Nichols Global Enterprises Pty Limited -v- Biviano & Anor [2003] NSWADT 134

CITATION: Nichols Global Enterprises Pty Limited -v- Biviano & Anor [2003] NSWADT 134 DIVISION: Retail Leases Division APPLICANT Nichols Global Enterprises Pty Limited PARTIES: RESPONDENTS Angela Biviano Guiseppe Biviano FILE NUMBER: 025069 HEARING DATES: 08/04/2003 SUBMISSIONS CLOSED: 04/08/2003 DATE OF DECISION: 04/08/2003

BEFORE: Fox R - Judicial Member APPLICATION: Jurisdiction MATTER FOR DECISION: Principal matter LEGISLATION CITED : Retail Leases Act 1994 CASES CITED: APPLICANT REPRESENTATION: J Rhodes, solicitor RESPONDENT R Ward, solicitor ORDERS: Application Dismissed

1 In these proceedings the Applicant Lessee alleged a breach of the covenant for Quiet Enjoyment, and sought orders for damages and termination of the Lease. The Respondent Lessor opposed the Application. Eventually the Lessee abandoned the premises, repudiated the Lease by returning the keys and withdrew the Application. The Lessor accepted repudiation and then made application now before me, for costs. 2 The premises, the subject of the Lease are an old warehouse converted for use as a restaurant and car park. The use authorised by the Lease is "Nightclub and Restaurant and Cabaret", there being a noon to 3am restaurant on licence, with an entertainment permit. It is common ground that the liquor licence requires that persons be on the premises with the intention to dine. 3 Although at first blush, such premises may not appear to be a retail shop – they clearly fall within the definition in Section 3 of the Retail Leases Act. Definitions retail shop means premises that: (a) are used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 1 (whether or not in a retail shopping centre), or Included in Schedule 1 are:- "restaurants, cafeterias, coffee lounges and other eating places". 4 The Lease is "of the property described" being two identified parcels of Torrens Title land, defined in the document as "the Land". Further "the Premises" are defined by reference to the street numbers. Both of these definitions include both the building and the car park. 5 The Lease, in 1993, required the Lessee to effect all manner of internal and external building improvements and repairs, and further required the Lessee to "repair surface of the car park". It was accepted for the purposes of argument that the local Council approval for the use of the premises as a restaurant required that there be off street parking encompassing the whole of the car park. 6 In my view all of these factors indicate that both the building and the car park are part of the retail shop. Because of that conclusion, before considering the Respondent's cost application, I asked if the premises fell within the area exclusion of Section 5(a) of the Retail Leases Act:- 5 Certain retail shops excluded from the operation of this Act This Act does not apply to any of the following retail shops: (a) shops that have a lettable area of 1,000 square metres or more, 7 I was shown a survey of the parcels by Jonathan C. Keen & Co, commissioned for the purposes of establishing the Gross Lettable Area Retail (apparently to resolve a previous rent dispute). It showed, in relation to the building: - 1. Measurement of the internal part of the building was complicated by the fact that some areas of the restaurant and the mezzanine floor had a height of less than 1.5 metres, and so were excluded from the calculation of the gross lettable area (and appear not to have been measured). 2. The stairway, although measured, was also noted as excluded. 3. The end result is:- Ground floor gross lettable area (retail) 470 Sq m Mezzanine floor gross lettable area (retail) 104 Sq m Toilets 28 Sq m Stairway 11 Sq m Car park 391 Sq m Air conditioning unit 7 Sq m Garden and planter boxes 24 Sq m TOTAL 1035 Sq m