Ray Mullins & Sons Pty Ltd v Skycorp Investments Pty Ltd
[2006] WASC 241
RAY MULLINS & SONS PTY LTD -v- SKYCORP INVESTMENTS PTY LTD [2006] WASC 241
| Link to Appeal : | [2011] WASCA 49 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 241 | |
| Case No: | CIV:2288/2003 | 21, 22 & 23 AUGUST 2006 | |
| Coram: | TEMPLEMAN J | 31/10/06 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Findings as to extent of lettable areas | ||
| B | |||
| PDF Version |
| Parties: | RAY MULLINS & SONS PTY LTD (ACN 009 177 324) SKYCORP INVESTMENTS PTY LTD (ACN 078 121 534) |
Catchwords: | Commercial tenancy Complex of different tenants Single lessor Rent calculated on lettable area occupied by each tenant Whether rent payable on various parts of plaintiff's premises Tenants contribute to outgoings on basis of proportion of each tenant's lettable area to ground lease as a whole Lessor's permission for tenants other than plaintiff to use common areas without designation as lettable area Whether lessor obliged to designate as lettable any area actually occupied on any basis by a tenant Obligation to act fairly and reasonably: in good faith Whether common mistake as to area forming basis for calculation of promotional fund Turns on own facts |
Legislation: | Nil |
Case References: | Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Dockpride Pty Ltd v Subiaco Redevelopment Authority [2005] WASC 211 Birrell v Dryer (1884) 9 App Cas 345 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 MacKenzie v Albany Finance Ltd [2004] WASCA 301 Mander Pty Ltd & Anor v Clements [2005] WASCA 67 Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 Pukallus & Anor v Cameron (1982) 180 CLR 447 Young v Queensland Trustees Ltd (1956) 99 CLR 560 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SKYCORP INVESTMENTS PTY LTD (ACN 078 121 534)
Defendant
Catchwords:
Commercial tenancy - Complex of different tenants - Single lessor - Rent calculated on lettable area occupied by each tenant - Whether rent payable on various parts of plaintiff's premises - Tenants contribute to outgoings on basis of proportion of each tenant's lettable area to ground lease as a whole - Lessor's permission for tenants other than plaintiff to use common areas without designation as lettable area - Whether lessor obliged to designate as lettable any area actually occupied on any basis by a tenant - Obligation to act fairly and reasonably: in good faith - Whether common mistake as to area forming basis for calculation of promotional fund - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Findings as to extent of lettable areas
Category: B
Representation:
Counsel:
Plaintiff : Mr A Metaxas
Defendant : Mr P G Clifford
Solicitors:
Plaintiff : Arthur Metaxas & Co
Defendant : Lawton Gillon
Case(s) referred to in judgment(s):
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Dockpride Pty Ltd v Subiaco Redevelopment Authority [2005] WASC 211
Case(s) also cited:
Birrell v Dryer (1884) 9 App Cas 345
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
MacKenzie v Albany Finance Ltd [2004] WASCA 301
Mander Pty Ltd & Anor v Clements [2005] WASCA 67
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336
Mummery v Irvings Pty Ltd (1956) 96 CLR 99
Pukallus & Anor v Cameron (1982) 180 CLR 447
Young v Queensland Trustees Ltd (1956) 99 CLR 560
(Page 3)
1 TEMPLEMAN J: The plaintiff, Ray Mullins & Sons Pty Ltd, is the tenant of part of a commercial building at the Hillarys Boat Harbour. The building stands on premises which are held by the defendant, Skycorp Investments Pty Ltd, pursuant to a ground lease made in 1997 between the Minister for Transport as the lessor and the defendant as lessee.
2 The plaintiff occupies its part of the building pursuant to a sub-lease (to which I shall refer as "the lease") for a term of 12 years from 1 December 1997. The premises are mainly on the first floor, and include balconies to the north and south. Access is by way of a foyer and stairs or a lift from the ground floor.
3 Disputes have arisen between the plaintiff and the defendant about the rent payable under the lease and the extent of the plaintiff's obligation to contribute to variable outgoings and a promotional fund. The reason for the dispute is the parties' inability to agree the precise area of the building occupied by the plaintiff and the lettable areas occupied by other tenants. These areas form the basis for the calculation of rent, variable outgoings and the promotional fund. I deal with each in turn.
The area of the premises occupied by the plaintiff
4 The term "Premises" is defined in cl 1.1 of the lease to mean that part of the Building specified in item 2 of the Schedule. This definition is in the following terms:
"That part of the 1st Floor of the Building known as at the date of this Deed as the Function Centre shown for identification purposes only as the area outlined in red on the plan annexed to this Deed and having an area of approximately ONE THOUSAND THREE HUNDRED AND NINETY THREE SQUARE METRES (1,393m2)."
5 By cl 1.1 of the lease, the rent payable by the plaintiff is that specified in item 5 of the Schedule. This provides that the premises would be rent free from 1 December 1997 to 30 November 2001. From 1 December 2001 until varied, the rent was to be $139,300 per annum, calculated at the rate of $100 per square metre per annum.
6 The genesis of the dispute was a measurement of the floor area of the plaintiff's premises by its manager; and subsequently, by a surveyor appointed by the plaintiff.
(Page 4)
7 These measurements showed that the area was considerably less than 1393m2; a fact now accepted by the defendant. The defendant contends that the actual floor area of the plaintiff's premises is 1113.6m2. However, the plaintiff contends that the correct area is 1001.7m2. The difference between the parties is therefore 111.9m2.
8 The difference results from the plaintiff's contention that four specific areas should not be included. These areas are identified conveniently on a drawing prepared by David Rodney Read, an articled surveyor employed by Giudice Surveys, the defendant's surveyor (exhibit 17).
9 On the drawing, the areas are identified as:
1. store and passageway;
2. western toilet block;
3. lift passage;
4. stairs (from the ground to the first floor).
11 Against that, the defendant contends that the dispute may be resolved by the application of a document produced by the Property Council of Australia ("the PCA") in March 1997 and entitled "Method of Measurement for Lettable Area". The defendant contends that this is the appropriate approach because the lease defines "Floor Area Of The Premises" as the floor area of the Premises "as certified by a licensed surveyor using the latest method of measurement published by the Property Council of Australia Limited for commercial retail premises". It is common ground that the relevant method of measurement is that contained in the March 1997 document referred to above.
