Prasad & Anor -v- Fairfield City Council [2001] NSWADT 28

CITATION: Prasad & Anor -v- Fairfield City Council [2001] NSWADT 28 DIVISION: Retail Leases Division APPLICANTS Daniel Prasad PARTIES: Stephen Walker RESPONDENT Fairfield City Council FILE NUMBER: 005020 28/08/2000 HEARING DATES: 29/08/2000 30/08/2000 01/09/2000 SUBMISSIONS CLOSED: 12/19/2000 DATE OF DECISION: 02/21/2001

BEFORE: Fox R - Judicial Member APPLICATION: Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money - Claim for relief against forfeiture MATTER FOR DECISION: Principal matter LEGISLATION CITED : Retail Leases Act 1994 Aussie Traveller Pty Ltd v Marklea Pty Limited (1997) QCA 2 O'Keefe v Williams (1910) 11 CLR 171 CASES CITED: High Trees House case [1947] KB 130 Waltons v Maher (1988) 164 CLR 386 Gordon v Lidcombe Investment Pty Limited [1966] 2 NSWR 9 Bocchina v Gorn Management 515A. 2D 1197(MD). 1986 APPLICANT REPRESENTATION: A Macpherson, solicitor RESPONDENT M Jenkins, barrister ORDERS: 1. Occupancy by Applicants of the Respondent's premises known as shop 4 the Abbotsbury Community Shopping Centre is governed by Lease for a term to end in April 2002, on the conditions and covenants contained in the Lease entered into between the Respondent and the Youssef brothers in 1994, as varied by Deed executed between the Applicants and the Respondent in November 1997. ; 2. Application by Applicant for relief against forfeiture granted.; 3. Pursuant to Section 72(1)(c)(iv) Respondent ordered to submit Lease document to the Applicants no later than 23 March 2001, all parties to execute it no later than 27th April 2001.; 4. Respondent to: ; (i) Prevent owner of shop 1 in the Centre from selling hot barbecued chickens or prepared coffee, by 23 March 2001, and if that is not done by that date, then the Applicants are relieved from the obligation to pay rent under their Lease from 23 March 2001 until such time as the Respondent effects such compliance by the occupier of shop 1.; (ii) Take all other action necessary to ensure that occupant of shop 1 trades within the authorised use in the Lease as presently registered on title.; 5. Respondent not to enter into any Lease for any part of the Abbotsbury Community Shopping Centre which would allow such premises to be used for the preparation or sale of take-away foods of any kind, or for a restaurant of any kind selling foods similar to those sold by the Applicants pursuant to the authorised use in the Applicants Lease.