Kavia Holdings Pty Ltd v Bevillesta Pty Ltd (No 2) [2006] NSWSC 1160

New South Wales Supreme Court

CITATION : Kavia Holdings Pty Ltd v Bevillesta Pty Ltd (No 2) [2006] NSWSC 1160

HEARING DATE(S) : 14 July 2006, and later written submissions

JUDGMENT DATE : 10 November 2006

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Leave to amend granted; declarations made as sought.

CATCHWORDS : PRACTICE AND PROCEDURE – PLEADING – AMENDMENT – Whether leave should be given to Plaintiff to amend declarations sought after reasons for judgment published. - CONTRACT – CONSTRUCTION – Whether lessor or lessee required by lease to bear cost of rubbish removal from common property.

LEGISLATION CITED : Civil Procedure Act 2005 (NSW) – s.56

CASES CITED : Kavia Holdings Pty Ltd v Bevillesta Pty Ltd [2006] NSWSC 633 Wheeldon v Burrows (1879) 12 Ch D 31

PARTIES : Kavia Holdings Pty Ltd – Plaintiff Bevillesta Pty Ltd – Defendant

FILE NUMBER(S) : SC 1290/06

COUNSEL : M.A. Ashhurst – Plaintiff S.A. Kerr – Defendant

SOLICITORS : Aubrey F. Crawley & Co – Plaintiff Bartier Perry – Defendant

1290/06 Kavia Holdings Pty Ltd v Bevillesta Pty Ltd (No 2)

JUDGMENT 10 November, 2006

Introduction

1 The Plaintiff ("Kavia") leases from the Defendant ("Bevillesta") substantial restaurant premises in the Festival Markets Building at Darling Harbour. In these proceedings Kavia sought a declaration that Bevillesta was required to permit it "to store" garbage generated by the restaurant business in specified areas of the Festival Markets Building or, alternatively, upon some other area in the common property, as might be designated by Bevillesta. 2 The proceedings came on for hearing before me on 14 June 2006 and I delivered judgment on 27 June: Kavia Holdings Pty Ltd v Bevillesta Pty Ltd [2006] NSWSC 633. I will assume for the purposes of this judgment that the reader will acquaint himself or herself with the previous judgment. 3 I held: "Kavia is entitled to a declaration to the effect that it may store garbage from the restaurant premises upon some convenient part of the common property in the Festival Markets Building for the purpose of having the garbage removed from the Festival Markets Building. I do not think that this implied or ancillary right gives Kavia some sort of prescriptive right over the garbage room or over the loading dock nor does it entitle Kavia to stipulate, in its own discretion, where that area is to be located. However, the location must be reasonably convenient to the demised premises." 4 I stood the proceedings over for a short time to enable Kavia to bring in Short Minutes of Order reflecting my reasons. Correspondence ensued between the parties. The matter was listed on 13 July 2006. The parties disagreed about the form of the declaration which ought to be made. 5 It became apparent that Kavia believed that the declaration which I had foreshadowed in my judgment meant that it would be entitled to leave its garbage on that part of the common property designated by Bevillesta, that Bevillesta would be responsible for the removal of the garbage, and that Bevillesta would be reimbursed by Kavia for the cost of removal pursuant to Kavia's obligations under the sub-lease to contribute to "Operating Expenses" for the Festival Markets Building. 6 Bevillesta, on the other hand, took the position that the word "store" in the declaration should be retained in the declaration, despite Kavia's wish to change it somewhat, because the word "store" did not necessarily mean that Kavia was entitled to leave the garbage for ultimate removal by Bevillesta: "store" could mean "leave for the time being", the question of who was ultimately responsible for removal and who was ultimately responsible for paying the cost thereof being left unresolved. 7 It became clear to me in the course of discussion that Bevillesta, having been unsuccessful in its defence of the proceedings, nevertheless now wished to have the declaration worded in such a way as would leave it free to assert later that the very question which these proceedings were entitled to settle – namely, who was responsible for disposing of Kavia's rubbish and at whose expense – was still open for debate. 8 It seemed to me that it was unlikely that any variation of the words of the declaration as originally sought by Kavia would address the real issue between the parties because the real issue – i.e., who is to pay – had not expressly been made the issue in the proceedings by the terms of the declaration sought. Mr Ashhurst, who appears for Kavia, says, and I accept, that Kavia believed that resolution of the question posed in the declaration as originally sought would automatically resolve the question of who was to pay for the cost of removal. However, Bevillesta does not see the matter that way. Whether leave to amend should be granted