12 In my view, neither approach is correct. The difficulty with the plaintiff's submission is that there is no ambiguity in the lease itself. That is to say, absent the plan, there is nothing in the wording of the lease
(Page 5)
- which provides any basis for identifying the demised area in general, or the four disputed areas in particular.
13 The difficulty with the defendant's approach is that the PCA method is intended to provide a uniform basis for measurement of leased areas. It is not intended to identify the areas to be included in the lease. It was certainly not so intended in the present case. I repeat: the parties intended to identify the leased areas by reference to a plan. Had the premises been so identified, then the PCA method would have provided a basis for their measurement.
14 In my view, the way to resolve the impasse is to apply the principle to which Gibbs J referred in Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109:
"… if the language [of a contract] is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust …"
15 Of course, on the view I take, the object here is not to resolve ambiguity in the construction of the lease but, more fundamentally, to endeavour to discover the intention of the parties. And because this is a commercial lease, it must be assumed that the parties intended a sensible commercial result.
16 Consistently with that approach, I take it to be the parties' intention that those parts of the premises which were to be used exclusively by the plaintiff and were of benefit to the plaintiff in the conduct of its business, should be included in the demised premises.
17 Against that background, I deal with each of the four disputed areas.
1 Store and passageway
18 This is an area on the north-western corner of the first floor. It was measured by Mr Read as having an area of 25.9m2 (24.8m2 according to the plaintiff). It consists of a passageway leading to fire escape stairs beyond a one-way door. That is, a door which permits egress from the passageway to the fire escape, but does not permit access in the opposite direction. A similar door leads from the plaintiff's premises into the passageway (exhibit 9, appendices 1, 2 and 3).
(Page 6)
19 The passageway provides the only means of access to electrical switchboards serving the plaintiff's premises, and other premises on the first floor occupied by Bar 120. It is common ground that the area occupied by the switchboards is not included in the lease.
20 The passageway also provides access to two storerooms. I accept the evidence of Paul Neville McLean, who is, in effect, the plaintiff's manager, that the storerooms are used by Bar 120 and were used by the previous tenant of its premises: but never by the plaintiff. This is consistent with the evidence of Justin John Palmer, the manager of Bar 120, that the storerooms have been used for the storage of cleaning equipment for its premises.
21 There is no agreement between the plaintiff and Bar 120 relating to the use of the storerooms.
22 The fire escape stairs are accessible also from the Bar 120 premises, via a landing, or lobby which does not form part of those premises: see the plan included in the Bar 120 lease, being part of Mr Palmer's statement, exhibit 4.
23 In my view, it is improbable that the parties intended to include the disputed store and passageway in the premises demised to the plaintiff. Had they done so, it would have been necessary to provide some right of access to Bar 120's switchboard.
24 The absence of any agreement between the plaintiff and Bar 120 for the use of the storage area is some indication that the plaintiff did not regard the disputed area as being within its lease: and the fact that the equivalent area leading from Bar 120's premises to the stairs is not included in the Bar 120 lease, suggests that the defendant intended to deal similarly with the plaintiff. I appreciate that the landing or lobby leading from the Bar 120 exit would be used in common with the plaintiff, whereas the passageway leading from the plaintiff's exit would be used only by its patrons. However, such indications as there are, suggest that the disputed area is of no commercial value to the plaintiff, leading, on balance, to the conclusion that the store and passageway should be excluded from the demised area.
25 I accept Mr Read's measurement of that area. He impressed me as a careful and conscientious witness who took care to ensure the accuracy of his measurements.
(Page 7)
2 Western toilet block
26 It is plain from Mr McLean's evidence, which I accept, that the toilets (actually located on the eastern side of the plaintiff's premises) are the only toilets on the first floor and are used exclusively by the plaintiff's patrons. That being so, it seems probable that the parties intended the toilets to be included in the demised premises.
27 The plaintiff contends, however, that the toilets should be excluded. This contention is based on the methodology for ascertaining the Gross Lettable Area Retail ("GLAR") set out in the PCA publication referred to above.
28 I have already expressed the view that it is inappropriate to resort to the PCA method to resolve disputes of this kind. However, even if I am wrong in that view, the PCA method does not assist the plaintiff. That is because par 1.3 of the GLAR guidelines for commercial buildings (exhibit 1, page 151) excludes toilets only where they are "provided as standard facilities in the building".
29 The term "standard facilities" is defined to include:
"… toilets … that can be used by the occupier/tenant of the floor or building and that are not purpose built".
- I take that to mean toilets that are available for use by the occupier or tenant, rather than being for his exclusive use.
30 The term "purpose built" is defined to refer to facilities "provided specifically for an individual tenant such as … toilets". These are to be included in the lettable area.
31 In the present case, the toilets in question were not built specifically for the plaintiff: they were in existence before the commencement of the lease. However, it is clear that the toilets were intended to be used exclusively by whoever occupied those premises: no-one else had access to them. The toilets were not simply available for use by the plaintiff's patrons.
32 I therefore conclude, both as a matter of commercial common sense and by the application of the PCA method, that the toilets are to be included in the plaintiff's premises. The relevant area is agreed between the parties as being 52.6m2.
(Page 8)
3 & 4 Lift passage and stairs
33 As I have noted above, access to the plaintiff's premises on the first floor is by way of stairs or lift, leading from a foyer on the ground floor. That was not the means of access at the commencement of the lease. However, the original access (on the eastern side of the premises) was removed and the new stairs constructed so as to permit redevelopment of the eastern side. The lift was already in place, but was incorporated into the new access by the construction of a short passageway.
34 In my view, given that the stairs, passageway and lift are used exclusively by the plaintiff's patrons, it should be inferred that the parties intended the relevant areas to be included in the demised premises. Their total area is agreed at 60.2m2: exhibit 17 and TS 231.
35 The application of the PCA method leads to the same conclusion. That is to say, on any interpretation of the terms referred to above, the stairs, passageway and lift should be regarded as purpose built.
36 In reaching these conclusions I have had regard to the evidence of Mr McLean that the area under the stairwell has been used "for many years" by staff from Sharky's Café "taking in and removing goods" (exhibit 9, par 15).
37 I understand that evidence to mean that the area has been used by Sharky's Café for storage of goods, rather than as a means of access. Evidence to that effect was given by James Kemal Side, a director of the plaintiff. However, I can place little weight on Mr Side's observation because of his admission in cross-examination that he had never been in the area (TS 237).
