HARREM PTY LIMITED TRADING AS CTH TRANSPORT & SERVICES v TOYO TYRE RUBBER AUSTRALIA LIMITED [2008] NSWSC 776

New South Wales Supreme Court

CITATION : HARREM PTY LIMITED TRADING AS CTH TRANSPORT & SERVICES v TOYO TYRE RUBBER AUSTRALIA LIMITED [2008] NSWSC 776

HEARING DATE(S) : 21, 22, 23, 25 May 2007; 3, 4, 5, 7 December 2007

JUDGMENT DATE : 31 July 2008

JURISDICTION : Equity

JUDGMENT OF : Hall J at 1

Subject to any further submissions from either party, I propose to defer making any final orders until after the completion of the hearing on damages. DECISION : I will provide the parties with an opportunity to make any further submissions as to whether and what findings may be made in relation to the issue pleaded in paragraph 9 of the statement of claim as to the defendant's liability under clause 21(b) of the lease having regard, in particular, to the findings as to the condition of the pavement before and after the lease and the question of the need for replacement of the damaged area. The issue in paragraphs 10 to 12 of the statement of claim as to the validity of the plaintiff's exercise of the option under clause 33 of the lease was not pressed. Provision, accordingly, will be made in the final orders in respect of the pleaded cause of action in those paragraphs.

CATCHWORDS : Landlord and tenant – commercial lease – scope or extent of permitted use – "warehousing, storage and distribution" – warranty by lessor to ensure that premises are in a reasonably fit condition for use at the commencement of the lease – scope of the warranty – construction of terms of lease as to permitted use and special condition permitting loading and unloading of containers – implied term that area on which loading and unloading of containers permitted were fit for the purpose of loading and unloading containers – approach in determining what is a reasonable manner of performing permitted use of leased premises – whether breach of lease and breach of duty of care by lessor in using heavy container handler – knowledge and acquiescence of lessor over nine months