Charbel CJ Pty Limited & Anor v Owners Corporation Strata Plan 69470 [2005] NSWCA 241

New South Wales Court of Appeal

CITATION: Charbel CJ Pty Limited & Anor v Owners Corporation Strata Plan 69470 [2005] NSWCA 241

HEARING DATE(S): Tuesday 14 July 2005

JUDGMENT DATE: 10 August 2005

JUDGMENT OF: Mason P; Tobias JA; Brownie AJA

DECISION: (1) Appeal allowed; (2) Set aside Orders 1 and 2 made by Burchett A-J on 17 March 2005 and in lieu thereof order that (a) The first appellant by itself its servants and agents be restrained from causing or permitting smells, fumes or gases to be discharged from premises known as Lot 1 in commercial strata plan 69948 which unreasonably interfere with the use and enjoyment of the Shared Areas of the Building, the other Retail Shop or the Residential Flat Building as those terms are defined in the Strata Management Statement registered on 10 March 2003 (b) The second appellant by itself its servants and agents be restrained from causing or permitting smells, fumes or gases to be discharged from premises known as Lot 2 in commercial strata plan 69948 which unreasonably interfere with the use and enjoyment of the Shared Areas of the Building, the other Retail Shop or the Residential Flat Building as those terms are defined in the Strata Management Statement on 10 March 2003 ; (3) Set aside Order 3 made by Burchett A-J on 17 March 2005 and in lieu thereof order that (a) The appellants pay two thirds of the respondent's costs of the proceedings at first instance (b) Each party pay its own costs of the appeal

CATCHWORDS: PROPERTY- Strata plans - Strata Management Statement provided that "owners" of commercial lots in strata building must not use lots as fast food outlets - Lots used by lessees as fast food outlets - Proper construction of Statement - Whether obligation in Statement imposed upon lessees or proprietors only - Whether lessees in breach of covenant contained in s 28W(2)(b) of Strata Schemes (Freehold Development) Act 1973 - PROCEDURE - Whether leave should be granted to raise point not taken in court below