Elike Pty Limited v Tony Elias & Ors [2008] NSWDC 329

New South Wales District Court

CITATION: Elike Pty Limited v Tony Elias & Ors [2008] NSWDC 329

HEARING DATE(S): 24/11/08 - 27/11/08 and 1/12/08

JUDGMENT DATE: 1 December 2008

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

DECISION: See paragraphs 62-66 of Judgment

CATCHWORDS: Agreement for lease of unit - Term requiring creation of exclusive use by-law for use of outdoor area as coffee shop - Consideration of whether term was warranty only - Aspects of termination - Claims for reliance damages and expectation losses.

Strata Schemes (Freehold Development) Act 1973 LEGISLATION CITED: Strata Schemes Management Act 1996 Civil Procedure Act 2005

North Wind Pty Ltd v Proprietors SP 3143 (1982) 2 NSW LR 809 White v Betalli (2006) NSW SC 537 CASES CITED: Luna Park (NSW) Limited v Tramways Advertising Pty Limited (1938) 61 CLR 286 Sargent v ASL Development (1974) 131 CLR 634 Immer (No. 145) Pty Limited v Uniting Church of Australia Property Trust (NSW) (1993) 182 CLR 2 The Commonwealth of Australia v Amann Aviation Pty Limited (1991) 174 CLR 64

PARTIES: Elike Pty Limited (Plaintiff) Tony Elias (1st Defendant) & Ors

FILE NUMBER(S): 4712/06

COUNSEL: S Climpson (Plaintiff) B Debuse (Defendants)

JUDGMENT

1 These proceedings arise out of a lease entered into between the plaintiff as lessee and the defendants as lessor commencing on 2 June 2003 for a term of five years with an option to renew for a further term of five years. The lease can be found at page 110 of Volume 1 of the Plaintiff's tender bundle (exhibit A).