R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 310

New South Wales Supreme Court

CITATION : R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 310

HEARING DATE(S) : 17/9/07-21/9/07

JUDGMENT DATE : 11 April 2008

JURISDICTION : Equity

JUDGMENT OF : Bryson AJ

Orders Upon the Cross-claim: 1. Give judgment for the Cross-claimants for rent, parking fees, increased outgoings, interest and other charges payable under Lease 8258311P up to the date of this order and thereafter pending the assessment until the Cross-defendants surrender possession. 2. Direct that an Inquiry be held to ascertain and certify the amount payable under Order 1 and further direct that judgment be entered for the amount so certified. 3. Dismiss claim 7(a) in the Second Further Amended Cross-claim. DECISION : 4. Give judgment for the Cross-claimants for damages and indemnity claimed in paras 9 to 12 of the Second Further Amended Cross-claim. 5. Direct that an Inquiry be held to ascertain and certify the amount of damages and indemnity under Order 4 and further direct that judgment be entered for the amount so certified. 6. Upon the Second Further Amended Statement of Claim. Dismiss the claim in paras 27 to 32. 7. Reserve further consideration of consequential orders under Part 8 Division 4 of the Conveyancing Act 1919 particularly section 133G. 8. Reserve all questions of Costs.

CATCHWORDS : LESSOR and LESSEE - lease of commercial premises on Macquarie Street level and Plaza Level of tower in Renzo Piano development Macquarie Street Sydney - issues between lessors and lessees re (1) whether rent conditional on state of premises being suitable for lessees' intended use - implied precondition - held, No.(2) - whether election exercised in accordance with clause in lease varying rent according to number of kiosks - held, it was not (3) whether lessors entitled to restitution by lessees of $75,000 the lessors paid to Owners Corporation to permit penetrations in floor slab for water sewerage and other services - held, they were not - (4) whether lessors entitled to damages for breach of earlier Settlement Deed by making further claim - held, they were - (5) whether Option of Renewal should be extended notwithsanding failures to pay rent, under discretionary power in s.133F(2) Conveyancing Act - review of litigation and disputes in Leasehold relationship - in view of poor quality of relationship, held, relief refused - Judgment for rent and damages to be assessed.