Bonafair Holdings Pty Ltd v Hungry Jack’s Pty Ltd [2016] NSWCA 276

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bonafair Holdings Pty Ltd v Hungry Jack's Pty Ltd [2016] NSWCA 276 Hearing dates: 15 August 2016 Decision date: 06 October 2016 Before: McColl JA at [1] Meagher JA at [2] Sackville AJA at [3] Decision: 1. Appeal dismissed. 2. Cross-appeal dismissed. 3. No order as to the costs of the appeal and cross-appeal. Catchwords: LANDLORD AND TENANT – construction of lease – whether lessee obliged to pay the cost of replacing the main electrical switchboard (MSB) servicing the leasehold premises – whether lessee liable for deterioration of MSB during the period preceding commencement of the lease LANDLORD AND TENANT – lessee covenants to pay "land tax assessed on a single holding basis" – leasehold premises held in a "special trust" – lessor not entitled to take advantage of tax free threshold usually available – whether lessor entitled to recover from lessee actual amount of land tax paid in respect of the premises LANDLORD AND TENANT – covenant to repair – whether primary Judge erred in finding that repairs to the premises were required by reason of "reasonable wear and tear" Legislation Cited: Land Tax Act 1956 (NSW), s 3AL Land Tax Management Act 1956 (NSW), s 3A Occupational Health and Safety Act 2000 (NSW), s 8 Retail Leases Act 1994 (NSW), s 26(1)(b), s 7 Cases Cited: Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWCA 224; [2007] NSW ConvR 56-167 Bonafair Holdings Pty Ltd v Hungry Jack's Pty Ltd, unrep, 10 November 2015, District Court (Curtis DCJ) Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Haskell v Marlow [1928] 2 KB 45 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Regis Property Co Ltd v Dudley [1959] AC 370 Tooth & Co Ltd v Newcastle Developments Ltd (1966) 116 CLR 167; [1966] HCA 57 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Category: Principal judgment Parties: Bonafair Holdings Pty Limited (Appellant/Cross Respondent) Hungry Jack's Pty Limited (Respondent/Cross-Appellant) Representation: Counsel: Mr S A Bogan (Appellant/Cross Respondent) Mr C E Bannan (Respondent/Cross-Appellant)