Kavia Holdings Pty Ltd v Bevillesta Pty Ltd [2006] NSWSC 633

New South Wales Supreme Court

CITATION : Kavia Holdings Pty Ltd v Bevillesta Pty Ltd [2006] NSWSC 633

HEARING DATE(S) : 14 June 2006

JUDGMENT DATE : 27 June 2006

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Plaintiff entitled to declaration of right.

CATCHWORDS : REAL PROPERTY – EASEMENT – ANCILLARY RIGHT – Whether demise of restaurant premises carried implied right to store garbage on common property – rule in Wheeldon v Burrows applied.

LEGISLATION CITED : Real Property Act 1900 (NSW) – s.42

- Arndale (Kilkenny) Pty Ltd v Gaetjens (1970) 44 ALJR 434 - Hart v MacDonald (1910) 10 CLR 417 - Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 CASES CITED : - "Lessees Ancillary Rights" (2000) 74 ALJ 384, Young CJ in Eq - Schwann v Cotton [1916] 2 Ch 459 - Wheeldon v Burrows (1879) 12 Ch D 31 - Wilcox v Richardson (1997) 43 NSWLR 4

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

FILE NUMBER(S) : SC 1290/06

COUNSEL : M.A. Ashhurst – Plaintiff B.A.J. Coles QC, S.A. Kerr – Defendant

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

Introduction and issues

1 The Plaintiff ("Kavia") leases from the Defendant ("Bevillesta") substantial premises in the Festival Markets Building at Darling Harbour upon which Kavia operates a restaurant known as "Jordon's Seafood Restaurant". The restaurant has a seating capacity of over 600. 2 The restaurant has been in operation since about 1988. Until early January 2006, there was an arrangement (to use a neutral term) between Kavia and its predecessor in title on the one hand and Bevillesta and its predecessor in title on the other, whereby the garbage from the restaurant would be taken from the restaurant to an area commonly known as "the garbage room", which is located on the common property within the Festival Markets Building. From there it would be removed by Bevillesta and its predecessor, the cost of removal being paid in the first instance by Bevillesta. The cost would be included in the outgoings for the Building and, under the terms of its lease, Kavia and its predecessor would pay a proportion of those outgoings. 3 On 17 January 2006, Bevillesta advised Kavia that, by the terms of its lease, Kavia was required to store its garbage on the restaurant premises, not in the garbage room and to dispose of the garbage directly from the restaurant premises at its own cost. Bevillesta advised that the garbage room would be closed on 20 January 2006. 4 In these proceedings, Kavia seeks declarations that Bevillesta is required to permit it to store the garbage from the restaurant either in the garbage room which had previously been provided on the common property since 1988 or, alternatively, on some other part of the common property suitable to Kavia, and that Bevillesta is required to remove that garbage, the cost being added to the outgoings of the building to which Kavia is liable to contribute a proportion under the terms of the lease. 5 Kavia's claim, as pleaded in the Amended Statement of Claim, rested in the alternative upon: