Fitness First Australia Pty Ltd v Fenshaw Pty Ltd [2016] NSWCA 207

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fitness First Australia Pty Ltd v Fenshaw Pty Ltd [2016] NSWCA 207 Hearing dates: 4 August 2016 Decision date: 15 August 2016 Before: McColl JA at [1]; Leeming JA at [2]; Payne JA at [58] Decision: 1. Appeal allowed.

2. Set aside orders 1 and 2 made on 1 March 2016.

3. Declare that, upon the proper construction of the terms of the lease between the parties dated 1 July 2002 (registered lease number 9825308), the defendant is entitled to claim no more than 26.52 per cent of the total increases in outgoings contemplated by clause 4.1 of the lease, being increases in outgoings since the periods set out in clause 4.2 of the lease.

4. Declare that, upon the proper construction of the terms of the lease between the parties dated 1 October 2004 (registered lease number AB170352), the defendant is entitled to claim no more than 17.62 per cent of the total increases in outgoings contemplated by clause 4.1 of the lease, being increases in outgoings since the periods set out in clause 4.2 of the lease.

5. Direct the parties to file and serve within 14 days a form of agreed orders for the repayment of overpaid rent and interest, or, in default of agreement, proposed orders and short submissions in support.

6. The respondent to pay the appellant's costs at first instance and on appeal. Catchwords: LANDLORD AND TENANT – two long term commercial leases between same parties in same building – statutory charges and outgoings – lessee requiring payment as additional rent of any increase in outgoings "in respect of the Premises" – whether lessee obliged to pay whole of increase in outgoings, or proportionate share of increase in outgoings – construction of "in respect of the Premises" in each lease Legislation Cited: Land Tax Act 1956 (NSW) Land Tax Management Act 1956 (NSW) Cases Cited: Commissioner of Taxation of the Commonwealth of Australia v Scully [2000] HCA 6; 201 CLR 148 Fitness First Australia Pty Limited v Fenshaw Pty Limited [2016] NSWSC 47 International Energy Group Ltd v Zurich Insurance plc [2015] UKSC 33; [2016] AC 509 Lend Lease Financial Planning Ltd v Southcap Pty Ltd (Court of Appeal (Qld), 2 June 1998, unrep) Robbins v Federal Commissioner of Taxation (1974) 129 CLR 332 The Queen v Khazaal [2012] HCA 26; 246 CLR 601 Tooth & Co Ltd v Newcastle Developments Ltd (1966) 116 CLR 167 Victoria v Tatts Group Ltd [2016] HCA 5; 90 ALJR 392 Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA 45; 233 CLR 528 Workers' Compensation Board (Q) v Technical Products Pty Ltd (1988) 165 CLR 642 Category: Principal judgment Parties: Fitness First Australia Pty Ltd (Appellant) Fenshaw Pty Ltd (Respondent) Representation: Counsel: I Jackman SC, S Clemmett (Appellant) T Lynch SC, D Hand (Respondent)