CHARLOTTE PASS VILLAGE PTY LTD v STILLWELL LODGE PTY LTD [1991] NSWCA 52

CHARLOTTE PASS VILLAGE PTY LTD v STILLWELL LODGE PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and CLARKE JJA 8 February 1991, 19 March 1991

[1991] NSWCA 52

CONSTRUCTION OF LEASES OF SKI LODGES — LIABILITY TO CONTRIBUTE TO COST OF SEWERAGE WORK

Appeal from Equity Division — Construction of leases of ski lodges — Lessees' liability to contribute to cost of work done on sewerage system — apportionment of several liability between lodges — Basis of apportionment.

ORDER Short Minutes to give effect to judgment.

Samuels JA I agree with Mahoney JA.

Mahoney JA On 26 April 1977 Charlotte Pass Village Pty Ltd ("CPV") took a lease from the Crown of land in the Charlotte Pass area. The contemplation was that the land would be used for the development of a ski area.

On 16 February 1981 CPV granted a sublease of part of that land to Stillwell Lodge Pty Ltd ("Stillwell"). The contemplation was that Stillwell would erect a ski lodge on the land subleased: the sublease obliged it so to do. This sublease was one of a number of such subleases, all of which were relevantly in the same form.

Health and environmental considerations required that the ski area have an adequate sewerage system. It was the contemplation of the parties, as appearing from the documents, that such a system would be provided by CPV. It was accordingly appropriate that stipulations be made as to the provision of the sewerage system and for the method of payment for the installation and the ongoing operation of it. Provision was made in the various subleases for this purpose.

Recently, CPV has incurred substantial expense in updating and extending the sewerage system. The present proceeding has been brought to determine how the burden of that expenditure is to be borne. Needham J held, in substance, that it is to be borne by CPV and not by the individual lessees. CPV has appealed to this Court against his Honour's judgment.