Nguyen v Perri

[1999] NSWSC 930

CITATION:	Nguyen v. Perri & Anor. [1999] NSWSC 930 revised - 16/09/99
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	No. 5158 of 1998
HEARING DATE(S):	30 and 31 August 1999
JUDGMENT DATE:	16 September 1999
PARTIES :	Thi Mi Nguyen (Plaintiff) Filippo Perri (First Defendant) Giuseppina Perri (Second Defendant)
JUDGMENT OF:	Hodgson CJinEq at 1

COUNSEL :	Mr. C. Freeman for Plaintiff Mr. C. Harris for Defendants
SOLICITORS:	Than & Co., Bankstown (Plaintiff) Willis & Bowring, Miranda (Defendants)
CATCHWORDS:	LANDLORD AND TENANT - ANCILLARY RIGHTS
DECISION:	See page 18 of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Thursday 16th September 1999

NO. 5158 OF 1998
NGUYEN V. PERRI & ANOR.

JUDGMENT

1   The plaintiff is the lessee of a hot bread shop from the defendants Mr. and Mrs. Perri under an agreement for lease for five years from 14th October 1998, arising from the exercise of an option under an earlier lease. In these proceedings, the plaintiff seeks declarations as to her entitlement to use a passageway adjacent to the shop, a yard at the rear of the shop, and a coolroom in that yard, and also consequential relief. She also seeks relief concerning a roller-shutter door, and $3,531.39 paid in respect of garbage removal and a grease trap. There is now no issue between the parties concerning the coolroom and the roller-shutter door.

OUTLINE OF FACTS

2   I will commence with an outline of the facts which are not substantially in dispute. 3   Prior to early 1992, the defendants conducted a bakery business in the subject shop, and also owned the property on which that shop and four other shops were erected. 4   On 19th March 1992, the plaintiff entered into a lease of this shop from the defendants for one year, with an option for a further three years. It appears that she also purchased bakery machinery and equipment from the defendants for $90,000.00 or thereabouts. 5   The lease provided for a minimum annual rent of $41,600.00. The permitted use of the premises, set out in No.15 of the Lease Schedule, was "hot bread shop". Other relevant terms of the lease were cls.7(1) and 7(4)(a), 8(1) and 8(5), 12, 17, 20 and 24. These provisions were in the following terms:

7. Lessee's Percentage Outgoings
The Lessee hereby covenants with the Lessor as follows:-
(1) The Lessee shall pay to the Lessor additional rent at the rate of the percentage set out in number 12 of the Lease Schedule of the amount of all outgoings of the Property in respect of each lease year.
...

(4) The words "outgoings of the Property" include:-
(a) all assessments, charges, levies, outgoings, rates and taxes payable to any local government body or any other like authority in respect of the Property:
...

8. Use of the Premises etc.
The Lessee hereby covenants with the Lessor as follows:
(1) The Lessee shall use the premises for the use set out in number 15 of the Lease Schedule and shall not use or permit or suffer it to be used for any other purpose or activity.
...

(5) The Lessee shall be solely responsible for and shall promptly pay all charges and outgoings in respect of garbage clearance, excess water, gas, electricity, telephone and all other utilities and services used in or charged against or in respect of the premises or the Lessee during the term of this lease.
...

12. This Lease Sets out Whole Transaction
The Lessee hereby covenants with the Lessor as follows:-
(1) This document embodies the whole transaction of the leasing hereby made;

(2) All conditions representations and warranties collateral or otherwise pertaining to the leasing whether written, oral, express or implied and whether consistent with this document or not are hereby cancelled and negatived;

(3) The Lessee acknowledges that it has entered into this lease without relying on any warranty or representation made or given by or on behalf of the Lessor and after satisfying itself as to the suitability of the premises for the purpose for which the premises are lease(sic).
...

17. Common Areas
The Lessee hereby acknowledges tot the Lessor that without limiting the rights of the Lessor as owner of the Property the Common Areas shall at all times be subject to the absolute and exclusive control and management of the Lessor.
...

