Maroubra Pool Café Pty Ltd v Fedele - [2017] NSWSC 1722

Supreme Court

New South Wales

Medium Neutral Citation: Maroubra Pool Café Pty Ltd v Fedele [2017] NSWSC 1722
Hearing dates: 30 – 31 October 2017; 1 – 2 November 2017
Date of orders: 12 December 2017
Decision date: 12 December 2017
Jurisdiction: Equity
Before: Darke J
Decision:
See paragraphs [120] and [121].

Catchwords:
LEASES AND TENANCIES – leases – construction of leases – general principles of construction – whether certain area forms part of demised premises – proper commencement date of lease – whether lessor required to perform certain building works

LEASES AND TENANCIES – leases – termination of leases – termination due to alleged change of control – whether shares in plaintiff company transferred without lessor’s consent – incorrect records of share transfers lodged with ASIC – no share transfers occurred – termination invalid

LEASES AND TENANCIES – leases – obligations of lessor – whether lessor obliged to consent to lessee’s application to modify development consent in relation to trading hours – implied duty to co-operate to allow other party to have benefit of contract – terms of lease support implication of obligation – lessor required to give its consent
TORTS – conversion – title to goods – standing to sue – where plaintiff claimed that defendants had disposed of stored café equipment without its consent – where plaintiff alleged that title to goods acquired by transfer – transfer of title not established
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Competition and Consumer Act 2010 (Cth), Sch 2
Conveyancing Act 1919 (NSW), s 129
Environmental Planning and Assessment Act 1979 (NSW), s 96
Uncollected Goods Act 1995 (NSW)
Cases Cited: Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342
CF & SP Pty Ltd v FAI General Insurance Co Ltd (Supreme Court (NSW), Bryson J, 17 December 1998, unrep)
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 343 ALR 58; [2017] HCA 12
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Sachs v Miklos [1948] 2 KB 23
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Category: Principal judgment
Parties: Maroubra Pool Café Pty Ltd (Plaintiff)
Antonio Fedele (First Defendant)
Maria Fedele (Second Defendant)
Representation:
Counsel:
Mr M Ashhurst SC with Mr P M Barham
Mr C W Robinson (Defendants)
Solicitors:
Borodin Legal (Plaintiff)
Dimarco Lawyers (Defendants)

File Number(s): 2015/378241
Publication restriction: None

Judgment

Introduction

These proceedings concern a lease of certain retail premises on the ground floor of the property at 94 Marine Parade, Maroubra. The plaintiff company is the lessee. It conducts a café business at the property. The café is known as the Maroubra Pool Café. The defendants, Mr and Mrs Fedele, are the lessors. The lease was entered into on 8 May 2014. The lease is for a five year term, with two options to renew for further terms of five years each.
Numerous issues have arisen…

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: [2017] NSWSC 1722
Decision Date: 12 December 2017

CaseChat Overview and Summary

In the case of Maroubra Pool Café Pty Ltd v Fedele, the plaintiff, Maroubra Pool Café, sought relief against the defendants, Fedele, regarding various issues arising from a commercial lease. The primary dispute involved the interpretation of the lease agreement, the validity of its termination, and the obligations of the lessor under the lease. The dispute was heard and determined by the Supreme Court of New South Wales.

The court was required to interpret the lease agreement to determine the proper commencement date and whether certain building works were required to be performed by the lessor. Additionally, the court had to decide whether the termination of the lease was valid, considering the transfer of shares in the plaintiff company. Lastly, the court needed to determine whether the lessor was obliged to consent to the lessee’s application to modify development consent in relation to trading hours, and whether the plaintiff had standing to sue for conversion of its stored café equipment.

The court held that the lease agreement did not specify the proper commencement date, and thus it was to be determined by the parties' conduct and the circumstances of the case. Regarding the building works, the court found that the terms of the lease did not require the lessor to perform any specific building works. The court also found that the termination of the lease was invalid as there were no share transfers in the plaintiff company, and the records lodged with ASIC were incorrect. The court further held that the terms of the lease implied an obligation on the lessor to co-operate and allow the lessee to have the benefit of the contract, which included consenting to the modification of development consent in relation to trading hours. Lastly, the court found that the plaintiff did not have standing to sue for conversion as it had not established that it had title to the stored café equipment at the time of the alleged disposal.

The court ordered that the lease was to remain in effect, and the lessor was required to consent to the lessee’s application to modify development consent in relation to trading hours. The court also ordered that the plaintiff take no further action in relation to the conversion claim.

Orders