38 Evidence was given by Ronald Kenneth Kelly, who had been a cleaner and kitchen hand at Sharky's Café in 1999 - 2000 (and who was employed subsequently by the plaintiff). However, Mr Kelly gave no evidence about the use by Sharky's Café of the under-stair area.
39 I therefore conclude that any such use was informal, and does not detract from the finding that the area occupied by the stairs should be included in the demised premises. In any event, I accept Mr Poland's evidence that the area in question is small and consists of "basically just pipes, vents, concrete beams", servicing the building (TS 285).
(Page 9)
The plaintiff's contribution to variable outgoings
40 The plaintiff was obliged by cl 3.2 of the lease to pay a "Proportion of Variable Outgoings". This is defined in cl 1.1 to mean:
"… the proportion calculated as a percentage of the Variable Outgoings which the Floor Area of the Premises bears to the Floor Area of the Building".
41 For the reasons given above, the Floor Area of the Premises has remained constant at all material times. However, the Floor Area of the Building has not. That term is defined in cl 1.1 to mean:
"the aggregate floor area of the Lettable Parts of the Building as certified by the Lessor from time to time using the latest method of measurement published by the Property Council of Australia Limited for commercial retail premises".
42 The term "Lettable Parts" is defined to mean:
"those parts of the Building designated by the Lessor from time to time as being intended for letting".
43 The term "the Building" is defined to mean:
"the improvements erected on the Land and being part of the complex known as Sorrento Quay, Western Australia".
44 On combining these definitions, it becomes apparent that the defendant is obliged to designate those improvements erected on the Sorrento Quay complex which it intends to let, and to certify the total area involved, having applied the latest PCA method of measurement.
45 The evidence is that there has never been any formal designation by the defendant of the lettable areas: nor any formal certification of the relevant floor areas. This information can only be gleaned from the Variable Outgoings Apportionment Schedules given annually to the various tenants by the defendant, by which the variable outgoings are charged (exhibit 1, pages 170 - 185).
46 I accept the submission made by counsel for the plaintiff that the defendant's obligation to designate areas intended for letting requires it to act fairly and reasonably: in other words, in good faith. In Dockpride Pty Ltd v Subiaco Redevelopment Authority [2005] WASC 211 at [151]
(Page 10)
- to [158], Le Miere J referred to a number of Australian authorities in which a contractual duty of good faith has been implied.
47 However, in the present case the obligation would not, I think, require the defendant to do any more than designate the areas it actually intended to let, once it had formed that intention, based on commercial considerations. If the defendant formed that intention for an ulterior purpose - for example, to cause harm to the plaintiff - different considerations might apply. However, that is not the plaintiff's case.
48 This proposition illustrates the fundamental difference between the parties. The plaintiff's position, in essence, is that the defendant should have designated, as areas it intended to let, all the areas actually occupied by its various tenants, on whatever basis. Thus, where a café proprietor has a lease of a building but is permitted by the defendant to occupy an additional outdoor area beyond the leased premises, that area should be regarded as capable of being let. The defendant should therefore be regarded as having an intention to let it and should designate.
49 The defendant's position is quite different. The defendant contends that if it chooses to allow a tenant to occupy an area beyond its lease (in effect, as a licensee), and takes no rent for the privilege, then it has not formed an intention to lease the additional area and is not required to designate.
50 The principal witness on behalf of the defendant was Gregory David Poland, a director of the defendant, who appears to be responsible for its policy decisions.
51 Mr Poland referred to cl 15.10 of the defendant's ground lease, which is in the following terms:
"Restriction on Redeveloping Premises
The Lessee [defendant] must not on or before 30 September 2003 redevelop or permit to be redeveloped in any way whatsoever any part of the cafe common areas forming part of the Land and shown for the purpose of identification only as the areas coloured in green on the plan attached to this Document and marked 'A'."
52 I understand that the "cafe common areas" include those areas outside the building which have been occupied by various cafes for alfresco eating.
(Page 11)
53 In relation to each of these areas, Mr Poland's evidence-in-chief was that the defendant has not entered into any agreement with the relevant tenant and has not received rent or variable outgoings in relation to it.
54 In the course of cross-examination he said:
"What I can negotiate with the government to turn into net lettable I do so. What I have to get through State Planning I do so. I would love to be able to build on all of it and charge rent and [variable outgoings] for the lot." (TS 308)
55 A little later, the following exchange took place between counsel for the plaintiff and Mr Poland:
"Isn't the substance of what you have said, as far as you are concerned you would lease it all, all of those alfresco areas, but you just can't get the minister to agree?---No. I've got to build on them first.
No, you have got to have improvements?---No. You've got to redevelop.
Who told you that?---Isn't that what's in the intent of my ground lease?
Mr Poland, isn't it the case that if the minister said whatever arrangements you want to make with the occupiers of those premises on the northern side of your building are a matter between you and the occupants, that as far as you are concerned, all of those areas are lettable?---No, not really. Not at this stage.
Well, why not?---Why not? That's something I'd have to sit and figure out." (TS 309)
56 Later still in his cross-examination, Mr Poland did turn his attention to the construction of cl 15.10 of the ground lease. He focussed on the use of the word "common", in the context of the café common areas. He said:
"… in the negotiations I was told those areas were supposed to be common areas unless you get the government's consent … I couldn't - how can you make them - without their consent you can't take them away from being common." (TS 320)
(Page 12)
57 This, I think, explains Mr Poland's answer to the proposition put to him by counsel for the plaintiff:
"Mr Poland, I just want to give you an opportunity to comment on this so that it can't be said that I was unfair to you, but my contention is that the clause in the head lease is a prohibition on redevelopment, not a prohibition on you granting exclusive use of an area and recovering rent or variable outgoings and that by not charging rent or variable outgoings for, for example, these areas of the Quay Café alfresco area you have simply chosen not to, that's all?---They had existing leases, existing conditions. You have got to stick to what, you know, is in contractual form." (TS 327)
58 I do not accept that the contention put by counsel is necessarily correct. That is because I think Mr Poland is right - or at least arguably right - in his contention that the defendant cannot lease the café common areas, thereby granting exclusive possession. It is not possible to form a concluded view on this issue because the only relevant part of the ground lease which is in evidence is cl 15.10.