20. Regulation and Rules
The Lessee hereby covenants with the Lessor that if the premises form part of and are not all of the Property:-
(1) The Lessor shall have the right to make, vary, modify and enforce regulations and rules with respect to the Property including the Common Areas;

(2) The Lessee shall observe and perform all of the regulations and rules for the time being in force pursuant to paragraph (1) and

(3) A certificate signed by or on behalf of the Lessor of the regulations and rules with respect to the Property in force at the date specified therein shall be conclusive evidence of the regulations and rules in force as at that date.
...

24. Non-exclusive rights
1. The Lessor hereby grants subject to the provisions of this lease -
(1) full right and liberty for the Lessee its agents, employees, licensees and invitees to use in common with the Lessor and all persons for the time being authorised by it for the purpose of ingress and egress whilst on foot and without animals or vehicles such part of the Common Areas as the Lessor may from time to time nominate.

(2) full right and liberty for the Lessee its agents, employees and licensees (other than customers and members of the public) in common with the Lessor and all persons for the time being authorised by it to use the staff toilets (if any) for males and females within the Common Areas; and

(3) full right and liberty for the Lessee its agents, employees and licensees to use in common with the Lessor and all persons for the time being authorised by it any loading dock or loading platform of the Common Areas which is contiguous to the premises or to which there is access by an access corridor which is contiguous to the premises.

2. The Lessee hereby covenants with the Lessor that the rights granted in this clause are granted subject to the regulations and rules for the time being made pursuant to Clause 20.

6 In 1993, the parties entered into a further lease of the shop for a term of five years commencing 14th October 1993, with a five year option. This lease contained relevantly similar terms. 7 In 1994, with the permission of the lessors, the plaintiff had the glass shopfront removed and replaced with a roller-shutter door. 8 On 20th January 1997, the defendants' solicitors wrote to the plaintiff claiming that breaches of the lease had occurred, including the removal of the plate-glass shopfront without the lessors' approval, erecting a shed at the rear of the premises, and selling milk and soft drinks. Further letters from the defendants' solicitors to the plaintiff of 13th February 1997 and 23rd April 1997 asserted that these breaches were continuing. A further letter from the defendants' solicitors to the plaintiff of 29th May 1997 asserted that no response had been received to the previous letters. 9 A further letter from the defendants' solicitors to the plaintiff dated 10th November 1997 made similar complaints, and also asserted that the plaintiff had obstructed the passageway beside the shop. Another letter from the defendants' solicitors to the plaintiff of 16th February 1998 repeated these complaints, and asserted that the plaintiff had placed bins in the yard behind the shop and taken possession of the passageway for storage of sacks. 10 On 18th April 1998, the plaintiff exercised the option contained in the five year lease. 11 On 27th April 1998, a lease of adjoining shops for the period 16th March 1998 to 15th March 2002 was executed by the defendants and a Mr. Taylor and two other persons. It has been asserted by Mr. Perri that that lease included the yard behind the plaintiff's shop; but as I understand it, the submissions on behalf of the defendants concede that the yard is a common area under that lease, as well as being a common area under the plaintiff's lease. 12 On 1st May 1998, the defendants' solicitors wrote to the plaintiff's solicitors alleging that the plaintiff was in breach of the lease, and that the defendants did not agree to grant a further term. 13 By letter dated 29th June 1998 from the plaintiff's solicitors to the defendants' solicitors, it was asserted inter alia that the defendants had consented to the installation of the roller-shutter door, that a "removable container" (apparently, the shed complained about by the defendants) had been removed, and that the defendants themselves had sold milk and soft drinks. 14 On 22nd July 1998, the defendants' solicitors wrote to the plaintiff's solicitors alleging inter alia "Our client denies any conversation with your client and any agreement to remove the shopfront plate-glass and install a rollerdoor in lieu thereof". This letter repeated that the defendants were not prepared to grant a further lease. 15 On 12th August 1998, the rent for the month of August was posted to Mr. Perri at 4 Coolangatta Avenue, Cronulla, 2230, which had been the defendants' address. This letter was returned to sender. On 3rd September 1998, it was sent on by the plaintiff's solicitors to the defendants' solicitors. It appears that the defendants had moved house, and not notified the plaintiff. 16 By letter dated 7th September 1998, the plaintiff's solicitors pointed out to the defendants' solicitors that they could not rely on breaches to refuse a new lease, in circumstances where no notice under s.133E of the Conveyancing Act had been served. By a letter dated 28th September 1998, the defendants' solicitors notified that the defendants agreed to grant a further lease, claiming a rental of $26,000.00 per annum. 17 By a letter dated 1st October 1998, the plaintiff's solicitors requested determination of a market rent; and by a letter dated 5th November 1998, they enclosed a valuation of $13,000.00 per annum. 18 On 3rd December 1998, the defendants' solicitors wrote advising that the next day their clients would attend the premises and remove obstructions. The plaintiff's solicitors replied by a letter of the same day in the following terms:

We refer to your facsimile of the 3rd instant and are instructed to advise as follows:

1. Our client has long ceased from using the yard for storage;

2. Flour has been stored on part of the passage since your clients first commenced the business at the premises. Such practice was passed on to our client when the business was leased to our client. Your clients are aware that if there is no such storage area the premises could not be leased as a bakery;

3. Our client's past attitude towards her obligations under the lease has been nothing but complied with the provisions of the lease.

4. Your clients have tried all tactics which they could imagine in order to take the business back.

5. Our client still await (sic) refund of the outgoing charge.

Please TAKE NOTICE that your clients will be held liable for any damage if the threat is carried out and any attempt to physically remove the flour will be considered as violation of our client's right and will be physically defended accordingly.

19   On 9th December 1998, the defendants' solicitors wrote again, inter alia demanding that the shopfront be replaced within fourteen days. On 10th December 1998, Mr. Perri and two others attended at the shop, removed flour stored in the passageway and stacked it on the footpath in front of the shop, and also placed a garbage bin and recycle sack from the yard behind the shop on the footpath. 20   By letter dated 22nd December 1998, the plaintiff's solicitors wrote to the defendants' solicitors in the following terms:

We refer to earlier correspondence in this matter and now enclose a draft Summons.

We draw your attention to interlocutory Orders 11 and 12. Unless we have your written undertaking on behalf of Mr. and Mrs. Perri by 1.00pm on 23 December, 1998 that pending the Christmas period (i.e., until Monday 11 January, 1999) your clients will not:

1. interfere with our client's use of the passage-way immediately adjacent to the demised premises for the purposes of storage of flour;

2. interfere with our client's use of the yard at the rear of the demised premises for storage of rubbish and recyclable material on a weekly basis until the collection of it by the Council;

3. attempt to interfere with the roller-shutter door at the front of the demised premises as outlined in your letter dated 9 December, 1998.

We are instructed to approach the Duty Judge in Equity on Thursday 24 December, 1998 for an injunction in terms set out in interlocutory Orders 11 and 12 of the Summons.

Given the Christmas period, it would appear sensible for the parties to have a "cooling-off" period over Christmas and not unnecessarily waste money and Court time seeking interlocutory relief over Christmas. It may be that by 11 January, 1999, the parties can resolve the situation.

If you are instructed not to provide the undertakings requested, please advise whether you have instructions to accept service of the Summons and Affidavit.

21   It appears that no undertaking was received, and these proceedings were commenced on 24th December 1998. 22   It appears that between 2nd November 1994 and 26th August 1998, the plaintiff made a number of payments in respect of garbage collection amounting to $2,274.00, and clearing out of a grease-trap amounting to $1,096.74. There is also evidence that in early 1996, the plaintiff paid $160.65 for water rates, following a statement by Mr. Perri to the plaintiff that if this was not paid, the Water Board would cut off the water.

