Maroubra Pool Café Pty Ltd v Fedele [2017] NSWSC 1722

Supreme Court New South Wales

Medium Neutral Citation: Maroubra Pool Café Pty Ltd v Fedele [2017] NSWSC 1722 Hearing dates: 30 – 31 October 2017; 1 – 2 November 2017 Date of orders: 12 December 2017 Decision date: 12 December 2017 Jurisdiction: Equity Before: Darke J Decision: See paragraphs [120] and [121]. Catchwords: LEASES AND TENANCIES – leases – construction of leases – general principles of construction – whether certain area forms part of demised premises – proper commencement date of lease – whether lessor required to perform certain building works

LEASES AND TENANCIES – leases – termination of leases – termination due to alleged change of control – whether shares in plaintiff company transferred without lessor's consent – incorrect records of share transfers lodged with ASIC – no share transfers occurred – termination invalid

LEASES AND TENANCIES – leases – obligations of lessor – whether lessor obliged to consent to lessee's application to modify development consent in relation to trading hours – implied duty to co-operate to allow other party to have benefit of contract – terms of lease support implication of obligation – lessor required to give its consent

TORTS – conversion – title to goods – standing to sue – where plaintiff claimed that defendants had disposed of stored café equipment without its consent – where plaintiff alleged that title to goods acquired by transfer – transfer of title not established Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Competition and Consumer Act 2010 (Cth), Sch 2 Conveyancing Act 1919 (NSW), s 129 Environmental Planning and Assessment Act 1979 (NSW), s 96 Uncollected Goods Act 1995 (NSW) Cases Cited: Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342 CF & SP Pty Ltd v FAI General Insurance Co Ltd (Supreme Court (NSW), Bryson J, 17 December 1998, unrep) Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 343 ALR 58; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Sachs v Miklos [1948] 2 KB 23 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Category: Principal judgment Parties: Maroubra Pool Café Pty Ltd (Plaintiff) Antonio Fedele (First Defendant) Maria Fedele (Second Defendant) Representation: Counsel: Mr M Ashhurst SC with Mr P M Barham Mr C W Robinson (Defendants)