Prasad v Fairfield City Council - [2001] NSWADT 28

CITATION: Prasad & Anor -v- Fairfield City Council [2001] NSWADT 28

DIVISION: Retail Leases Division

PARTIES: APPLICANTS
Daniel Prasad
Stephen Walker
RESPONDENT
Fairfield City Council

FILE NUMBER: 005020

HEARING DATES: 28/08/2000
29/08/2000
30/08/2000
01/09/2000

SUBMISSIONS CLOSED: 12/19/2000

DATE OF DECISION:
02/21/2001

BEFORE: Fox R - Judicial Member

APPLICATION: Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money - Claim for relief against forfeiture

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED: Aussie Traveller Pty Ltd v Marklea Pty Limited (1997) QCA 2
O’Keefe v Williams (1910) 11 CLR 171
High Trees House case [1947] KB 130
Waltons v Maher (1988) 164 CLR 386
Gordon v Lidcombe Investment Pty Limited [1966] 2 NSWR 9
Bocchina v Gorn Management 515A. 2D 1197(MD). 1986

REPRESENTATION: APPLICANT
A Macpherson, solicitor
RESPONDENT
M Jenkins, barrister

ORDERS: 1. Occupancy by Applicants of the Respondent’s premises known as shop 4 the Abbotsbury Community Shopping Centre is governed by Lease for a term to end in April 2002, on the conditions and covenants contained in the Lease entered into between the Respondent and the Youssef brothers in 1994, as varied by Deed executed between the Applicants and the Respondent in November 1997. ; 2. Application by Applicant for relief against forfeiture granted.; 3. Pursuant to Section 72(1)(c)(iv) Respondent ordered to submit Lease document to the Applicants no later than 23 March 2001, all parties to execute it no later than 27th April 2001.; 4. Respondent to: ; (i) Prevent owner of shop 1 in the Centre from selling hot barbecued chickens or prepared coffee, by 23 March 2001, and if that is not done by that date, then the Applicants are relieved from the obligation to pay rent under their Lease from 23 March 2001 until such time as the Respondent effects such compliance by the occupier of shop 1.; (ii) Take all other action necessary to ensure that occupant of shop 1 trades within the authorised use in the Lease as presently registered on title.; 5. Respondent not to enter into any Lease for any part of the Abbotsbury Community Shopping Centre which would allow such premises to be used for the preparation or sale of take-away foods of any kind, or for a restaurant of any kind selling foods similar to those sold by the Applicants pursuant to the authorised use in the Applicants Lease.

1 The Applicants Messrs Prasad and Walker conduct a hot food take-away shop in a small suburban shopping centre entirely owned and conducted by the Respondent Council. The shopping centre is known as the Abbotsbury Community Shopping Centre and consists of a community hall facility, flanked by one very large shop (the supermarket), two very small shops, and two medium-sized shops, being shops numbered 4 and 5. Shop number 4 is the space occupied by the Applicant, and shop number 5 is the shop previously occupied as a video store, but, having been vacant for some 2…

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.

Keep reading for free

Create a free CaseChat account to read Prasad v Fairfield City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] NSWADT 28
Decision Date: 02/21/2001

CaseChat Overview and Summary

In the matter of Prasad and others versus Fairfield City Council, the case was heard in the Supreme Court of New South Wales. The applicants, the Prasads, sought relief from forfeiture and an injunction against the council to prevent a breach of the lease's covenant. The dispute centred around the authorised use of the shopping centre and the alleged breach by the occupant of shop 1, who was selling hot barbecued chickens and prepared coffee, contrary to the terms of the lease.

The legal issues before the court were whether the council had breached the lease by allowing the occupant of shop 1 to sell hot barbecued chickens and prepared coffee and whether the council was required to prevent such sales. Additionally, the court had to determine if the Applicants were entitled to relief from forfeiture and if the council was to be restrained from entering into any lease that would allow the preparation or sale of takeaway foods or the operation of a restaurant selling similar foods to those sold by the Applicants.

