of the city of Sydney once known as Caltex House situated at 187 Kent Street, Sydney. The plaintiffs are the proprietors of lot 3 in the relevant strata plan. The defendant is the registered proprietor of lot 4. The respective premises are on the ground floor of the relevant building. By by-law 41 of the relevant strata plan, lot 3 has the benefit of exclusive use rights of an area of common property being a balcony area adjacent to Kent Street on the same level as lot 3. The area has been constantly referred to in the evidence as "exclusive use area (b)" and I will continue to refer to it as such.

2 The defendant originally had purchased lots 2, 3 and 4 in the strata plan, it would appear as an investment. By contract bearing date 3 February 2003 which was completed on 14 April 2003, the defendant transferred lot 3 to the plaintiffs. On the date of completion, 14 April 2003, the parties entered into a licence agreement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chauhan v Jaynrees Services Pty Ltd

Details

AGLC: Chauhan v Jaynrees Services Pty Ltd [2008] NSWSC 969
Case: [2008] NSWSC 969
Decision Date: 4 September 2008

CaseChat Overview and Summary

In the matter of Chauhan v Jaynrees Services Pty Ltd, the dispute involved the interpretation of a strata by-law and a licence agreement between the parties, which granted the owner of Lot 4 the exclusive use of designated common property. The case was heard by the New South Wales Supreme Court, which was tasked with determining the nature of the licence agreement and the obligations undertaken by the parties. The plaintiff, Chauhan, claimed that the defendant, Jaynrees Services Pty Ltd, had repudiated the licence agreement by taking certain actions, including the removal of property from the common area. The defendant argued that its actions did not amount to a repudiation of the licence agreement.

The legal issues before the court were whether the defendant's actions constituted a repudiation of the licence agreement and, if not, the scope of the defendant's obligations under the agreement. The court considered the nature of the licence agreement, which was granted by the owner of Lot 3, who had the exclusive use of designated common property, to the owner of Lot 4. The court also examined the terms of the agreement and whether the defendant had breached any of its obligations. The court found that the defendant's actions did not amount to a repudiation of the licence agreement and that the defendant's obligations were limited to those set out in the agreement.

The court held that the defendant's actions did not constitute a repudiation of the licence agreement. The court found that the licence agreement was a personal licence that did not confer any proprietary rights on the defendant. The court also found that the defendant's promise to assist in amending the by-law was a separate obligation that did not form part of the licence agreement. The court held that the defendant's obligations under the licence agreement were limited to those set out in the agreement, which did not include a duty to assist in amending the by-law. The court further found that the defendant had not breached any of its obligations under the licence agreement.

The court ordered that the defendant was not in breach of the licence agreement and that it was not liable to the plaintiff for any damages. The court also ordered that the defendant was entitled to remove its property from the common area and that the plaintiff was not entitled to any injunctive relief. The court's decision provides clarity on the nature of licence agreements in strata titles and the obligations of parties under such agreements.

Orders