59 However, the defendant's conduct has not always been consistent with the position as Mr Poland put it. In one case the defendant granted an exclusive licence for the occupation of part of a common area: and in another, granted an option to lease part of the common area.
60 Further, some café owners have occupied café common areas and have been permitted to do so, at least in the sense that (as Mr Poland said in relation to Sharky's Café, and as I accept) "… we haven't given consent. They have just done it" (TS 313). I accept also Mr Poland's evidence that the defendant has never sought or received rent for such areas.
61 I shall deal with each of the disputed areas in turn. However, as a general principle, I do not think the defendant can be said to be acting in bad faith if it does not designate as intended for letting, areas which are occupied by tenants pursuant to some licence arrangement, either formal or informal.
62 The defendant appears to have adopted a somewhat laissez faire attitude towards its tenants' activities. Mr Poland said "I try to be a little bit flexible for tenants" (TS 322); although he has not tolerated all that the tenants have done by way of modification to their respective premises (TS 313 - 314). However, if that is the way the defendant chooses to run
(Page 13)
- its business, I do not think it open to the plaintiff to complain: nor do I think such an attitude amounts to bad faith.
63 The defendant's failure to designate lettable areas has not resulted in advantage to itself at the plaintiff's expense: see TS 303. This is a consideration which is often compelling in a defendant's favour where bad faith is alleged, at least where the advantage has not been gained as a result of legitimate commercial activity: see, generally, the discussion in Cheshire & Fifoot's Law of Contract, Australian Edition, [10.44] - [10.46].
64 The plaintiff relies on the fact that the defendant has designated as lettable areas, six stalls set up on the ground floor of the defendant's building. Mr McLean describes them as "shops inside metal containers" (exhibit 9, par 16). However, although the stalls were established in 1999, they were not designated until 2002. The defendant now accepts that they should have been designated as from 1999.
65 In my view, however, the stalls are in a category of their own. I accept Mr Poland's evidence that the stalls were built by him, for the defendant: that they have a power supply and that they are in a part of the building which it is open to the defendant to lease. They are in a "protected area", which I take to mean something other than a common area (TS 288).
66 It was suggested to Mr Poland in cross-examination that the defendant's failure to designate outdoor areas used in conjunction with the Fins and Sharky's cafes was for the purpose of advantaging his friend Michael Holtham, who had been a director of the defendant and of the companies which operated Fins and Sharky's. Mr Poland denied there was any such intention (TS 331). I accept his evidence.
67 Against that background, I turn to consider each of the disputed areas.
1 The Quay Café
68 From the pleadings, it is common ground that the lettable area of the Quay Café (shops 53 and 54 in the complex) was 111.14m2 from 1 December 1997 to 31 July 1998. That is the floor area of the shop premises (exhibit 1, page 283). The plaintiff contends that the area which should have been designated for letting increased to 372m2 on 1 August 1998, and remained at that area until 1 November 2000 when it increased to 422m2.
(Page 14)
69 The defendant contends that the lettable area remained at 111.14m2 from 1 August 1998, until 20 September 2004 and then increased to 372m2.
70 The defendant entered into an agreement with the Quay Café proprietor on 1 August 1998 whereby an exclusive licence was granted for the use of an Exclusive Common Area of 150m2 to the north of the premises, on the basis that no rent would be paid, nor any contribution to variable outgoings made in respect of that area (exhibit 1, page 280).
71 It was a further term of the licence that the defendant could at any time, and at its sole discretion and cost, redevelop the exclusive licence area by erecting a canopy structure to match existing canopies. If such development was carried out, the licence would terminate automatically but the proprietor of the Quay Café would then be obliged to take a lease of the area and pay rent and other charges (exhibit 1, pages 281 - 282).
72 I accept that in granting an exclusive licence to occupy part of the common area, the defendant has acted inconsistently with Mr Poland's assertion that such areas were to remain common. However, for reasons to which I shall refer below, the exclusive licence area seems always to have been bounded by low limestone walls which tend to reduce its common utility.
73 Whether or not the defendant was entitled to grant an exclusive licence of part of a common area, I can see the commercial benefit to the defendant in entering into that agreement. A licence is not the same as a lease: and the agreement gave the defendant the flexibility it needed in order to carry out the development at a convenient time.
74 Some development was carried out subsequently, at a cost of approximately $100,000. Then, on or about 21 September 2004, the defendant let an area of 145m2 to the proprietor of the Quay Café (exhibit 1, page 420) with effect from 1 September 2004 (exhibit 11, par 31). As I understand it, this was the area the subject of the previous licence agreement. The area of 145m2 results from a more accurate measurement.
75 The exclusive licence area was separated from the original premises by a strip of 90m2 in area, which seems to have been added to the leased premises when the licence was granted (exhibit 1, pages 284 - 285).
(Page 15)
76 Previously, on 1 November 2000, the defendant leased a further 50m2 to the proprietor of the Quay Café. This was originally an outdoor common area, but was enclosed so as to create an extension to the kitchen.
77 The outdoor areas associated with the Quay Café have always been bounded (at least partially) by low limestone walls. I accept Mr Poland's evidence that the defendant has made some changes to the walls over the years. It is not possible to be specific because Mr Poland's evidence was somewhat vague. However, as I understand it, various parts of the walls have been increased in height by the addition of another course, some capping has been carried out and some flower beds might have been replaced by walls. Mr Poland accepted that the alignment of the walls had not changed (TS 305 - 306).
78 This is consistent with Mr McLean's evidence, which I accept, that the area occupied by the Quay Café has not changed. However, that does not alter the fact that the defendant did not intend to let the area of 145 - 150m2 until it did so in September 2004. In my view, that was a legitimate position for the defendant to adopt.
79 On the basis of the areas referred to above, I find that the areas occupied by the Quay Café which the defendant was obliged to designate as intended for letting are as follows:
from 1 December 1997 - 31 July 1998: 111.14m2
from 1 August 1998 - 31 October 2000: 201.14m2 (227m2)
from 1 November 2000 - 31 August 2004: 251.14m2 (277m2)
from 1 September 2004 - 30 June 2005: 401.14m2 (422m2).
2 Fins Restaurant (Shop 51)
81 The history of the leases relating to the premises occupied by Fins Restaurant is set out in Mr Poland's evidence-in-chief (exhibit 11, pars 21 - 28). The evidence was not challenged and I accept it. In summary, the evidence is as follows.