ISSUES

23   It is first necessary to resolve some factual issues in the case, in particular as to what was the practice of the defendants, immediately prior to the plaintiff's taking over the business, in relation to the storage of flour and the placement of garbage bins; and what room there was inside the shop, then and more recently, for the storage of flour and the placement of garbage bins. In relation to those questions, it will be necessary to say something about the credibility of the plaintiff and Mr. Perri. 24   The next issue concerns the entitlement of the plaintiff in relation to the passageway beside the shop and the yard behind it. It is common ground that these are "common areas" within the plaintiff's agreement for lease, but the plaintiff claims entitlement to use them pursuant to a partly implied term of the lease and on the basis of estoppel. 25   Finally, there is the claim for moneys paid.

FACTUAL ISSUES
Evidence

26   The plaintiff gave evidence to the effect that, immediately prior to her taking over the shop business, the defendants, in the conduct of their business, stored flour in the passageway beside the shop. She also gave evidence that, then as now, there was no place in the interior of the shop in which flour could be stored. She said that, in paying for the machinery and equipment and entering into the lease of the shop, she relied on the conduct of the defendants and on being able to continue in the same manner in her own business. She also gave evidence that the defendants, immediately before she took over the shop, had a garbage bin and sack in the yard at the rear; and that she relied on this practice also. She said that, due to increased business, the use of flour had increased from about 35-40 bags per week to about 75-80 bags per week. 27   The plaintiff gave evidence through an interpreter, and it is plain that her ability to speak or even understand English is very limited. It is also clear that all conversations between the plaintiff and Mr. Perri were in fact conducted on her behalf by her husband. However, the plaintiff's husband gave no evidence on the matters to which I have just referred. The plaintiff's husband and son gave evidence only concerning the circumstances of payments made for garbage removal and to the Water Board. 28   Evidence was given by Mrs. Whitehead, an employee of the defendants in 1991 and 1992, who also lives adjacent to the passageway beside the shop. She confirmed that the defendants did store flour in the passageway, but also gave evidence that some flour bags were kept inside the shop. She was unable to give a precise account of quantities and times. Evidence was also given by Mr. Williams, who resides in the house opposite the shop. He confirmed that the defendants stored flour in the passageway, at least to the extent of saying that he saw deliveries of flour being stacked there, and that occasionally he saw flour in the passageway in the afternoon when he came home from work. 29   Mr. Perri gave evidence that, in the defendant's conduct of the business, there was no storage of flour in the passageway, except that, when a delivery of flour was made, it was left in the passageway for a short time until it could be moved inside the shop. His evidence was that the business used about 20-25 bags of flour per week, and that there was room for storage of that amount of flour inside the shop. The flour was moved from the passageway into the shop within two hours of being delivered. Mr. Perri also denied that a garbage bin was kept in the backyard: he claimed that, in his conduct of the business, the only garbage container was kept inside the shop. Mr. Perri also gave evidence that, although there had been a lockable door between the passageway and the street while the defendants were conducting the business, a lockable door between the passageway and the yard had been added without the defendants' consent during the plaintiff's conduct of the business. This was contradicted by Mrs. Whitehead, who said that this door had been there during the defendants' conduct of the business. 30   One of the lessees of the adjoining shop, Mr. Taylor, swore an affidavit asserting complaints concerning the plaintiff's use of the backyard and passageway. However, in his oral evidence Mr. Taylor said he had not given instructions for the preparation of that affidavit, that he did not read it beyond the first page, that he signed it under some pressure, and that in fact he had not complained to Mr. Perri about those matters. 31   No evidence for the defendants was led from Mrs. Perri.

