Cugg Pty. Ltd. v. Gibo Pty. Ltd. [2001] NSWSC 297

Reported Decision : (2001) 10 BPR 18,641

New South Wales Supreme Court

CITATION : Cugg Pty. Ltd. v. Gibo Pty. Ltd. [2001] NSWSC 297 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4647/99 HEARING DATE(S) : 26, 27 and 28 June 2000, 5 February 2001 JUDGMENT DATE : 20 April 2001

PARTIES : Cugg Pty. Limited - plaintiff Gibo Pty. Limited - defendant JUDGMENT OF : Hodgson CJinEq at 1

Mr. R. Conti QC with Mr. A. Ogborne for plaintiff (2000 hearing) COUNSEL : Mr. M. Slattery QC with Mr. A. Ogborne for plaintiff (2001 hearing) Mr D. Feller for defendant SOLICITORS : Cutler Hughes & Harris, Sydney for plaintiff Richard M. Trayer, Sydney for defendant CATCHWORDS : CONTRACT - Duty of good faith. - LANDLORD AND TENANT - Covenants - Convenant to repair - Covenant to comply with notices - Covenant to pay rates and taxes "in respect of property", where property only part of property on whch rates and land tax levied. - LOCAL GOVERNMENT - Powers of councils - Order that work be done - Validity and effect. LEGISLATION CITED : Environmental Planning & Assessment Act ss.121B, 121H-121R. Graham v. The Markets Hotel Pty. Ltd. (1943) 67 CLR 599 CASES CITED : Haskell v. Marlow (1928) 2 KB 45 Tooth & Co. Ltd. v. Newcastle Developments (1966) 116 CLR 167. DECISION : See end of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Friday 20th April 2001

NO. 4647 OF 1999 CUGG PTY. LIMITED V. GIBO PTY. LIMITED

JUDGMENT 1 On 16th February 1982, the plaintiff Cugg entered into a registered lease No.T122643 with State Rail Authority of New South Wales (which I will call "the SRA"), by which Cugg became lessee, for a term of twenty years commencing 1st January 1981 plus three options of ten years each, over property described as part of the land in Certificate of Title Volume 11864 Folio 66, being premises described in cl.16 of Schedule 2 to the lease. 2 I will set out cl.16 later, but note here that in essence the premises comprise an office building known as Wembley House, in George Street, Sydney, near Central Railway Station. A railway tunnel passes under the building, and part of the building is built over a slab which forms the ceiling of the railway tunnel. The slab, but not the tunnel, is included in Cugg's lease. 3 On 18th January 1995, Deposited Plan No.654926 was created for the stated purpose of identifying the land comprised in Certificate of Title Volume 11864 Folio 66; and on 15th June 1998, Deposited Plan No.876785 was registered, being a subdivision of land in Lot 1 Deposited Plan No.654926 into two lots. Lot 2 in that deposited plan appears to include the land the subject of the lease, and it also includes the railway tunnel. 4 Lot 2 of Deposited Plan No.876785 was transferred by the SRA to the defendant Gibo by Transfer No.5340828R dated 9th October 1998 and registered 4th November 1998, reserving an easement over the tunnel in favour of the SRA. 5 During 1999, disputes developed between Cugg and Gibo, resulting in the commencement of these proceedings on 11th November 1999. The originating process is now an Amended Summons dated 3rd March 2000, and there is an Amended Cross-claim dated 17th February 2000 joining additional parties. 6 On 26th to 28th June 2000, I conducted a hearing of issues between Cugg and Gibo, which excluded issues involving the additional parties: essentially, these issues concern the obligation to repair the slab over the railway tunnel, and the question of Cugg's liability for Council rates and land taxes. 7 At the end of that hearing, I reserved my decision, and there was shortly afterwards an application by Gibo to re-open the case by calling further evidence. That application was granted, and there was a further hearing on 5th February 2001. I again reserved my decision, and this is the decision arising out of those hearings.