Woy Woy Promenade Pty Ltd v Nu Squeeze Cafe Pty Ltd [2009] NSWCA 107

New South Wales Court of Appeal

CITATION: Woy Woy Promenade Pty Ltd v Nu Squeeze Cafe Pty Ltd [2009] NSWCA 107

HEARING DATE(S): 1 May 2009

JUDGMENT DATE: 14 May 2009

JUDGMENT OF: Giles JA at 1; Hodgson JA at 53; Macfarlan JA at 57

DECISION: Appeal dismissed with costs.

CATCHWORDS: LANDLORD AND TENANT - agreement for lease - shop in new centre - subject to termination if Building Works not completed by stated date - what were Building Works and whether completed - not completed because did not substantially comply with development consent - no question of general principle - election or waiver not raised at trial - whether could be raised on appeal - could have been other evidence - should not be permitted on appeal.

CASES CITED: Coulton v Holcombe (1986) 162 CLR 1; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418.

PARTIES: Woy Woy Promenade Pty Ltd - Appellant Nu Squeeze Cafe Pty Ltd - Respondent

FILE NUMBER(S): CA 40219/08

COUNSEL: D Pritchard & M Holmes - Appellant M Hadley - Respondent

SOLICITORS: McLachlan Thorpe Partners - Appellant Harrington Maguire & O'Brian - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4134/06

LOWER COURT JUDICIAL OFFICER: Curtis DCJ

LOWER COURT DATE OF DECISION: 29 April 2008

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40219/08 DC 4134/06

GILES JA HODGSON JA MACFARLAN JA

Thursday 14 May 2009 WOY WOY PROMENADE PTY LTD v NU SQUEEZE CAFÉ PTY LTD & ORS Judgment 1 GILES JA: In proceedings in the District Court the appellant claimed from the respondents $156,918.43 as rent, outgoings and car parking fees payable under a lease of shop 4 in the Pavilion Retail/Commercial Centre, Woy Woy ("the Pavilion Centre"), together with interest. 2 By the allegations in the statement of claim the appellant claimed on the basis that -