Decision

32   I find that I am unable to rely with any confidence on the evidence of either the plaintiff or of Mr. Perri. 33   As regards the plaintiff, she gave evidence that the equipment along the side of the shop adjacent to the passageway had not been moved towards the back of the shop. In my opinion, it is clear beyond argument that, prior to the installation of two refrigerators by the plaintiff, the main oven was very close to the plate-glass shopfront: see for example photograph A of Exhibit D5 In my opinion, it is very clear that, as a result of the installation of the refrigerators, that oven has been moved towards the rear. This is also consistent with there being a place for storage of flour bags inside the shop, near the door at the rear of the shop, at the time when Mr. and Mrs. Perri were running the business. That there was such a storage area is confirmed by Mrs. Whitehead's evidence, and also by a plan showing the layout of the interior at the time equipment was installed. In my opinion, the plaintiff's evidence that there was no storage space for flour whatsoever inside the shop at the time she took it over, and her evidence that the equipment was not moved towards the back of the shop, is either deliberately false or shows such a lack of recollection and understanding as to throw the whole of her evidence into question. 34   As regards Mr. Perri, he admitted that the allegation in his solicitor's letter that there had been no conversation and no agreement about the removal of the glass shopfront and the installation of a roller-door was false. He gave no explanation as to how such a false allegation came to be made on his behalf, in the course of many letters, all of which required removal of the roller-door. In my opinion also, the circumstances of his obtaining of the affidavit from Mr. Taylor, alleging complaints by Mr. Taylor which Mr. Taylor, in his oral evidence, denies making, counts heavily against Mr. Perri's credibility. Also, in my opinion his evidence about keeping the garbage bin inside the shop was false, probably deliberately so: it is highly improbable, and also contradicted by Mrs. Whitehead. And his evidence about the door between the passageway and the yard is false, and at least confirms unreliability. 35   I am satisfied by the plan to which I referred, and the evidence of Mrs. Whitehead, that there was a space for flour storage near the rear door of the shop; and it seems that up to about thirty bags of flour could have been stored there. I am satisfied that this facility for storage was eliminated when the refrigerators were installed at the front of the shop and equipment was moved along the side wall towards the back of the shop. 36   While I give little weight to Mr. Perri's evidence, I am not satisfied by the evidence called for the plaintiff that Mr. and Mrs. Perri used the passageway for storing flour otherwise than as a temporary measure after flour was delivered. Mr. Williams' evidence suggests that the flour was left there for more than one or two hours, as Mr. Perri claims; but it is not sufficient to show permanent storage. In coming to this conclusion, I am assisted by the circumstance that the plaintiff gave false evidence that there was no space for storage inside the shop, and that the plaintiff's husband gave no evidence on the matter at all. 37   As regards the use of the yard for garbage, I am satisfied that there was at least a garbage bin used by Mr. and Mrs. Perri and kept in the yard behind the shop.

PLAINTIFF'S ENTITLEMENT
Submissions

38   Mr. Freeman for the plaintiff referred to Wilcox v. Richardson (1997) 43 NSWLR 4. He submitted that the use of the yard for a garbage bin and recycle sack, and the use of the passageway for storing flour, were both continuous and apparent, at the time the plaintiff took her lease, and also reasonably necessary for the conduct of the business. He also referred to Dillon v. Nash (1950) VLR 293; Dowse v. Wynyard Holdings Ltd. (1962) NSWR 252; Dikstein v. Kanevsky (1947) VLR 216; Karaggianis v. Malthouse Pty. Ltd. (1979) 21 SASR 581; Homebush Abattoir Corporation v. Bermira Pty. Ltd. (1991) NSW Conv.R 55-579; Eastleigh Broough Council v. Walsh 91985) ANZ Conv.R 304; Street v. Mountford (1985) ANZ Conv.R 318; Lewis v. Bell (1985) NSW Conv.R 55-250. 39 He submitted that it was not possible to have a garbage bin inside the shop; and he referred me to the Food (General) Regulation 1997, and in particular Regulation 32, which is in the following terms:

32(1) A person must not manufacture, handle or display food in such a manner as to cause the food to be contaminated or liable to become contaminated.

(2) A person who uses any premises or vehicle for the purpose of manufacturing or handling food must cause the premises or vehicle, the food, any appliances used in the preparation of the food and any utensils supplied for eating or drinking the food:

(a) to be kept clean and free from vermin and other likely sources of contamination, and

(b) to be protected from contamination by persons, dust, vermin, animals, fumes likely to be taken up by the food (either directly or indirectly) and other likely sources of contamination, and

(c) to be kept free from foul odours.

