Goldfish Bar and Restaurant Pty Ltd v Roche Group Pty Ltd [2022] NSWSC 1481

Supreme Court New South Wales

Medium Neutral Citation: Goldfish Bar and Restaurant Pty Ltd v Roche Group Pty Ltd [2022] NSWSC 1481 Hearing dates: 20, 21 June, 18, 24 August 2022 Date of orders: 18 August 2022 Decision date: 31 October 2022 Jurisdiction: Equity - Expedition List Before: Parker J Decision: See [80] Catchwords: LEASES AND TENANCIES – commercial lease – construction – right of tenant to quiet enjoyment over leased part of property – reservations – right of landlord to use or grant rights of occupation to the property for "any purpose" – property used for music concerts and events – right of landlord to hold "concerts or other events" – access to the premises restricted – meaning of "year" – calendar year – reasonable notice for cancelling events – reasonable notice for notifying events Cases Cited: Lioncrest Capital Holdings Pty Ltd v O'Shaughnessy [2022] NSWSC 1410 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd (2017) 94 NSWLR 108 Category: Principal judgment Parties: Goldfish Bar and Restaurant Pty Limited (Plaintiff) Roche Group Pty Limited (Defendant) Representation: Counsel: A Harding SC/H Fielder (Plaintiff) B Lloyd (Defendant)

Solicitors: Lionheart Lawyers (Plaintiff) Herro Solicitors (Defendant) File Number(s): 2021/351229 Publication restriction: Nil

Judgment 1. These proceedings arise out of a dispute about the interpretation of a commercial lease. The lease contains the usual provision granting the tenant rights of quiet enjoyment over the leased part of the property, and also certain common areas, such as carparks. Those rights of quiet enjoyment are subject to certain reservations which entitle the landlord to use the common areas and to restrict access to the leased areas. The dispute centres on the extent of those reservations. 2. The lease which is the subject of the proceedings is a registered lease for a term of five and a half years, beginning in October 2020 and ending in April 2026. The plaintiff, Goldfish Bar and Restaurant Pty Limited ("GBR") is the tenant. The defendant, Roche Group Pty Limited ("RG") is the landlord. 3. GBR sought injunctions restraining RG from restricting access to the leased premises, and from certain forms of use of the common areas, on the ground that this was not justified on the proper construction of the reservations in the lease. An order was made for the determination of GBR's claims for injunctive relief in advance of other issues in the proceedings, on an expedited basis. Any consequential claims for damages are to be dealt with at a later point. 4. The separate hearing took place on 20 and 21 June. The hearing was followed by negotiations between the parties which limited, but did not, in the end, eliminate, the dispute. By agreement between the parties, supplementary evidence and submissions were filed, ending on 15 August. In view of the urgency of the proceedings, on 18 August, I announced my conclusions and made orders giving effect to them. This judgment sets out the reasons for those conclusions.