Jobson v The Owners – Strata Plan No. 66870 [2015] NSWSC 776

Supreme Court New South Wales

Medium Neutral Citation: Jobson v The Owners – Strata Plan No. 66870 [2015] NSWSC 776 Hearing dates: 16-20 March 2015 Date of orders: 18 June 2015 Decision date: 18 June 2015 Jurisdiction: Equity Division Before: Darke J Decision: Various items found to have been impermissibly charged by first defendant as Outgoings under sub-leases. Plaintiffs' claims otherwise not made out. Catchwords: REAL PROPERTY – Crown land – sub-leases of berths in a marina – whether use of certain additional berths by sub-lessor constituted breaches of headlease – whether sub-lessor in breach of sub-leases by doing something which might prejudice or give grounds for termination of its interest under headlease – whether existence of additional berths required sub-lessor to vary tenant's contributions

ENVIRONMENTAL PLANNING LAW – Local Environmental Plan provides that agreements imposing restrictions upon the carrying out of development in accordance with consent do not apply – whether carparking provisions in sub-lease are inconsistent with condition of development consent – whether provisions impose restriction upon the carrying out of development in accordance with consent – Pittwater Local Environmental Plan 1993, clause 39(1)

REAL PROPERTY – sub-leases of berths in a marina – sub-lessees obliged to pay share of Outgoings – construction of definition of Outgoings – whether certain amounts paid or payable by sub-lessor "in connection with" marina – whether sub-lessor under an obligation to pay certain amounts – whether certain amounts fell within particular paragraph of definition – whether sub-lessor impermissibly charged amounts as Outgoings Legislation Cited: Crown Lands Act 1989 (NSW) ss 34, 129 to 132 Environmental Planning and Assessment Act 1979 (NSW) ss 28, 80, 96 Strata Schemes (Freehold Development) Act 1973 (NSW) s 19, 28B Strata Schemes Management Act 1996 (NSW) Chapter 3 Cases Cited: Coshott v Ludwig (1997) 8 BPR 15,519 Cumerlong Holdings Pty Limited v Dalcross Properties Pty Limited and Others [2010] NSWCA 214 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd and Others [2011] HCA 27; (2011) 243 CLR 492 Minister for Lands and Forests v McPherson (1990) 22 NSWLR 687 R v Orcher [1999] NSWCCA 356; (1999) 48 NSWLR 273 Saggers v Sydney Market Authority (1998) 66 LGRA 42 Thomas v State of New South Wales [2008] NSWCA 316; (2008) 74 NSWLR 34 W & K Holdings (NSW) Pty Ltd v Laureen Margaret Mayo [2013] NSWSC 1063 Category: Principal judgment Parties: Jane Jobson (in her capacity as executor of the Estate of the late Norman Brett Jobson) (first plaintiff) Jane Jobson (second plaintiff) Claudio Marcolongo (third plaintiff) Petra Klaus (fourth plaintiff) Guthrie Nominees Pty Limited (fifth plaintiff) Torquay Pty Limited (sixth plaintiff) Jonjil Pty Limited (seventh plaintiff) John Durst (eighth plaintiff) Eli Allan John Burns (in his personal capacity and in his capacity as trustee for the Burns Trust) (ninth plaintiff) Richard Fleck (tenth plaintiff) Pryke Pty Limited (as trustee for The Pryke Superannuation Fund) (eleventh plaintiff) Mark Russell Bennett (twelfth plaintiff) Neil Drabsch (thirteenth plaintiff) Julie Drabsch (fourteenth plaintiff) Ruth Mavis Hoekstra (fifteenth plaintiff) Barry Wilson Heaps (sixteenth plaintiff) Toni Adele Heaps (seventeenth plaintiff) Vickie McGrouther (nineteenth plaintiff) Peter Cashman (twentieth plaintiff) Shelley Joy O'Brien (twenty-first plaintiff) Peter Repaja (twenty-second plaintiff) Lynn Loveday (twenty-third plaintiff) Martin Lloyd Payne (twenty-fourth plaintiff)