Shree Shirdi Sai Sansthan Sydney Limited v Nirmal Taluja (No 2) [2015] NSWSC 1180

Supreme Court New South Wales

Medium Neutral Citation: Shree Shirdi Sai Sansthan Sydney Limited v Nirmal Taluja (No 2) [2015] NSWSC 1180 Hearing dates: 10 August 2015 Date of orders: 21 August 2015 Decision date: 21 August 2015 Before: Sackar J Decision: See [16] Catchwords: PROPERTY – easements – grant of an easement – construction of lease agreement – whether an easement or a licence – characteristics of an easement Legislation Cited: N/A Cases Cited: Sigiriya Capital Pty Ltd v Scanlon (2013) 97 ACSR 183; [2013] NSWCA 401 Texts Cited: N/A Category: Consequential orders (other than Costs) Parties: Shree Shirdi Sai Sansthan Sydney - plaintiff Nirmal Taluja - defendant Representation: Counsel: D Murr SC and L Einstein – plaintiff K Smark SC - defendant

Solicitors: Rickards Legal – plaintiff WMD Law – defendant File Number(s): 2010/375468 Publication restriction: N/A

Judgment

Background and notice of motion 1. On 19 December 2014 I delivered the primary judgment in this matter: Shree Shirdi Sai Sansthan Sydney Limited v Taluja [2014] NSWSC 1825 (primary judgment). Terms defined in that judgment bear the same meaning in this judgment. The parties asked for the matter to be relisted due to a dispute over the proposed final orders. 2. The background facts to this matter are set out at [4]-[18] of the primary judgment. In brief, the matter concerned a dispute in relation to an option agreement regarding 800 square metres of land surrounding a chapel (known as the Memorial Chapel). The plaintiff is a religious organisation devoted to the worship of an individual named Shirdee Sai Baba, whom it regards as a saint. The defendant is the registered proprietor of the property the subject of the dispute. 3. The plaintiff and defendant entered into a lease agreement which included an option to renew (cl 2 of Annexure A) and an option to purchase (cl 12 of Annexure A). The primary dispute concerned whether the plaintiff exercised the option to purchase. The issue now exciting the attention of the parties is whether the term "right of use" in cl 12.3 of the lease should be construed as granting an easement. Clause 12.3 is in the following terms: 12.3 We will provide right of use over the Common Areas and Right of Way to the Land prior to the Transfer other than the Brundah Dining Hall.