82 The proprietor of Fins Restaurant was Palmland Investments Pty Ltd ("Palmland"). It took a lease of shop 51 with effect from on or about
(Page 16)
- 15 December 1997 (exhibit 1, page 129). The area of the leased premises was determined by Giudice Surveys on 23 May 2005 to have been 557.53m2.
83 This area was made up of 436.65m2 in the building itself, and 120.88m2 under tensile canopies erected adjacent to it (exhibit 9, appendix 18).
84 The Palmland lease contained an option to lease an additional area of approximately 75m2 "for the purpose of alfresco dining". The actual area is 83.33m2, as determined by survey (exhibit 9, appendix 18). Palmland did not exercise the option: and the defendant has never received rent for the additional area, which has not been designated as intended for letting.
85 According to both Mr McLean (exhibit 9, par 47) and Mr Side (exhibit 5, pars 25 - 26 and appendices A and B) Fins has always occupied the additional area.
86 I accept the evidence of Mr McLean and Mr Side that the additional area was occupied by Fins Restaurant.
87 As I understood Mr Poland's evidence, he did not deny the fact of occupancy (TS 319). However, he contended that Palmland could not exercise the option because the defendant was unable to obtain permission to erect canopies over the additional area and enclose it.
88 I accept that the lack of approval to which Mr Poland referred was the basis for the commercial decision not to let the additional area. It might be said that it was an area the defendant intended to let, because it granted an option for that purpose. However, in my view, there was no intention to let until the option was exercised, which it was not.
89 The premises occupied by Fins in shop 51 adjoin shop 52, which was occupied by Sharky's Café. Fins has ceased trading and the party wall between shops 51 and 52 has been moved so as to decrease the area occupied formerly by Fins. There is a dispute about when these events took place. Mr McLean's recollection is that it was on 30 June 2000, while Mr Poland contends that it was on 30 June 2002. There is no document recording the variation. I accept Mr Poland's evidence that the leases were not amended. This was because the defendant did not formally consent to the work being carried out. Mr Poland wanted to be able to revert to the previous configuration (TS 315).
(Page 17)
90 Mr Poland's evidence about the date of the re-configuration appears to have been based on the fact that Palmland assigned its lease to Swancross Corporation Pty Ltd ("Swancross") (exhibit 1, page 347) which in 2002, sub-leased the premises to Zenwest Pty Ltd ("Zenwest") (exhibit 1, page 360). Zenwest has carried on the business known as Core Surf from the re-configured shop 51.
91 However, Mr Poland's evidence is inconsistent with the fact that Palmland assigned its lease to Swancross on 1 January 2000 (exhibit 1, page 356). The deed of assignment was stamped on 18 May 2000.
92 The company search relating to Palmland gives two dates for its cessation date at Sorrento Quay. They are 3 February 2000 and 26 January 2001 (exhibit 14). It is not clear why there are two dates: but both are well before 30 June 2002.
93 I therefore prefer and accept Mr McLean's evidence that the period during which Fins occupied shop 51, ended on 30 June 2000.
94 Mr McLean has prepared an analysis of the areas of shops 51 and 52 before and after the party wall re-alignment (exhibit 9, appendix 19). The analysis is based on areas taken from a retrospective plan prepared by Giudice Surveys on 23 May 2005 ("the Old Plan": exhibit 9, appendix 18) and what Mr McLean refers to as "the New Plan". This was prepared by Giudice Surveys on 9 May 2005. It shows the post-June 2000 configuration of shops 51 and 52. The New Plan is said to be document P158, which is to be found in exhibit 1 at page 432.
95 Mr McLean identifies a discrepancy of 19.68m2 between the Old and New Plans, in respect to the area occupied by Fins.
96 I take the following areas from the two plans:
Old Plan - m2 | New Plan - m2 | |
| 436.65 | 393.00 |
| 120.88 | 71.32 |
| 83.33 | - |
| 5.87 3.13 5.33 | 3.13 5.33 - |
(Page 18)
Old Plan - m2 | New Plan - m2 | |
| 377.98 | 542.51 |
| 115.64 | 147.33 |
| - | 5.87 |
1148.81 | 1168.49 |
97 The difference between these total areas is, as Mr McLean says, 19.68m2.
98 The Old and New Plans were prepared by Matthew Barry Dunn, an articled surveyor employed by Giudice Surveys. Reduced to a smaller size, the plans are included in an expert report prepared by Mr Dunn, in which he described his modus operandi (exhibit 19).
99 In his report, Mr Dunn reconciled the areas occupied formerly by Sharky's and Fins; and those occupied subsequently by Sharky's and Core Surf. The total area (excluding outdoor areas) was 935.51m2 (exhibit 19, final paragraph). The discrepancy therefore lies within the outdoor areas. Excluding garden beds, which are shown as occupying the same areas on both plans, the outdoor areas on the Old Plan are shown as 198.97m2 (being 115.64 + 83.33) while those on the New Plan amount to 218.65m2 (being 147.33 + 71.32). The discrepancy is the 19.68m2 referred to above.
100 The total area of the garden beds on both plans amounts to 14.33m2. However, Mr Dunn was unable to say whether they existed in 2000. Nor was he able to provide the actual dimensions of the garden beds (TS 348 - 349). Mr Dunn's evidence does not, therefore, enable me to make a finding as to the precise areas in issue.
101 However, the discrepancy can be explained by reference to a plan prepared by John Giudice & Associates on 20 October 1998 (exhibit 9, appendix 17). This plan, which Mr McLean refers to as "the Fins Original Plan", shows an outdoor eating area of 234m2. This is very close to the area on the New Plan, with the addition of the garden beds: 232.98m2 (being 218.65 + 14.33).
102 Mr McLean's evidence, which was not challenged, was that he recalled the Fins alfresco area "extended to the northern boundary as shown in the Fins Original Plan" (exhibit 9, par 43).
(Page 19)
103 I accept that evidence. I therefore find that the area occupied by Fins Restaurant was as shown on the Original Plan: a total of 600.50m2. However, for the reasons given above, only the area actually leased was required to be designated, this being 557.53m2.
104 There are two further areas in dispute in relation to Fins. The first is a foyer of 25m2 (exhibit 9, appendix 16). It is Mr McLean's uncontested evidence that this area (which is agreed) was always used by Fins.
