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Construction Technologies Australia Pty Ltd v Doueihi (No 5)

Construction Technologies Australia Pty Ltd v Doueihi (No 5)

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Case Copied 9 March 2018 82 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Construction Technologies Australia Pty Ltd v Doueihi (No 5) [2018] NSWSC 294
Hearing dates: 31 January, 5 February 2018
Decision date: 09 March 2018
Jurisdiction: Equity
Before: Kunc J
Decision:
Plaintiff entitled to relief; parties to bring in orders

Catchwords:
EQUITY — Equitable remedies — Specific performance — Court’s jurisdiction to supervise performance of lease entered into pursuant to orders for specific performance

ESTOPPEL — Anshun estoppel — Issue estoppel — Decisions to which applicable — Second motion in connection with orders made to give effect to equitable estoppel
LANDLORD AND TENANT — Covenants — Implied covenants — Whether landlord required to consent to lodgement of development application by tenant to extend hours of operation — Whether consent unreasonably withheld
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56–60
Environmental Planning and Assessment Act 1979 (NSW) s 79C
Cases Cited: Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104
Bajramovic v Calubaquib [2015] NSWCA 139
Blair v Curran (1932) 62 CLR 464
C G Maloney Pty Ltd v Noon [2011] NSWCA 397
CF & SP Pty Ltd v FAI General Insurance Co Ltd (Supreme Court (NSW), Bryson J, 17 December 1998, unrep)
Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33
Colvin v Bowen (1958) 75 WN (NSW) 262
Conference & Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118
Construction Technologies Australia Pty Ltd v Doueihi [2014] NSWSC 1717; (2014) 17 BPR 33,457
Construction Technologies Australia Pty Ltd v Doueihi (No 4) [2017] NSWSC 684
Dogrow Pty Ltd v Teakdale Pty Ltd [2013] NSWSC 1380
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 343 ALR 58
Ekes v Commonwealth Bank of Australia [2014] NSWCA 336; (2014) 313 ALR 665
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
El-Saeidy v Land and Housing Corporation (NSW) [2014] NSWCA 172
Fulham Partners LLC v National Australia Bank Ltd [2013] NSWCA 296; (2013) 17 BPR 32,709
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] 1 Ch 513
Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34
Maroubra Pool Café Pty Ltd v Fedele [2017] NSWSC 1722
Pimms Ltd v Tallow Chandlers Company [1964] 2 QB 547
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Precision Pest Control Pty Ltd v Ligon 158 Pty Ltd [2004] NSWSC 1163; (2004) 12 BPR 22,681
Riltang Pty Ltd v L Pty Ltd [2004] NSWSC 977; (2004) 12 BPR 22,347
Ryding v Miles [2012] NSWSC 153
Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Tamsco v Franklins Ltd [2001] NSWSC 1205; (2001) 10 BPR 19,077
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507

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.

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Details

Case: [2018] NSWSC 294
Decision Date: 09 March 2018

CaseChat Overview and Summary

The parties to the case are Construction Technologies Australia Pty Ltd, the plaintiff, and Doueihi, the defendant. The dispute concerns the specific performance of a lease agreement, including the landlord's obligations and the tenant's rights. The case was heard in the Federal Court of Australia. The central issue in this case was whether the court had jurisdiction to supervise the performance of a lease that was entered into as a result of orders for specific performance. Additionally, the court had to determine whether a landlord is required to consent to a tenant's application to extend the hours of operation, and whether the landlord's consent can be unreasonably withheld.

The court found that it had the jurisdiction to supervise the performance of the lease, as this was necessary to ensure that the equitable remedies ordered were carried out effectively. The court also held that the landlord was not required to consent to the tenant's application to extend the hours of operation, as this was not an implied covenant in the lease agreement. Furthermore, the court found that the landlord had not unreasonably withheld consent, as the tenant had not demonstrated that the extended hours of operation would not cause undue harm or disturbance to the surrounding properties. The court's decision was based on a detailed analysis of the lease agreement, relevant case law, and the specific circumstances of the case.

In summary, the court found that it had jurisdiction to supervise the performance of the lease, and that the landlord was not required to consent to the tenant's application to extend the hours of operation. The court's decision was based on a careful analysis of the legal principles and the specific facts of the case. The final orders of the court will be made in accordance with the decision reached in the case.

Orders