JOBNAME: No Job Name PAGE: 1 SESS: 1 OUTPUT: Tue Feb 26 12:30:04 2008 /reports/caseml]/case/urj/9708246 WILCOX v RICHARDSON SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL 5 MEAGHER JA, HANDLEY JA and POWELL JA 1 September 1997 [1997] NSWCA 343 Meagher JA, Handley JA and Powell JA. 1. Declare that pursuant to sublease registered number 1688535 dated 31 March 1993 between John Herbert Richardson and Judith Dean Richardson as sublessors and Ray Joseph Richardson and Margaret Ann Smith as sublessees (the sublease), there were granted to the said Ray Joseph Richardson and Margaret Ann Smith, as appurtenant to the land described in declaration 1 (i) made in the Equity Division on 12 September 1996 (the servery): (a) an easement for the use of the toilet off the verandah near its north western corner, by the sublessees, their servants, agents and customers, in common withthe sublessors, and those claiming through or under them. (b) easements for the exclusive use by the sublessees, their servants and agents of — (i) the area on the ground floor marked 'Oil Drum Storage under Catwalk' on page | of the annexed plan for storing drums of cooking oil; (ii) the area on the eastern side of the ground floor formerly occupied by a large ice box, marked 'Ice Box' on page | of the plan; (iii) bay 1 on the first floor, as marked on page 2 of the plan, for the storage of refrigerators, stock and dry goods; (iv) bay 2 on the first floor, as marked on page 2 of the plan, for the storage of stock and dry goods;(v) part of the western verandah marked 'Gas Tank' on page | of the plan for the storage of a large gas bottle; (vi) pipes in the locations existing in January 1991 between the gas bottle and the servery; (vii) the electrical wiring, water and waste pipes to and from the servery and to and from the hot water heater, exhaust fan, cool room motors and freezers on the first floor and to the external lights in that part of the verandah described in declaration 1 (ii) made in the Equity Division; (viii) the conduit connecting the hood above the main cookers in the servery to the roof. (c) easements for the shared use by the sublessees, their servants and agents, with the sublessors and those claiming through or under them, of: (i) the staff toilet marked on page | of the plan located in the north western corner of the ground floor; JOBNAME: No Job Name PAGE: 2 SESS: 1 OUTPUT: Tue Feb 26 12:30:04 2008 /reports/caseml]/case/urj/9708246 UNREPORTED JUDGMENTS 2. 3. (ii) the storeroom at the northern end of the building shown on page | of the plan, for storing stock and dry goods and for cutting lemons, buttering bread rolls and the preparation of batters; (iii) the sink (and associated plumbing), filleting boards and filleting bay on the eastern side of the building downstairs from the ground floor, marked on page 1 of the plan; (iv) bay 3 on the first floor, as marked on page 2 of the plan, for the storage of stock, equipment and dry goods; (v) the catwalk on the first floor, as marked on page 2 of the plan;(vi) the southern end of the first floor adjacent to bay 3 for the location and operation of a hot water heater, the coolroom motors and an exhaust fan as shown on page 2 of the plan; (vii) the northern side of the coolroom on the ground floor not included in the servery; (viii) the electrical power boards as marked on page | of the plan; (ix) that section of the western verandah not included in declaration 1 (ii) made in the Equity Division extending to the toilet referred to in order 1 (a). (x) the coolroom control panel affixed to the northern wall of the coolroom as marked on page | of the plan; (d) easements for reasonable access to and from the said areas for the sublessees,their servants and agents, and without limiting the foregoing — (i) the right of access by the internal door to and from the servery for the movement of persons and goods; (ii) the right of access to and from the first floor by the stairs for the movement of persons and goods; (iii) the right of access to and from the external door on the western side of the building for the movement of persons and goods. subject to the right of the sublessors to install and make exclusive use of fixtures and fittings in the open areas north of the coolroom shown in the plan, provided reasonable routes and reasonable areas remain for the movement of persons and goods pursuant to the sublessees" rights of access. Declare that the plaintiffs, as sublessees for the time being, are entitled to the benefit of the said easements and to enforce the same. Order that within 21 days the second defendants do all such things as may be necessary to restore the building on the land the subject of Computer Folio 276/728098 to a condition which will allow the plaintiffs to enjoy the benefit of the said easements but without limiting the foregoing the second defendants shall within such time: (i) remove the cool room motors from the western verandah, make good the area from which they are removed, return them to their previous location on the first floor, and make all necessary reconnections; URJ WILCOX v RICHARDSON (Meagher JA, Handley JA and Powell JA) 3 (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) remove the hot water heater from the southern verandah, make good the area from which it is removed, return it to its previous location on the first floor, and make all necessary reconnections; return the gas bottle to the western verandah, make good the area from whichit is removed, and make all necessary reconnections; remove the eastern half of the metal sheeting partition in the coolroom and install a mesh partition dividing the northern section of the coolroom in half to make the eastern half available for the exclusive use of the plaintiffs, and the western half available for the exclusive use of the second defendants; replace the internal door which previously gave access to and from the servery and remove any barriers to access through such door; install flooring in the 'Ice Box' area, the passageway to the servery and in the oil drum storage area shown on page | of the plan; restore the filleting bay including sink and associated plumbing, waterproof walls, filleting boards and stairs leading thereto; in the outside toilet renew pipe to hand basin to allow free flow of water, replacetop of cistern, and ensure that the plaintiffs have keys to the door to such toilet; restore oil drum storage compartment; return and install Ice Box; in the northern storeroom: (a) restore southern wall incorporating swinging doors; (b) remove existing exhaust hood, cookers, large industrial sink, counter/bench and other plant and equipment existing therein so as to restore the storeroom to the general condition shown in the photographs Annexures E and F in Appeal Book Vol 1 pages 84-5 and the photograph Annexure D to the affidavit of Elizabeth Maree Humphries sworn 17/11/95. (c) permit the plaintiffs to erect shelves on the northern, southern and western walls inthe same positions and of similar sizes and dimensions to the shelves which were in place as at 12 September 1996; (d) allow space on the floor at the eastern end for the placement by the plaintiffs of three 70 litre garbage bins for storing flour; (e) allow space on the floor of the northern side for the placement by the plaintiffs of a 4 drawer filing cabinet; (f) allow space on the floor for the placement by the plaintiffs of one table not larger than 1500 millimetres long and 600 millimetres wide; provide the plaintiffs with keys to the external doors on the western side of the building. 4. Order that the second defendants by themselves, their servants or agents, be restrained during the subsistence of sublease 1688535,or any renewal or continuation thereof, from substantially interfering with the exercise or enjoyment of the plaintiffs" easements or any of them. 4 UNREPORTED JUDGMENTS 5. Order a referral to a Master at the plaintiffs" risk as to costs to inquire as to the amount of damage suffered by the plaintiffs on and after 12 September 1996 as a result of the interference by the first and second defendants with the exercise or enjoyment of the plaintiffs" easements 5 and to certify the result of such enquiry. Further costs and further consideration reserved to the Equity Division. Previous inconsistent costs orders revoked. Appellants to pay costs of the third respondents of the appeal. First and second respondents to pay the costs of the appellants of the 10 appeal. oo ND Orders accordingly.