105 It appears to me from the plan (appendix 16 above) and Mr Side's photographs (exhibit 5, appendix A) the foyer is part of the building containing the area leased to Palmland. It is therefore contiguous with the area designated as lettable.
106 Despite this, it is Mr Poland's evidence, which I accept, that this "entrance way", was not included in Palmland's lease; that no written or oral agreement was made, and that no rent or variable outgoings have been paid in relation to it. Nor was there any change in this situation when the lease was subsequently assigned to Swancross or the premises sub-leased to Zenwest (exhibit 11, par 29).
107 In these circumstances, the entrance way, or foyer, must be regarded as the subject of a bare licence to respective occupiers. In other words, the defendant did not intend to let the area and was not, therefore, required to designate it as intended for letting.
108 The second area is adjacent to the foyer and consists of a free-standing cool-room occupying an area of 27.38m2.
109 Mr Poland's evidence was that the place where the cool-room stands (and has stood for some six years) "is a bin rubbish area … over grease traps and pipes" (TS 322). He said for that reason, he did not regard the area as lettable. He has allowed the cool-room to remain in place simply to assist his tenants. There has been no need to remove the cool-room to gain access to the services beneath it: but if that became necessary he would have it removed.
110 I accept that evidence. I therefore accept that the defendant has never intended the cool-room area for letting. That is, I think, a reasonable position to take, given the nature of the area.
111 I therefore find the area occupied by Fins Restaurant which the defendant was obliged to designate as intended for letting was 557.53m2.
(Page 20)
3 Sharky's Café (Shop 52)
112 It is agreed between the parties that the area leased to the proprietor of Sharky's Café was 377.98m2 before it expanded into shop 51 and 542.51m2 thereafter. For the reasons given above, I have found that the area increased on 1 July 2000.
113 The plaintiff contends that from 1 July 2000, Sharky's occupied an additional outdoor area of 147.33m2. That is the extent of the outdoor area shown on the New Plan. The outdoor area occupied by Sharky's before the expansion is shown by the Old Plan to have been 115.64m2. I accept the evidence about occupation given by Mr McLean and Mr Kelly.
114 Mr Poland's evidence about the use by Sharky's Café of the outside area is essentially the same as his evidence relating to the Quay Café. He refers to the lease made between the defendant and Fairbrook Holdings Pty Ltd ("Fairbrook"), the proprietor of Sharky's (exhibit 1, page 250). This contained a provision, in cl 9.2, requiring Fairbrook to take a lease of additional area of 75m2, subject to the defendant "obtaining all necessary statutory and other approvals, permits and licences to do so" (exhibit 1, page 251).
115 It is not clear from the plan annexed to the lease, precisely where the area of 75m2 was located (exhibit 1, page 255). However, Mr Poland's evidence is that the defendant does not intend to lease the outdoor area until after the development has been carried out. The reason given by Mr Poland for the defendant adopting this position is "the prohibition in [the defendant's] Head Lease [sic, ground lease] on redeveloping the café common areas" (exhibit 11, par 16 and TS 309).
116 Assuming (without deciding) that Mr Poland's interpretation of cl 15.10 of the ground lease is incorrect, and that it would be open to the defendant to lease areas within that prohibition without first developing them, it is nevertheless Mr Poland's evidence that the defendant does not want to do so. In my view, that is a reasonable position to adopt.
117 I accept Mr Poland's evidence to this effect: and his evidence that the defendant has never charged rent for the outside areas actually occupied by Sharky's Café.
118 As I have said previously, in relation to the Quay Café issue, I do not think it unreasonable for the defendant to decide not to lease an area until it is redeveloped: such a decision does not amount to bad faith.
(Page 21)
119 The cool-room formerly used by Fins was used subsequently by Sharky's. For the reasons given above, I do not regard it as being located in a lettable area.
120 I therefore find that the areas occupied by Sharky's Café which should have been designated as lettable by the defendant were:
377.98m2 up to 30 June 2000
542.51m2 from 1 July 2000.
Core Surf
121 As I have noted above, the Core Surf business has been carried on by Zenwest from the re-configured shop 51. Although Zenwest's sub-lease of the premises commenced in 2002, I have accepted Mr McLean's evidence that the party wall between shops 51 and 52 were moved in 2000.
122 I accept also, Mr McLean's evidence that the Core Surf business was operated for approximately two years by Mr Holtham (who had interests in Fins and Sharky's) before Zenwest's involvement (exhibit 9, par 68). This is supported by the Business Names Extract for Core Surf, which shows its start date at shop 51 to have been 26 April 2000 (exhibit 9, appendix 35).
123 It is common ground that the area of the Core Surf shop is 393m2. This does not include an area at the entrance to the shop, as shown in a photograph taken by Mr McLean (exhibit 9, appendix 41).
124 There is no evidence about the dimensions of this area. However, I infer that Mr McLean has measured it, because he says he has included the area in Sch A to the Statement of Claim, where the plaintiff's contention is that the total lettable area is 408.44m2. Given that the area of the original shop is agreed at 393m2, I take the area in dispute to be 15.44m2, a little under 4 metres square. This seems to accord with Mr McLean's photograph.
125 Neither is there any direct evidence about when this area was enclosed. Again, I understand Mr McLean to have incorporated Sch A into his evidence: and this shows an area of 408.44m2 as from 1 July 2000.
126 In the absence of any evidence to the contrary, I will accept that to be the case.
(Page 22)
127 Mr Poland's evidence, which I accept, is that the defendant has never received rent or any contribution to variable outgoings in respect of this area (exhibit 11, par 29).
128 I accept also Mr Poland's evidence about the way the disputed area came to be enclosed. It was formerly an open area. Walls were then erected by the defendant at right angles to the shopfront. This was done to "allow people to funnel in" to the shop, thereby avoiding grease traps and storage or maintenance areas on each side of the entrance (TS 323).
129 The defendant then received complaints from the owner of Core Surf to the effect that children were congregating in the area: and further, because of the proximity to the street, there was a concern about "ram-raids". In order to avoid these problems, the Core Surf owner had a bollard installed in the entrance to the foyer and has erected high gates so that the area can be closed.
130 As appears from Mr McLean's photograph, a display cabinet has been fixed to one of the walls: and a rack of clothes has been placed in the area.
131 Mr Poland said the defendant had not consented to the erection of the gates, but had not required their removal, because he had recognised the problem. He felt the Core Surf owner should be permitted to provide itself with security.
