Holus Bolus Pty Ltd v The Wicko Pty Ltd [2012] NSWSC 497

Supreme Court New South Wales

Medium Neutral Citation: Holus Bolus Pty Ltd v The Wicko Pty Ltd [2012] NSWSC 497 Hearing dates: 26.03.12; 27.03.12 Decision date: 16 May 2012 Before: Nicholas J Decision: Par 50 Catchwords: LANDLORD AND TENANT - construction of hotel lease - works required for compliance with fire safety standards under Building Code of Australia - whether works "of a structural nature" - question of fact and degree - no question of general principle Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Brew Bros. Ltd v Snax (Ross) Ltd [1970] 1 QB 612 Di Francesco & Ors v Blantrix Pty Ltd & Ors [2004] NSWLEC 669 R v Lowe (1954) 19 LGR (NSW) 345 Wates v Rowland [1952] 2 QB 12 Category: Principal judgment Parties: Holus Bolus Pty Ltd - plaintiff The Wicko Pty Ltd - defendant Representation: Counsel: K Andronos/D Tynan - plaintiff P A Regattieri - defendant Solicitors: Colquhoun Murphy Solicitors - plaintiff Braye Cragg Solicitors - defendant File Number(s): 09/290755

Judgment 1By its amended statement of claim filed 20 December 2011 the plaintiff seeks declaratory relief, an order for specific performance, and damages arising from the defendant's failure to carry out fire safety works at the Terminus Hotel, Quirindi (the hotel) under a covenant contained in a lease dated 19 January 2004 between the defendant as lessor and the plaintiff as lessee. 2The plaintiff is a family company of which the directors and shareholders are Mr Simon Lewis and his wife, Mrs Jane Lewis. Mr Lewis is the licensee. 3The defendant is, and has been since about January 2008, the registered proprietor of the land on which the hotel is situated. Until about April 2004 the registered proprietor was Mr Lloyd Frater, and between about April 2004 and about January 2008 the registered proprietor was Sonspur Pty Ltd. 4The premises at which the hotel is conducted comprises a public bar, accommodation including 14 units of five single rooms, three double rooms, one twin room, one triple room, and four family rooms. It also includes a restaurant licensed to seat 140 people, and a beer garden. It is a three storey building. 5By letter of 20 April 2007 the Liverpool Plains Shire Council (the council) notified the plaintiff of the requirement to carry out works in compliance with the fire safety provisions under the Building Code of Australia (the code), failing which the plaintiff would be ordered to cease conducting accommodation activities on the premises. A revised list of fire safety works (the works) was served on the defendant by the council by letter of 16 June 2011. By letter of 20 January 2012 the council informed the defendant of its intention to issue an order requiring completion of the works within a specified time. These requirements underlie the principle issue in these proceedings which is whether the works are of a structural nature within cl 12.2 of the lease and, accordingly, are works which the defendant is obliged to perform.