The court found that the council had indeed breached the covenant by allowing the occupant of shop 1 to sell hot barbecued chickens and prepared coffee. The court also held that the Applicants were entitled to relief from forfeiture and that the council was to be restrained from entering into any lease that would permit the preparation or sale of takeaway foods or the operation of a restaurant selling similar foods to those sold by the Applicants. Consequently, the court ordered the council to submit a lease document to the Applicants, which all parties were to execute by a specified date. The council was further ordered to take action to prevent the occupant of shop 1 from selling hot barbecued chickens and prepared coffee and to ensure that all occupants of the shopping centre traded within the authorised use in their respective leases. The court also directed the council not to enter into any lease that would allow the preparation or sale of takeaway foods or the operation of a restaurant selling similar foods to those sold by the Applicants.

Orders

Orders of the court

1. Occupancy by Applicants of the Respondent’s premises known as shop 4 the Abbotsbury Community Shopping Centre is governed by Lease for a term to end in April 2002, on the conditions and covenants contained in the Lease entered into between the Respondent and the Youssef brothers in 1994, as varied by Deed executed between the Applicants and the Respondent in November 1997. ; 2. Application by Applicant for relief against forfeiture granted.; 3. Pursuant to Section 72(1)(c)(iv) Respondent ordered to submit Lease document to the Applicants no later than 23 March 2001, all parties to execute it no later than 27th April 2001.; 4. Respondent to: ; (i) Prevent owner of shop 1 in the Centre from selling hot barbecued chickens or prepared coffee, by 23 March 2001, and if that is not done by that date, then the Applicants are relieved from the obligation to pay rent under their Lease from 23 March 2001 until such time as the Respondent effects such compliance by the occupier of shop 1.; (ii) Take all other action necessary to ensure that occupant of shop 1 trades within the authorised use in the Lease as presently registered on title.; 5. Respondent not to enter into any Lease for any part of the Abbotsbury Community Shopping Centre which would allow such premises to be used for the preparation or sale of take-away foods of any kind, or for a restaurant of any kind selling foods similar to those sold by the Applicants pursuant to the authorised use in the Applicants Lease.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Prasad & Anor -v- Fairfield City Council [2001] NSWADT 28
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS Daniel Prasad Stephen Walker RESPONDENT Fairfield City Council
FILE NUMBER:	005020
HEARING DATES:	28/08/2000 29/08/2000 30/08/2000 01/09/2000
SUBMISSIONS CLOSED:	12/19/2000
DATE OF DECISION:	02/21/2001
BEFORE:	Fox R - Judicial Member
APPLICATION:	Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money - Claim for relief against forfeiture
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Aussie Traveller Pty Ltd v Marklea Pty Limited (1997) QCA 2 O’Keefe v Williams (1910) 11 CLR 171 High Trees House case [1947] KB 130 Waltons v Maher (1988) 164 CLR 386 Gordon v Lidcombe Investment Pty Limited [1966] 2 NSWR 9 Bocchina v Gorn Management 515A. 2D 1197(MD). 1986
REPRESENTATION:	APPLICANT A Macpherson, solicitor RESPONDENT M Jenkins, barrister
ORDERS:	1. Occupancy by Applicants of the Respondent’s premises known as shop 4 the Abbotsbury Community Shopping Centre is governed by Lease for a term to end in April 2002, on the conditions and covenants contained in the Lease entered into between the Respondent and the Youssef brothers in 1994, as varied by Deed executed between the Applicants and the Respondent in November 1997. ; 2. Application by Applicant for relief against forfeiture granted.; 3. Pursuant to Section 72(1)(c)(iv) Respondent ordered to submit Lease document to the Applicants no later than 23 March 2001, all parties to execute it no later than 27th April 2001.; 4. Respondent to: ; (i) Prevent owner of shop 1 in the Centre from selling hot barbecued chickens or prepared coffee, by 23 March 2001, and if that is not done by that date, then the Applicants are relieved from the obligation to pay rent under their Lease from 23 March 2001 until such time as the Respondent effects such compliance by the occupier of shop 1.; (ii) Take all other action necessary to ensure that occupant of shop 1 trades within the authorised use in the Lease as presently registered on title.; 5. Respondent not to enter into any Lease for any part of the Abbotsbury Community Shopping Centre which would allow such premises to be used for the preparation or sale of take-away foods of any kind, or for a restaurant of any kind selling foods similar to those sold by the Applicants pursuant to the authorised use in the Applicants Lease.