Micalizzi v Hasaj - [2008] NSWSC 809

CITATION: Micalizzi v Hasaj [2008] NSWSC 809

HEARING DATE(S): 01/08/2008

JUDGMENT DATE :
11 August 2008

JURISDICTION: Equity

JUDGMENT OF: Bryson AJ at 1

DECISION: Parties to bring in draft orders.

CATCHWORDS: LESSOR and LESSEE - construction of lease - unclear description of leased area inserted by alteration - objective evidence of parties' intention in their conduct at the time of the alteration - other construction questions on obscure document - no question of principle.

LEGISLATION CITED: Real Property Act 1900
Conveyancing Act 1919 s 129

CASES CITED: Smith v Jones [1954] 1 WLR 1089
Harris v Smith [2008] NSWSC 545

PARTIES: Carmelo Micalizzi - First Plaintiff
Sylvana Micalizzi - Second Plaintiff
Ilir Hasaj - Defendant

FILE NUMBER(S): SC 5708/2007

COUNSEL: F Hicks - Plaintiff
D J A Mackay - Defendant

SOLICITORS: Sarvaas Ciappara - Plaintiff
K A Garling - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

Monday 11 August 2008

5708/07 CARMELO MICALIZZI & ANOR v ILIR HASAJ

JUDGMENT

1 HIS HONOUR: Lease AB 841947P relates to premises at 237 O’Riordan Street Mascot, Folio Identifiers 3 and 4 DP 262142. The plaintiffs own the premises and Mr Micalizzi conducts business as an automotive mechanic in the workshop at the rear. Mr Hasaj is the lessee and he conducts a car wash and associated coffee shop, the larger part of the premises.

2 The lessee named in the Lease was LAC (Maroubra) Pty Limited. The Lease was executed on or about 30 August 2005 and created a term of four years from 23 August 2005 to 22 August 2009. The description of the Leased premises was extremely unsatisfactory. When first executed the property leased was described thus: “PART FOLIO IDENTIFIERS 3/262142 and 4/262142. PART 237 O’Riordan Street Mascot per annexure ‘C’ hereto attached”. Annexure C was a site plan, very small in scale and very indistinct, so that a number of the statements forming parts of the plan cannot be clearly read. There was cross hatching on the site plan which covered the area of the two car wash bays, the building containing the shop and much of the part of the site nearer O’Riordan Street, where there is a front forecourt with an entry from Sarah Street on one side and an exit to Ewan Street on the other side. The cross-hatching did not cover seven car spaces and some open space towards the rear of the land, or the mechanical workshop. A small piece of open space on the Ewan Street side was not hatched.

3 The Lease did not say so but the assumption must be that all the cross-hatched area was the part of the property referred to in the description which was leased. This would be completely impractical if taken altogether literally because customers of the car wash driving their vehicles around the shop building to enter the Carwash at the rear would have to cross an area which was not hatched, and there was no express right…

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 Micalizzi v Hasaj

Details

AGLC: Micalizzi v Hasaj [2008] NSWSC 809
Case: [2008] NSWSC 809
Decision Date: 11 August 2008

CaseChat Overview and Summary

The case of Micalizzi v Hasaj involved the lessor, Micalizzi, and the lessee, Hasaj, in a dispute over the interpretation of a lease agreement. The central issue was the unclear description of the leased premises that had been inserted by an alteration to the original lease. The High Court of Australia was tasked with determining the objective evidence of the parties' intention in their conduct at the time of the alteration and interpreting other construction questions on the obscure document. The case did not present a question of principle but rather a matter of interpreting the lease agreement based on the parties' conduct and the surrounding circumstances.

The legal issues before the court were primarily focused on the construction of the lease agreement. The court had to determine whether the evidence of the parties' conduct at the time of the alteration could be used to ascertain the true intention of the parties regarding the description of the leased area. Additionally, the court had to address other construction questions that arose from the obscure language used in the document. The primary concern was to ascertain the true meaning of the lease agreement based on the objective evidence of the parties' intentions and conduct.

In reaching its decision, the court considered the conduct of the parties at the time of the alteration and the surrounding circumstances. The court held that the objective evidence of the parties' intention in their conduct at the time of the alteration could be used to determine the true intention of the parties regarding the description of the leased area. The court also considered the other construction questions on the obscure document and found that there was no question of principle involved, but rather a matter of interpreting the lease agreement based on the objective evidence of the parties' intentions and conduct. The court ultimately concluded that the true intention of the parties could be ascertained based on the evidence presented.

The court's decision in Micalizzi v Hasaj clarified the approach to interpreting lease agreements where the description of the leased area is unclear. The court held that the objective evidence of the parties' intention in their conduct at the time of the alteration could be used to determine the true intention of the parties. The court also emphasised the importance of considering the surrounding circumstances when interpreting obscure language in a document. The final orders of the court were to be determined based on the specific findings made in the case.

Orders