132 In my view, the inference to be drawn from these circumstances is that the defendant has granted a bare licence to Core Surf to occupy the disputed area. Given that the defendant has merely acquiesced in the installation of the gates, and the display cabinet, I discern no intention to let the area. The owner of Core Surf could no doubt be required to remove the gates and the display cabinet. However, I do not think it could be compelled to take a lease of the area. That being so, I do not think the defendant was under any obligation to designate the area as lettable.
133 The plaintiff contends that it is anomalous for its foyer and that relating to the Bar 120 premises to have been designated as lettable, but not the Core Surf "foyer". I do not accept that to be so. As I understand it, the plaintiff's and Bar 120's foyers form part of their respective leased premises. Their circumstances are therefore quite different.
(Page 23)
The plaintiff's balconies
134 The operative part of the plaintiff's lease demises to it "the Premises": cl 2 (exhibit 1, page 76). As I have noted above, the term "Premises" is defined by reference to the plan in item 2 of the Schedule: but no such plan was. However, included in the definition is the following:
"(a) the internal finished surface of the permanent walls;
(b) where exterior windows are double glazed, the interior glazing and the area between the interior and exterior glazing;
(c) the internal finished surface of interior walls or partitions except in the case of inter-tenancy walls or partitions when the facing part of those walls to the centre line is included;
(d) the surface of the floor slabs, whether or not there is a raised floor; and
(e) if there is a suspended ceiling, the upper surface of the suspended ceiling, or if there is no suspended ceiling, the lower surface of the ceiling slab or roof;
but excluding:
(f) if the exterior windows are double glazed, the exterior glazing; and
(g) if the exterior windows are not double glazed, the exterior windows;"
135 This suggests an intention that the premises should not extend beyond the original exterior windows: and hence, beyond the original exterior walls.
136 When the lease was granted, the balconies to the north and south of the premises were open. Consistently with the above intention the "Floor Area of the Premises" was defined so as:
"not to include the area of the North and South balconies adjoining the Premises" (exhibit 1, page 71).
(Page 24)
137 Thus, not only were the balconies beyond the external walls, they were said to be "adjoining the Premises". The implication is, therefore, that the balconies were not part of "the Premises".
138 Further, by cl 10.5 of the lease, the plaintiff was granted a licence for the term of the lease to use the balconies on the same terms and conditions as applicable to "the Premises", but without any payment of rent.
139 The balconies have now been enclosed. I accept Mr McLean's evidence that the plaintiff "uses the balconies as part of its total floor area for the day to day conduct of its business" (exhibit 9, par 80). On that basis, the plaintiff contends that the balconies should have been designated by the defendant as being intended for letting.
140 I do not accept that to be so. As appears from the definitions set out above, the parties did not intend that the balconies would form part of the demised premises. They intended that for the term of the lease, the balconies would be the subject of a licence, not a lease. The defendant was therefore under no obligation to designate the balconies as being intended for letting.
Core Kids/Candy Cow (Shop 50)
141 The plaintiff contends that the defendant has understated the area of shop 50 which it has designated as lettable. The dispute has arisen from the fact that the size of the shop, originally 77m2, was increased by the enclosure of a storage area at the rear (exhibit 9, par 86 and appendix 45).
142 Mr Poland's evidence is that the disputed area was enclosed by the then lessee of shop 51 without the defendant's consent, albeit without objection. The lessee, Fairbrook, subsequently assigned its lease to Zenwest. The lease was surrendered with effect from 16 October 2005.
143 The defendant then carried out works to the premises, at a cost of some $4132, which resulted in an increase in area to 90.55m2 (exhibit 11, pars 32 - 36 and appendix GDP 4).
144 The enclosed shop has since been let to Manganot Pty Ltd ("Manganot"), with effect from 16 October 2005 (exhibit 11, appendix GDP 6).
145 Mr Poland's evidence was that the defendant did not receive any rent, nor charge any variable outgoings in respect to the disputed area, and did not designate it as intended for letting until shop 50 was leased to Manganot.
(Page 25)
146 This evidence was not challenged, and I accept it. I therefore find that the area of shop 50 which the defendant was obliged to designate as intended for letting was 77m2 until 15 October 2005 and 90.55m2 from 16 October 2005.
Quay Café storeroom
147 There is a small storage shed at the rear of the café premises, in what appears to be a utility or rubbish bin area adjacent to a loading bay (exhibit 9, pars 89 - 90, appendix 48). The shed, which is used in conjunction with the Quay Café, has been created by erecting a corrugated iron wall and door so as to enclose a corner formed by existing brick walls. The area of the shed is 9m2. I accept the evidence of Sergio Anzolin that the shed has been used in conjunction with the Quay Café at least since 1992.
148 The plaintiff contends that this area should have been designated by the defendant as intended for letting.
149 Mr Poland's evidence, which I accept, is that the defendant permits the lessee of the Quay Café to use the shed, but that there is no agreement either written or oral, relating to this arrangement.
150 This is, therefore, another example of a bare licence having come into existence. That being so, I do not consider the defendant was required to designate the shed as intended for letting.
Sharky's storeroom
151 I understand this to be the area under the stairs within the plaintiff's premises. I have referred to it earlier in these reasons, in holding that the stairs were demised to the plaintiff. I accept Mr McLean's evidence that the area in question is 11.2m2 (exhibit 9, par 93).
152 Mr Poland's evidence, which I accept, is that the defendant permits the stairwell storage area to be used by the lessee of Sharky's, but that there is no agreement either written or oral, relating to these arrangements. This is, therefore, a further example of a bare licence having come into existence. The defendant is not required to designate the area as intended for letting because it does not have that intention. Again, that seems to me to be a reasonable position for the defendant to adopt, given the small area involved.
(Page 26)
Swancross outdoor area
153 This is the area of 71.32m2 to which I referred when attempting to reconcile the outdoor areas occupied by Sharky's and Fins.
154 The plaintiff contends that the area should have been included by the defendant in that designated as intended for letting to Swancross; that is, as part of shop 51 occupied by Core Surf (exhibit 9, pars 95 - 96).