40   He submitted that it was not reasonable, having regard to the dimensions of the shop, to suggest that one hundred bags of flour could be stored inside the shop. Mr. Perri claimed he had stored thirty bags, and conceded that it was not possible to store one hundred bags in the shop. For the defendants to say that the plaintiff had to store all bags in the shop was to say that the plaintiff was not permitted to increase her business. 41   No complaint was made until 1997. For five years, the plaintiff had been using the passageway to store flour. In those circumstances, equity would intervene, particularly in the light of the defendants' lack of bona fides, as illustrated inter alia in the submission of Mr. Taylor's evidence. 42   Mr. Harris for the defendants submitted that Wilcox v. Richardson showed that the rules about continuous and apparent easements were only particular applications of the ordinary rules about the implication of terms in a contract; and so were subject to the limitations discussed in BP Refinery (Westernport) Pty. Ltd. v. Shire of Hastings (1977) 180 CLR 266 applied. In this case, the terms sought to be implied were not reasonable or necessary for business efficacy, and they were inconsistent with express terms of the lease, in particular, cls.17, 20 and 24. 43 In so far as the plaintiff relied on estoppel, no representation was made on which an estoppel could be based. There was no evidence of any oral or written representation. Clause 12 of the lease precluded the existence of an estoppel. It was insufficient that the defendants had operated their business in a particular way. It was irrelevant that no other tenant was in fact complaining; that use of the yard and passageway had continued without objection for some time; and that there may be bad faith in the attitude of the defendants. In any event, the plaintiff had exercised her option with full knowledge that the defendants would not permit use of the passageway and yard other than for access.

Decision

44 It is apparent that cls.17 and 20 of the lease place the common areas, which include the yard and the passageway, under the control of the defendants. However, it is also clear that other provisions of the lease place some limits on the control which the defendants can exercise. Clause 24 gives the plaintiff the right to use common areas for access, so it is clear that the defendants cannot exercise their control over the common areas so as to defeat that right. 45 Clause 8 requires, and thus entitles, the plaintiff to use the premises as a hot bread shop. If, on the true construction of that clause and its application to the circumstances, that use involves some use of common areas, then in my opinion cl.8 would prevent the defendants from using their control of the common areas to prevent that particular use. 46 In deciding what is involved, as a matter of construction, in the use of the premises as a hot bread shop, it is relevant to look both at the way the defendants conducted the business immediately before the plaintiff took it over, and also at what is reasonably necessary for the conduct of that business. 47 I have found that, in their conduct of the business, the defendants had a garbage bin in the backyard, and also used the passageway for temporary storage of flour on the day of delivery. In my opinion also, those uses of those common areas can be regarded as reasonably necessary for the conduct of the hot bread shop. Although Regulation 32 of the Food (General) Regulation does not in terms require garbage not to be kept in a room where food is prepared, it seems clear that proper compliance with it would require garbage to be kept in such a room only for short periods: any longer keeping of garbage should be in a container away from the preparation of food. Similarly, having regard to the size of the shop and the activity required for the conduct of the business, in my opinion it is reasonably necessary to have a place for immediate reception of flour deliveries outside the shop itself, but under cover. Accordingly, in my opinion, the conduct of a hot bread shop as contemplated by cl.8 does involve having appropriate garbage storage in the yard and temporary storage of flour in the passageway. 48 In making these findings, I am not making an ad hoc implication of terms for business efficacy, such as would require full compliance with the requirements of BP Refinery (Westernport). Rather, I am spelling out what is involved in the actual terms of the lease, on their true interpretation. In my opinion, this exercise is similar to that conducted by the Court of Appeal in Wilcox. 49   However, the plaintiff claims a much wider entitlement than that indicated by the above discussion. The business now requires the capacity to store about one hundred bags of flour. According to the plaintiff, there is no capacity in the shop to store any bags; and even the defendants suggest only a previous capacity to store thirty bags. The plaintiff claims that if she is restricted in the number of bags she can use, this would be to imply a term that her business not increase. 50   I accept that one cannot imply a term in the lease that the plaintiff's business not expand. However, the plaintiff's case depends upon cutting down in some way the defendants' express right, given under the lease, to control the common areas. I have indicated certain respects in which, in my opinion, other terms of the lease do cut down that right. However, I do not think the plaintiff's obligation and entitlement to use the premises as a hot bread shop can cut down the defendants' right to control the common areas to any greater extent than indicated above. To hold otherwise would mean that, by expanding the business, the plaintiff would increase her rights beyond those actually granted by the lease. 51   I would also add that the evidence before me does not establish affirmatively that the plaintiff could not store one hundred bags of flour inside the shop, if the refrigerators which she installed in the shop were removed. Although the defendants do not now contend that the installation and use of the refrigerators is a breach of the plaintiff's obligation to use the premises only as a hot bread shop, the plaintiff has not contended, nor do I think it could be contended, that the use of the refrigerators is necessary for the use of the premises as a hot bread shop. 52   For the reasons advanced by Mr. Harris, the plaintiff cannot improve her situation of the basis of estoppel. In my opinion, there is no basis for holding that the plaintiff has any wider rights than those indicated earlier.

