Nicholas Georgouras v Bombardier Investments No. 2 Pty Ltd [2011] NSWSC 741

Supreme Court New South Wales

Medium Neutral Citation: Nicholas Georgouras v Bombardier Investments No. 2 Pty Ltd [2011] NSWSC 741 Hearing dates: 11/7/2011, 12/7/2011 Decision date: 18 July 2011 Jurisdiction: Equity Division - Commercial List Before: Einstein J Decision: 1.The Court declares that the lease be held void as and from the occasion when the Warringah Council served on both the plaintiff and the defendant the first notice of intention to give an order in respect to the leased premises. 2. The plaintiff is entitled to nominal damages of $5. Catchwords: Commercial Lease - Breach of term of lease - Statutory compliance - Allegation of fraud - Equitable damages - Nominal damages Legislation Cited: Environment Planning and Assessment Act 1979 (NSW) Local Government Act 1993 Cases Cited: Granada Theatres Pty Ltd v Freehold (Leytonstone) Investment [1959] Ch 592 Magill v Magill [2006] 226 CLR 551 Category: Principal judgment Parties: Nicholas Georgouras (Plaintiff) Bombardier Investments No. 2 Pty Ltd (Defendant) Representation: F Salama (Defendant0 Wood Marshall Williams Lawyers (Defendant) File Number(s): 2010/146839

Judgment

The proceedings 1The proceedings before the Court concern a commercial lease entered into on or about 1 February 2009 granted by the defendant as landlord of the leased premises to the plaintiff [Mr Nicolas Georgouras] as lessee. 2The lease had a term of three years with an option to renew for a period of three further years. 3Relevantly the lease was in respect to lot 10, SP 33756, 27 Dale Street, Brookvale New South Wales. 4The central issues were as follows: (1)Did the defendant make a representation in the Lease dated 1 February 2009 that misled or deceived the plaintiff to enter into it? (2)Did the plaintiff breach any term of the Lease? (3)If yes to question 2 above, what were the breaches? (4)If yes to question 2 above, was the breach a breach of an essential term that entitled termination of the Lease by the defendant? (5)Did the defendant breach any term of the lease? (6)If yes to question 5 above, what were the breaches? (7)If yes to question 5 above, was the breach a breach of an essential term that entitled termination of the Lease by the plaintiff? (8)Upon the service of the Notice of Intention to Give an Order on the plaintiff dated 12 February 2010 from Warringah Shire Council, did the plaintiff act unreasonably in withholding consent to the defendant as landlord/lessor to enter the Leased Premises in accordance with the Lease to inspect and rectify any defect in title such as to make the Leased Premises compliant with Development Consent 86/414 dated 9 October 1986? (9)Upon the service of the Warringah Council Order on the plaintiff dated 3 June 2010 from Warringah Shire Council, did the plaintiff act unreasonably in withholding consent to the defendant as landlord/lessor to enter the Leased Premises in accordance with the Lease to inspect and rectify any defect in title such as to make the Leased Premises compliant with Development Consent 86/414 dated 9 October 1986? (10)Did the plaintiff act unreasonably since the commencement of the Lease in its dealings with the defendant? (11)Did the plaintiff unreasonably withhold consent in not permitting the defendant and/or its servants and/or its agents to enter the Leased Premises to carry out any necessary works of a rectification nature in order to have the Lease Premises compliant with Development Consent 86/414 dated 9 October 1986? (12)Did the defendant act unreasonably since the commencement of the Lease in its dealings with the plaintiff? (13)What loss and damage has the plaintiff suffered, if any? (14)Did the conduct of the plaintiff in unreasonably withholding consent to the defendant cause/contribute to any loss and damage suffered by the plaintiff? (15)Did the plaintiff's own conduct cause its own loss and damage? (16)Were the Leased Premises capable of being made compliant with Development Consent 86/414 dated 9 October 1986? (17)Did the defendant act reasonably in attempting to rectify the Leased Premises so that it was made compliant with Development Consent 86/414 dated 9 October 1986? (18)Has the plaintiff mitigated his losses?