155 As noted above, Swancross sub-leased the re-configured shop 51 to Zenwest. There is a covenant in cl 9(a) of the sub-lease in the following terms:
"The Lessor [Swancross] covenants with the Lessee [Zenwest] not to place any kiosks, seats, tables, chairs or other structures extending 5 metres from any point along the frontage to the main entrance to or shop front of the Sub-Lease Premises or in any position where it obstructs ingress to or egress from the Sub-Lease Premises or it impedes the pedestrian flow but does not include any area directly in front of any adjoining shop." (exhibit 1, page 361)
156 It was put to Mr Poland in cross-examination that the purpose of the covenant was to confirm to Zenwest that although Swancross was not permitted to place "kiosks, seats, tables, chairs (etc)" for a distance of 5 metres in front of shop 51, it could do so beyond that distance.
157 Mr Poland denied that was so. He said that the defendant (which is a party to the sub-lease) consented to the inclusion of the covenant, apparently at the request of Zenwest, on the basis that "it doesn't hurt to have it in there if it keeps them happy …" However, he emphasised that it was not a matter for Swancross: the defendant had "not given up the right to clean that area, garden it and control it" (TS 323).
158 In his evidence-in-chief, Mr Poland said that the defendant had never received rent for this area, which he described as an entrance way to Core Surf's premises (exhibit 11, par 29). I accept Mr Poland's evidence.
159 The fact that the defendant wishes to retain control of the area in question is inconsistent with an intention to let it. It has not been demonstrated that the defendant has anything other than a commercial reason for maintaining that position.
160 In all these circumstances, I consider that the defendant was not required to designate the area as intended for letting.
(Page 27)
The Promotional Fund
161 By cl 6.2 of the lease, the plaintiff was required to contribute to a Promotional Fund for the first lease year, the sum of $5,432.70 or $3.90 per square metre of the Floor Area of the Premises "whichever is the greater amount". It will be recalled that "the Premises" was defined to mean that part of the Building specified in item 2 of the Schedule: and item 2 referred to the area as being outlined in red on the annexed plan, and having an area of approximately 1393m2.
162 The product of 1393 and 3.90 is $5,432.70.
163 In par 20 of its Statement of Claim, the plaintiff contends that the parties entered into the lease under a mutual mistake of fact: namely that the Floor Area of the Premises was not less than 1393m2. The plaintiff goes on to allege that the Floor Area of the Premises was not 1393m2, but a substantially lesser area.
164 On this basis, the plaintiff seeks rectification of the lease to reflect the true agreement, which is said to be that its contribution to the Promotional Fund would be $3.90 per square metre in the first lease year.
165 Mr Side, in his evidence-in-chief, said that in the negotiations between the parties, before the lease was executed, the draft documents specified that the area of the premises was 1393m2. However, he said he accepted the accuracy of that area on the basis that "the lease provided that the landlord would remeasure the area after the tenancy commenced".
166 This evidence accords with Mr Poland's recollection. He was asked in cross-examination whether he was aware that the lease referred to the plaintiff's premises having an area of approximately 1393m2. He said:
"Now I do because I've read it now, but if you said to me a year ago or two years ago how many square metres I wouldn't have had a clue, because I thought it had to be measured after …" (TS 332)
167 The need for remeasurement arose from an agreement between the parties before they entered into the lease that the then existing entry would be relocated. It was originally on the eastern side of the building. However, a new entrance and foyer was constructed on the southern side. This, I think, explains why the Floor Area of the Premises was defined as meaning the floor area "as certified by a licensed surveyor …": and
(Page 28)
- perhaps, why there was no plan annexed to the lease. At the time, it might not have been possible to produce such a plan.
168 In cross-examination, Mr Side accepted that Mr Poland had never told him that the area to be leased by the plaintiff was 1393m2. Mr Side said, however, "it was always implied that that was the area" (TS 225). He said he was "pretty certain" that the figure of 1393m2 was mentioned and that "it would have been Peter Duffield" (TS 225).
169 Mr Side went on to say that he did not have a specific memory of Mr Duffield making that statement although he said he was "a hundred percent certain that it was stated but I just can't give you all the details" (TS 226).
170 Mr Duffield gave evidence. As Mr Side said, Mr Duffield's evidence was that he had conducted the majority of the negotiations between Mr Poland and Mr Side in relation to the relocation of the plaintiff's premises: that is, prior to the grant of the lease (exhibit 20, par 3). However, Mr Duffield did not recall specific discussions about the Promotional Fund which, he said, was "negligible or a small point" in the scope of the negotiations (TS 361). I took Mr Duffield to mean that the amount of the plaintiff's contribution to the Promotional Fund was small, compared with the rent payable from 1 December 2001 which was at the rate of $139,300 per annum.
171 I do not doubt Mr Side's evidence that the area of 1393m2 was mentioned in the negotiations: it was, after all, the figure which was incorporated into the lease. However, the evidence does not lead to the conclusion that the agreement between the parties was that the plaintiff would contribute an amount of $3.90 per square metre to the Promotional Fund. As I have said, that was not Mr Side's evidence. It may have been an assumption, but the lease referred to the area as being approximate: and neither party knew what the area would be until it had been remeasured and certified by a licensed surveyor.
172 In these circumstances, the plaintiff's claim for rectification is not made out.
The outcome of these proceedings
173 The plaintiff claims it has overpaid the defendant an amount of $263,247.69 down to 30 June 2005. It claims that the overpayment was made pursuant to mistakes of fact and that:
(Page 29)
"• it would be unconscientious for the defendant to retain and not repay such moneys; or
• alternatively, the defendant holds those moneys as trustee for the plaintiff; or
• alternatively, the moneys so paid are repayable by the defendant to the plaintiff as moneys of the plaintiff had and received by the defendant." (Statement of Claim, par 16)
174 It is not necessary for me to determine the legal basis for any such overpayment. That is because Mr Poland, speaking for the defendant, accepted that if moneys had been overpaid, they should be refunded with interest (TS 340).
175 Although this is, essentially, a money claim, I have not been asked to calculate the amounts which should have been paid by the plaintiff to the defendant in respect of rent and contributions to variable outgoings. I have been asked only to make findings as to the areas occupied by the plaintiff and the various tenants referred to above, and the relevant periods of occupation. On the basis of those findings, the financial calculations will be performed by the parties and their representatives.
176 I propose, therefore, to publish these reasons on an interim basis and then leave it to the parties to bring in a minute of order which gives effect to them. If my reasons do not permit the final calculations to be performed, it will be open to the parties to re-list the matter for further consideration.
3
9
0