MONEYS PAID
Submissions

53   Mr. Freeman submitted that all the payments were in respect of outgoings, which under cl.7 of the lease were paid by the lessor, with an appropriate proportion then being recouped from the lessee. There was no agreement between the plaintiff and defendants varying that position. The plaintiff had as a practical matter been compelled to pay what were in truth debts of the defendants, and so could recover those payments as money paid. 54   Mr. Harris submitted that all the payments in question were in respect of services provided peculiarly to the plaintiff, both in relation to the clearing out of the plaintiff's grease trap and the removal of the plaintiff's garbage.

Decision

55   In my opinion, the payments made in respect of garbage removal and the grease trap fall within cl.8(5) of the lease, and are not debts which the defendants were bound to pay. While they might also be outgoings, even outgoings "in respect of the property" within cl.7, cl.7 does not in terms impose an obligation on the lessor to pay such outgoings: it merely provides a mechanism for the lessor to recoup a proportion of them. 56   These considerations do not necessarily apply to the payment of around $160.00 said to be for water rates. However, I am not satisfied that the plaintiff has discharged her onus of proof in relation to that payment. Having regard to the plaintiff's inability to speak or understand English, and my general view on the plaintiff's credibility, I am not satisfied by her evidence that a conversation occurred in relation to that $160.00 as set out in her affidavit. Furthermore, the evidence is not sufficiently clear, as to what any such payment was for, to establish that it could not fall within cl.8(5).

CONCLUSION

57   In the result, in my opinion, the plaintiff is entitled to a declaration that, under her agreement for lease, she is entitled to use the coolroom at the rear of her shop; that she is entitled to have a garbage bin and recycling sack in the yard behind the shop; and that she is entitled to have flour delivered to the passageway beside the shop, provided that it does not block the passageway and provided that it is removed from the passageway as soon as reasonably possible on the day of delivery. She is also entitled to a declaration that she is entitled to maintain the roller-shutter door at the front of the demised premises. These entitlements will continue during the term of the plaintiff's agreement for lease. 58   At present, I am not minded to grant any injunction pursuant to these declarations. No application is made for specific performance of the agreement for lease, and my present view is that injunctions should be granted only if the plaintiff alleges and proves readiness, willingness and ability to perform the lease on her part. However, I am prepared to reserve liberty to apply. 59   As regards costs, my tentative view is that the plaintiff should have the costs of the proceedings until the defendants conceded her right to use the coolroom and maintain the roller-shutter door, that is on or about 4th August 1999. Having regard to the limited success of the plaintiff on other matters, my tentative is that the plaintiff should have one-half of her costs thereafter.

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Last Modified: 09/16/1999