GARMAN NOMINEES PTY LTD and SCOPE PROPERTY GROUP PTY LTD

In the case of Garman Nominees Pty Ltd and Scope Property Group Pty Ltd, the dispute arose from a retail shop lease agreement and related to a strata titles scheme dispute concerning the historical use of common property. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether a disclosure statement was required under the lease agreement when the lease was assigned. Additionally, the court had to determine whether a default notice issued for failure to repair was valid and if the historical use of common property by the lot owner constituted an exclusive use by-law or a lease or licence of common property.

The court found that a disclosure statement was indeed required when the lease was assigned, as the exception to such a requirement did not apply in this instance. The court examined the notice of default issued for the failure to repair and concluded that it was issued on proper grounds. Regarding the strata titles scheme dispute, the court held that the historical use of common property by the lot owner did not constitute an exclusive use by-law. Instead, it found that the lot owner had a licence to use the common property for the historical use. The court further ruled that the removal of structures from the common property did not infringe upon the lot owner's rights under the licence.

The final orders of the court mandated that a disclosure statement be provided upon the assignment of the lease. The default notice for failure to repair was upheld as valid, and the lot owner was not entitled to an exclusive use by-law. The court also directed that the removal of structures from the common property did not constitute a breach of the lot owner's rights under the licence.