Nguyen v. Perri & Anor. [1999] NSWSC 930

New South Wales Supreme Court CITATION : Nguyen v. Perri & Anor. [1999] NSWSC 930 revised - 16/09/99 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : No. 5158 of 1998 HEARING DATE(S) : 30 and 31 August 1999 JUDGMENT DATE : 16 September 1999

Thi Mi Nguyen (Plaintiff) PARTIES : Filippo Perri (First Defendant) Giuseppina Perri (Second Defendant) JUDGMENT OF : Hodgson CJinEq at 1

COUNSEL : Mr. C. Freeman for Plaintiff Mr. C. Harris for Defendants SOLICITORS : Than & Co., Bankstown (Plaintiff) Willis & Bowring, Miranda (Defendants) CATCHWORDS : LANDLORD AND TENANT - ANCILLARY RIGHTS DECISION : See page 18 of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Thursday 16th September 1999

NO. 5158 OF 1998 NGUYEN V. PERRI & ANOR.

JUDGMENT

1 The plaintiff is the lessee of a hot bread shop from the defendants Mr. and Mrs. Perri under an agreement for lease for five years from 14th October 1998, arising from the exercise of an option under an earlier lease. In these proceedings, the plaintiff seeks declarations as to her entitlement to use a passageway adjacent to the shop, a yard at the rear of the shop, and a coolroom in that yard, and also consequential relief. She also seeks relief concerning a roller-shutter door, and $3,531.39 paid in respect of garbage removal and a grease trap. There is now no issue between the parties concerning the coolroom and the roller-shutter door.

OUTLINE OF FACTS 2 I will commence with an outline of the facts which are not substantially in dispute. 3 Prior to early 1992, the defendants conducted a bakery business in the subject shop, and also owned the property on which that shop and four other shops were erected. 4 On 19th March 1992, the plaintiff entered into a lease of this shop from the defendants for one year, with an option for a further three years. It appears that she also purchased bakery machinery and equipment from the defendants for $90,000.00 or thereabouts. 5 The lease provided for a minimum annual rent of $41,600.00. The permitted use of the premises, set out in No.15 of the Lease Schedule, was "hot bread shop". Other relevant terms of the lease were cls.7(1) and 7(4)(a), 8(1) and 8(5), 12, 17, 20 and 24. These provisions were in the following terms: 7. Lessee's Percentage Outgoings The Lessee hereby covenants with the Lessor as follows:- (1) The Lessee shall pay to the Lessor additional rent at the rate of the percentage set out in number 12 of the Lease Schedule of the amount of all outgoings of the Property in respect of each lease year. ...