Micalizzi v Hasaj [2008] NSWSC 809

New South Wales Supreme Court

CITATION : Micalizzi v Hasaj [2008] NSWSC 809

HEARING DATE(S) : 01/08/2008

JUDGMENT DATE : 11 August 2008

JURISDICTION : Equity

JUDGMENT OF : Bryson AJ at 1

DECISION : Parties to bring in draft orders.

CATCHWORDS : LESSOR and LESSEE - construction of lease - unclear description of leased area inserted by alteration - objective evidence of parties' intention in their conduct at the time of the alteration - other construction questions on obscure document - no question of principle.

LEGISLATION CITED : Real Property Act 1900 Conveyancing Act 1919 s 129

CASES CITED : Smith v Jones [1954] 1 WLR 1089 Harris v Smith [2008] NSWSC 545

Carmelo Micalizzi - First Plaintiff PARTIES : Sylvana Micalizzi - Second Plaintiff Ilir Hasaj - Defendant

FILE NUMBER(S) : SC 5708/2007

COUNSEL : F Hicks - Plaintiff D J A Mackay - Defendant

SOLICITORS : Sarvaas Ciappara - Plaintiff K A Garling - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON AJ

Monday 11 August 2008

5708/07 CARMELO MICALIZZI & ANOR v ILIR HASAJ JUDGMENT 1 HIS HONOUR: Lease AB 841947P relates to premises at 237 O'Riordan Street Mascot, Folio Identifiers 3 and 4 DP 262142. The plaintiffs own the premises and Mr Micalizzi conducts business as an automotive mechanic in the workshop at the rear. Mr Hasaj is the lessee and he conducts a car wash and associated coffee shop, the larger part of the premises. 2 The lessee named in the Lease was LAC (Maroubra) Pty Limited. The Lease was executed on or about 30 August 2005 and created a term of four years from 23 August 2005 to 22 August 2009. The description of the Leased premises was extremely unsatisfactory. When first executed the property leased was described thus: "PART FOLIO IDENTIFIERS 3/262142 and 4/262142. PART 237 O'Riordan Street Mascot per annexure 'C' hereto attached". Annexure C was a site plan, very small in scale and very indistinct, so that a number of the statements forming parts of the plan cannot be clearly read. There was cross hatching on the site plan which covered the area of the two car wash bays, the building containing the shop and much of the part of the site nearer O'Riordan Street, where there is a front forecourt with an entry from Sarah Street on one side and an exit to Ewan Street on the other side. The cross-hatching did not cover seven car spaces and some open space towards the rear of the land, or the mechanical workshop. A small piece of open space on the Ewan Street side was not hatched. 3 The Lease did not say so but the assumption must be that all the cross-hatched area was the part of the property referred to in the description which was leased. This would be completely impractical if taken altogether literally because customers of the car wash driving their vehicles around the shop building to enter the Carwash at the rear would have to cross an area which was not hatched, and there was no express right to do so. Vehicles driving to and from the mechanical workshop would have to drive across the hatched area and there was no express right to do so. The only toilets on the property were inside the building containing the shop, and the whole building was hatched. It is possible that some of these problems were simplified by text written on the annexure, but this is no use as it cannot be read. If the Lease with Annexure C as part of it were to be given effect there would have to be implications of necessity about the use by one party and the other of parts of the premises for access, and about use of the toilets. 4 The Lease was lodged for registration but the Registrar General understandably refused to register it, on grounds relating to its not being sufficiently clear or legible. 5 The solution adopted by the solicitors who then conducted affairs was as follows. The description of the property leased was altered by ruling through the words "per annexure 'C' hereto attached" and adding instead "being shop 1 and carwash 1". Annexure C was removed from the document. Someone wrote the words "hatched plan" into the description of the property leased, and then ruled them through. These alterations were made in or about early December 2005. The Lease was then relodged; in fact it was relodged twice, on 14 December 2005 and again on 9 January 2006, and it was then registered. Correspondence about the time the Lease was altered and registered as altered without any Annexure C suggests that the alteration was prompted by a wish to obtain registration without preparing a plan to the high standard required by the Registrar General. 6 Annexure B to the Lease sets out standard form clauses incorporated in the Lease. Clause 1.1 includes some interpretation provisions including the following. In this Lease unless the contrary intention appears:- " Building " means the premises described in Item 1 of the Reference Schedule together with any land and improvements used with them or added to them …