Heriot Properties (Australia) Pty Ltd v Ezymart Leasing Pty Ltd [2022] NSWCATCD 171

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Heriot Properties (Australia) Pty Ltd v Ezymart Leasing Pty Ltd [2022] NSWCATCD 171 Hearing dates: 22 February 2022; final written submissions filed 19 April 2022 Date of orders: 23 August 2022 Decision date: 23 August 2022 Jurisdiction: Consumer and Commercial Division Before: G Ulman, Senior Member Decision: (1) Pursuant to section 72(1)(c)(iv) of the Retail Leases Act 1994 (Act), the respondent is ordered to: (a) give the applicant, its servants or agents, access to the premises within seven (7) days for the purpose of the applicant: (i) disconnecting the respondent's airconditioning and refrigeration from exhaust vents and any associated materials installed by the respondent in the gyprock wall located in the basement car park of the building; and (ii) restoring the wall affected by the removal of the vents and any associated materials to its original condition; (together "work order") (b) refrain from interfering with or in any way preventing the applicant from carrying out the work order. (2) Pursuant to section 72(1)(a) of the Act, the respondent pay the sum of $40,919.61 to the applicant within fourteen (14) days. (3) In the event a party wishes to make a costs application it must file and serve written submissions within 14 days, any party opposing the application is to file and serve its written submission within a further 14 days, and the Tribunal will make a decision on the papers as permitted by section 50(2) of the Civil and Administrative Tribunal Act 2013 unless persuaded that there should be oral submissions. (4) If after 14 days no written submissions are filed, then there will be no order as to costs. Catchwords: Retail Leases Act 1994 – unauthorised work by lessee - damage to common property – whether the lease permits the lessor to access the premises to comply with a Tribunal order made under the Strata Schemes Management Act 2015 requiring restoration of common property – whether the lease otherwise permits the lessor to access the premises to restore common property - whether lessee is liable for lessor's legal costs incurred in defending proceedings by the owners corporation Legislation Cited: Civil and Administrative Tribunal Act 2013 Retail Leases Act 1994 Strata Schemes Management Act 2015 Cases Cited: Queanbeyan Leagues Club Ltd v Poldune Pty Ltd & Ors [2000] NSWSC 1100 Plant v Meriton Properties Pty Ltd (No. 2) (Costs) [2010] NSWADTAP 20 A & J Verdi Pty Ltd v Uckan (No 2) [2011] NSWADTAP 6 Hellyer Drilling Co v Macdonald Hamilton & Co Pty Ltd (1983) 51 ALR 177 Krimbogiannis v Fallslzcnv (Investments) Pty Ltd [2015] NSWCATCD 155 Texts Cited: Macquarie dictionary Category: Principal judgment Parties: Heriot Properties (Australia) Pty Ltd (Applicant)